Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 1 of 13 PageID 3428

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1 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 1 of 13 PageID 3428 D.B., UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA - ORLANDO DIVISION Plaintiffs, v. ORANGE COUNTY, FLORIDA; JOHN C. "J.D." DAVIS, JOHN DOE 1-13, and JOSH BAILEY, CASE NUMBER: 6:13-cv-434-Orl- 31DAB Defendant. / DEFENDANT ORANGE COUNTY'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE WITH INCORPORATED LEGAL MEMORADUM COMES NOW Defendant, ORANGE COUNTY, FLORIDA ("ORANGE COUNTY"), by and through its undersigned counsel and files the following Response in Opposition to Plaintiff's Motion in Limine: Plaintiff filed a Motion in Limine, requesting the Court enter an order inlimine, prohibiting the introduction of evidence, argument, or reference as to twenty three topics or matters. Many of the requested topics request a ruling on general, broad categories of items that are not appropriate, nor specific enough, for an order at this time. For the remaining items referenced herein, the Plaintiff has not set forth sufficient bases for the Court excluding such evidence and thus Plaintiff's Motion should be denied. LEGAL MEMORANDUM A. The Plaintiff's Request to Exclude General Categories or Topics in Paragraphs 6, 10, 11, 12, 13, 15, and 17 are not Proper for Motion in Limine. A court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds. Stewart v. Hooters of America, 2007 WL (M.D.

2 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 2 of 13 PageID 3429 Fla. 2007) (citing Luce v. United States, 469 U.S. 38, 41). Additionally, motions in limine are generally disfavored, because admissibility questions should be ruled upon as they arise at trial. Stewart, 2007 WL at *1; see also Amegy Bank Nat'l Assoc. v. DB Private Wealth Mortgage, LTD, 2014 WL , *1 (M.D. Fla. 2014) ([i]f evidence is not clearly inadmissible, evidentiary rulings must be deferred until trial to allow questions of foundation, relevancy, and prejudice to be resolved in context"). In the present matter the Plaintiff has included in his Motion in Limine a number of broad, general categories of topics, not based on any specific testimony or evidence from discovery. These are listed in Paragraphs 6, 10, 11, 12, 13, 15, and 17 of the introduction of Plaintiff's Motion. They include the following: Any reference to this case either directly or implicitly being the type of case that causes a delay or backlogs in the court systems ( 6 and Section E of Plaintiff's Motion). Stating any personal opinions about the merits of the case, the credibility of the witnesses, or the culpability of the Plaintiff. ( 10 and Section H of Plaintiff's Motion) Any evidence of prior unrelated injuries, chronic medical conditions or medical care. ( 11 and Section I of Plaintiff's Motion). "Any statements that would be degrading or humiliating to the Plaintiff or counsel by referring to them as 'greedy', the case is 'frivolous' or arguing or implying they are only bring the lawsuit for money; Any statement or argument that that Plaintiff's claim is 'smoke and mirrors' or seeks to confuse the jury, or other similar statements, as such statements...." ( 12 and Section K of Plaintiff's Motion). Any reference alluding that a verdict for the Plaintiff could invite other lawsuits, crowd courtrooms, increase insurance premiums or taxes ( 13 and Section J of Plaintiff's Motion). The Defense should be precluded from any attack on Plaintiff's character. ( 15 of Plaintiff's Motion). Counsel shall not make any statement that attempts to curry favor with the jury. ( 17 of Plaintiff's Motion). 2

3 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 3 of 13 PageID 3430 These requested categories are too broad to be ruled upon at this time, without any indication that any improper or prejudicial statements or evidence would even arise, and thus Plaintiff's Motion should be denied as to these requests. In Paragraph 6 of Plaintiff's Motion, Plaintiff asks that any statements relating to cases such as the instant one causing a "back log" in our system. Further, Plaintiff asks that any such reference "either directly or implicitly" should be excluded. It is unclear what all types of statements or evidence Plaintiff believes may implicitly refer to the objectionable subject, and for that reason an order in limine is inappropriate at this time. Paragraph 10 of Plaintiff's Motion requests the Court exclude any personal opinions about the merits of the case, credibility of the witnesses, or the culpability of the Plaintiff. This is similarly too broad and general, and provides no indication as to why an order is required in limine on this topic. In Paragraph 11 of the Motion Plaintiff requests exclusion of "any evidence of prior unrelated injuries, chronic medical conditions or medical care." The broad exclusion of any and all such evidence would be improper in this case. First, Plaintiff does not clarify what is "unrelated" and what Plaintiff would consider related. For example, the Plaintiff has outlined extensively in his filings that Plaintiff is a transgender individual and clearly intends to rely upon characteristics related to this categorization or condition, including transgender information. Accordingly, records related to this condition would certainly be relevant and important to Plaintiff's history on this issue. Further, Plaintiff has received treatment and the evidence may show future treatment is appropriate for mental health as relates to Plaintiff's chronic conditions. Plaintiff's principal claim for damages in this case relate to claims of mental anguish, distress, or otherwise emotional 3

