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Clark v. Thomas

United States District Court, D. Nevada

June 6, 2014

Michael Clark, Plaintiff.
John Thomas, Defendant.


JANNIFER A. DORSEY, District Judge.

This 1983 civil-rights action is brought by Michael Clark for corrections officer John Thomas's alleged role in allowing another inmate to assault Clark while he was detained in Nevada's Southern Desert Correctional Center. Thomas filed omnibus motions in limine on July 8, 2013, which Clark timely opposed on July 22, 2013.[1] The Court granted a motion to stay trial at the July 29, 2013, calendar call and denied the motions in limine as moot.[2] This case was reassigned is now scheduled for trial beginning July 8, 2014.[3]

On May 15, 2014, Defendant renewed his motions in limine.[4] The Court now considers those renewed motions and Clark's previously filed response to them.[5] Having considered the parties' submissions, the Court grants in part and denies in part Thomas's motions in limine consistent with the discussion below.


The Federal Rules of Evidence do not explicitly authorize motions in limine, but under the district courts' trial-management authority, judges can rule on pretrial evidentiary motions.[6] Pretrial consideration avoids the futile attempt to "unring the bell" when jurors see or hear inadmissible evidence, even when it is stricken from the record.[7] It may also save time by minimizing side-bar conferences and other trial disruptions and by preventing the need to call some witnesses.[8]

These considerations are weighed against the court's ability to consider evidence in the context of trial, where the court is "better situated... to assess the value and utility of evidence."[9] Limine rulings are provisional; they are "not binding on the trial judge [who] may always change his mind during the course of a trial."[10] Denying a motion in limine does not guarantee that all evidence raised in the motion will be admissible at trial.[11] Instead, it "merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded."[12]

A. First Motion in Limine: Thomas's Request to Preclude Clark from Calling on Undisclosed Expert Witnesses

Thomas argues that Clark should be prevented from having any expert witness testify at trial because Clark did not identify any expert during the discovery process as the Court's rules require.[13] Federal Rule of Civil Procedure 26(a)(2)(A) states that "a party must disclose to the other parties the identity of any [expert] witness it may use at trial to present evidence." Under Rule 26(a)(2)(D), "A party must make these disclosures at the times and in the sequence that the court orders." In this case, Magistrate Judge Foley's October 27, 2011, scheduling order gave the parties until December 20, 2011, "to disclose experts pursuant to Fed.R.Civ.P. 26(a)(2)."[14] Thus, if Clark wanted to offer expert-opinion testimony, he had to tell Thomas about that expert witness by December 20, 2011.

Rule 37(c)(1) "gives teeth to Rule 26's disclosure requirements by forbidding the use at trial of any information that is not properly disclosed."[15] This sanction is "self-executing" and "automatic" so that parties are strongly motivated to comply with the rules.[16] Even if there is no express court order on disclosure-and even without evidence of bad faith-"exclusion is an appropriate remedy for failing to fulfill the required disclosure requirements of Rule 26(a)."[17] Exclusion can be appropriate even if barring experts will make it "much more difficult, perhaps almost impossible" for a party to prove his case at trial.[18] Under Rule 37(c)(1), the trial court can decide to allow experts only if the failure to disclose "was substantially justified or is harmless."[19]

In his objection to the original motions in limine, Clark did not respond to the substance of Thomas's requests.[20] Instead, Clark argued that defense counsel "had the opportunity to meet up and confer [as] to what is relevant and irrelevant, " failed to hold any such pretrial conferences with Clark, and consequentially cannot now "file any motion after the due day or deadline, this court simply do[es] not have enough time to respon[d]."[21] Clark urged that the defense should make any objections at trial and wrote that he would "be at [his] best [and] not... out of line."[22] While the Court acknowledges Clark's effort to comply, it also addresses these motions on their merits.

Judge Foley's scheduling order was issued more than two years and six months ago, the expert-disclosure deadline passed more than two years and five months ago, and Clark has not offered any justification for not identifying any experts. Regardless of Clark's reason for not identify any expert, because he did not identify an expert witness before the deadline expired in December 2011, Clark cannot offer any expert-opinion evidence at trial. This motion is granted.

B. Second Motion in Limine: Thomas's Request to Preclude Evidence of Clark's Damages Associated with Medical Care, Lost Wages, and Ability to Work

1. Past and future damages, including medical care and lost wages

Thomas argues that Clark should be prevented from seeking any past or future damages.[23] Past damages are for harm that happened in the past, such as medical costs for a surgery that has already been performed.[24] Future damages are for costs that will be incurred in the future for injuries that happened in the past; it could be that the plaintiff's injuries will require medical treatment, for example, or will prevent him from working when he would have been able to earn money.[25] Thomas urges that because Clark has not timely disclosed future-damages calculations-and because Clark has not named any expert witness like a doctor who can testify about Clark's medical condition, prognosis, or need for future treatment, or an economist or accountant who can testify about lost-wages calculations-Clark should be prevented from saying anything about any damages whatsoever.[26]

Federal Rule of Evidence 701 states that non-expert or lay-person opinion testimony is limited to statements "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."[27] In addition, Rule 602 permits a witness to testify about a matter if he has personal knowledge about it. Clark may offer testimony that could support damages if what he says is (1) logically based on what he has personally experienced, (2) focused on helping the jury determine facts that are important to deciding the case, and (3) not the kind of testimony that an expert would offer. The same rules apply to any other lay, non-expert witness who may testify about Clark's prison experiences, Clark's apparent physical condition to the extent these witnesses personally observed it, Clark's apparent ability to work, or other damages-related facts if these witnesses have direct, personal knowledge of these facts.

Clark has not disclosed any experts and is now barred from offering any expert testimony at trial.[28] If Clark or any of his witnesses testifies, therefore, they cannot speak as medical experts, offer any diagnosis or prognosis about Clark's medical condition, or testify as any other kind of experts. Additionally, Clark is cautioned that if he intends to introduce any medical records, they will need to be properly authenticated by the medical-care providers' custodians of records, and he is cautioned that the rules of discovery may bar him from attempting to show the jury any documents or other evidence that was not timely disclosed to the defendant before the discovery deadline or authenticated by a proper witness with direct, personal knowledge of the document's authenticity.

Clark is permitted to put on evidence about his damages within the boundaries established for lay-witness testimony, and the jury will make determinations about each witness's credibility.[29] The motion to preclude all damages evidence is therefore denied.

2. Evidence regarding Clark's ability to work

Thomas also asks the Court to prevent Clark from saying anything that indicates he is unable to work because of Terry's alleged assault.[30] The defense urges that allowing such references "without evidentiary basis" would "inflame the jury, cause speculation, and unfairly prejudice" him.[31] Clark and his witnesses with personal knowledge of Clark's employability may testify about his ability to work if what they say is (1) logically based on a personal experience, (2) focused on helping the jury decide facts important to deciding the case, and (3) not the kind of testimony that an expert would offer. In short, Clark's testimony and that of any witnesses he may call must comply with Rule 602 and Rule 701 of the Federal Rules of Evidence.[32] For example, such lay testimony might include a discussion of the type of work that Clark is qualified to do, what physical limitations he is experiencing that impact his ability to perform that work, how those limitations stem from the attack by Terry, and what efforts Clark has made to overcome those limitations and obtain employment despite them. Clark may not offer expert, medical, or scientific evidence about his ability or inability to work or about the amount of money he has lost or will lose in the future due to a lack of employability because he disclosed no expert. This motion in limine to preclude all evidence of inability to work is denied, subject to these limitations.

C. Third Motion in Limine: Thomas's Request to Preclude Clark from Seeking Injunctive Relief at Trial

Thomas seeks to preclude Clark from seeking injunctive relief at trial.[33] In his amended complaint, Clark prays for "injunctive relief for medical care and expenses for damages to right eye."[34] The defense appears to concede that such relief might be appropriate if Clark was still an inmate in the state of Nevada, but Clark is no longer detained.[35] "An inmate's release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison's policies unless the suit has been certified as a class action."[36] This is because, once released, the plaintiff "is no longer subject to the prison conditions or policies he challenges."[37]

Clark is prohibited from asking the jury for an injunction for a separate reason: injunctive relief is an equitable remedy awarded by the court, not a jury.[38] Thus, the request for an injunction is one to be considered by the Court sitting in equity, not the jury. And this Court (sitting in ...

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