4 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 4 of 13 PageID 3431 injuries. As such, other chronic health conditions for which mental health services are appropriate or may affect Plaintiff's damages claims are certainly relevant and should be admissible, as well as life expectancy in Plaintiff's request for future damages. Accordingly, Plaintiff's request to exclude this entire category of evidence should be denied. Paragraph 12 of Plaintiff's Motion requests exclusion of "any statements that would be degrading or humiliating to the Plaintiff or counsel," including implying they are only bring the lawsuit for money." Plaintiff further asks any statement that "seeks to confuse the jury, or other similar statements...." These requested topics are similarly overly broad, and it is unclear what all would qualify under this category. Orange County certainly would not "seek to confuse the jury," or plan to engage in any other inappropriate or improper statements. However, without any context or specificity of what Plaintiff believes may be introduced, Plaintiff's Motion is unsupported and should be denied. In Paragraph 13 of Plaintiff's Motion Plaintiff requests the Court enter an order prohibiting any reference "alluding that a verdict for the Plaintiff could invite other lawsuits, crowd courtrooms, increase insurance premiums or taxes." Plaintiff does not outline any basis for requesting an order on this topic and Plaintiff's description of any reference "alluding" to this issue being improper is broad and unclear. As such, Plaintiff's Motion should be denied as to this item. See, e.g., Graddy v. City of Tampa, 2014 WL (M.D. Fla. 2014) (denying motion in limine for vague challenges to evidence with little factual or legal basis). In Paragraph 15 of Plaintiff's Motion Plaintiff requests Orange County be "precluded from any attack on the Plaintiff's character." Orange County agrees both parties should not be entitled to introduce any improper character evidence and are bound to follow the Federal Rules of Evidence. Plaintiff's request that Plaintiff's character not be "attacked", however, is non-specific, 4

5 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 5 of 13 PageID 3432 vague, and broad. Character evidence may be admissible pursuant to Federal Rules of Evidence Rule 405, 404, 607, 608, and 609. Thus, Plaintiff's Motion as to this item should be denied. Similarly, Paragraph 17 of Plaintiff's Motion simply states "counsel shall not make any statement that attempts to curry favor with the jury." This statement, requested as the basis for an order by the Court, is quite subjective and vague, and for that basis should be denied. See, e.g., Graddy v. City of Tampa, 2014 WL (M.D. Fla. 2014) (denying motion in limine for vague challenges to evidence with little factual or legal basis). Accordingly, Plaintiff's Motion should be denied, as it is speculative as to whether and in what context any of these matters may arise at trial. B. Plaintiff's Criminal and Incarceration History Should not be Excluded. In Paragraphs 1 and 2 of Plaintiff's Motion, and Section A of Plaintiff's Memorandum of Law, Plaintiff requests a broad order ostensibly excluding any and all evidence or testimony relating to Plaintiff's criminal history and incarcerations (other than the incarceration during which the incident occurred). Plaintiff does not provide sufficient support or basis for excluding all such evidence, and it would be premature to grant Plaintiff's Motion as requested. 1. Some of Plaintiff's Criminal Convictions are Admissibility under the Federal Rules of Evidence. Pursuant to Federal Rule of Evidence 609, evidence of a witness' criminal conviction is admissible for attacking a witness's character as follows: where the crime, in the convicting jurisdiction was punishable by death or imprisonment for more than one year, the evidence must be admitted, subject to Rule 403 in a civil case..." Rule 609. IF more than ten years has passed since a witness' conviction or release from related confinement (whichever is later), however, evidence of such a conviction is only admissible if: 5

6 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 6 of 13 PageID ) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and 2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. Rule 609 (b). Thus, felony convictions where less than ten years have passed from the conviction or release are admissible in civil cases for impeachment of a witness. Older felony convictions may only be admissible under the parameters set forth in subsection (b) of Rule 609. Although Plaintiff was not given copies of criminal judgments of conviction, Plaintiff had notice of Defendant's knowledge of each of Plaintiff's convictions and has an opportunity to contest the use of same and it is still well in advance of trial. Thus, convictions falling within 609(a) should be admissible and not excluded, and Plaintiff's Motion as to Paragraphs 1 and 2 (Section A) should be denied. 2. Plaintiff does not Present Grounds for Excluding Entire Incarceration History In Paragraphs 1 and 2 Plaintiff likewise requests that any evidence of or reference to Plaintiff's periods of incarceration both before and after the period of incarceration during which the incident occurred be excluded. Although Fed. R. Evid. 404(b) prohibits the use of a crime or act in order to show that on a particular occasion the witness acted in accordance with that character, such evidence may be admissible for another purpose. This case involves a claim relating to an alleged sexual battery in Orange County's facility while Plaintiff was incarcerated. During discovery and depositions Plaintiff has focused a great deal on Plaintiff's alleged "vulnerability," as well as corrections employees perceptions of any vulnerability. Additionally, Plaintiff alleges Orange County was unreasonable and in fact deliberately indifferent to how the Plaintiff was housed and treated. The Plaintiff in this matter has an extensive history of incarceration in multiple facilities. Plaintiff's housing, behavior, and other activity will likely be relevant to issues the Plaintiff presents at trial and Plaintiff's testimony. 6

7 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 7 of 13 PageID 3434 Further, the Plaintiff's history of incarceration may be relevant to Orange County's employees knowledge of and interactions with the Plaintiff, which is at issue in this action. As such, Plaintiff's request for a blanket ruling excluding all evidence and testimony about any of Plaintiff's prior periods of incarceration should be denied. C. Past Alcohol or Drug Use [P]rior drug use can be relevant in a case in which damages are sought for future mental anguish and loss of earnings. Brewster v. S. Home Rentals, LLC, 2012 WL (M.D. Ala. 2012). Evidence of a plaintiff's past history of alcohol problems may be relevant to issues in damages claims, such as on the issue of future loss of earnings. See, e.g., Martinez v. Rycars Const., LLC, 2010 WL (S.D. Ga. 2010). Alcohol use is also was relevant to a plaintiff s ability to adjust emotionally to his infirmity and become more fully rehabilitated. Id. Because the nature of this claim is almost entirely mental suffering, evidence of Plaintiff s prior drug use may be relevant, and evidence that it was reported to Defendant's employee admissible. As such, Plaintiff's request in Paragraph 3 and Section B of his Motion should be denied. D. Hiring of an Attorney or Reference to Litigation In Paragraph 4 Plaintiff requested to exclude any reference to the time period or circumstances under which the Plaintiff hired an attorney. Orange County agrees any evidence or testimony on this topic, as well as attorney-client privileged communications, should be excluded. However, in Plaintiff's argument in Section C of the Motion, Plaintiff also makes reference to "conversations regarding her lawsuit." To the extent Plaintiff made statements about suing Orange County or how much money Plaintiff may recover to any third party who is not an attorney, or that are not otherwise privileged, such statements may be admissible. 7

8 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 8 of 13 PageID 3435 Plaintiff cites authority (from Florida courts) relating to evidence of other lawsuits. Orange County is not seeking to introduce evidence of other lawsuits and thus the cited authority is inapplicable. Orange County does not object to the request that evidence relating to Plaintiff's hiring of an attorney, when it was, and any communications with Plaintiff's attorney, be excluded. However, Orange County requests any order on this requested item be limited and not include the additional broader category of "any conversations" Plaintiff may have had regarding a lawsuit, as such statements are otherwise admissible under Rule 801(2)(a). E. Plaintiff Seeks to Exclude Opinions and Evidence that is Admissible in this Matter, Under by Characterizing it as Passing on Credibility. In Paragraph 14 of Plaintiff's Motion Plaintiff has described the requested category sought to be excluded as "opinion testimony by any witness regarding whether or not the Plaintiff was malingering or commenting on the credibility of Plaintiff." In Section L, however, Plaintiff requests to limit or exclude opinions of Orange County's expert, Harry Krop, Ph.D., and various other prospective witnesses' testimony regarding their perception and opinions, some of which was elicited by Plaintiff in their depositions. Plaintiff does not provide support for excluding the testimony or comments requested. First, Dr. Krop is Orange County's retained clinical psychologist, who examined the Plaintiff and provided opinions relating to Plaintiff's alleged emotional and mental damages. He is clearly qualified to testify regarding Plaintiff's emotional damages and such testimony falls within his area of expertise. Plaintiff has not filed a Daubert motion challenging his area of expertise or qualifications. As for fact witnesses, Orange County employees' perceptions may be relevant to their actions, which Plaintiff is criticizing and alleging were unreasonable. Although Plaintiff tries to 8

9 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 9 of 13 PageID 3436 make the analogy that any opinions by witnesses would be the equivalent of asserting an opinion as to a defendant's guilt or innocence in a criminal trial, this case involves a civil claim, and thus Plaintiff's cited authority (in state court) is inapplicable. As such, Plaintiff s Motion as to this item should be denied. F. Evidence or Testimony Related to Plaintiff s History is Admissible. Under Section M of Plaintiff s Motion Plaintiff asks that generally character evidence be precluded from introduction at trial. However, Plaintiff also includes Rule 412, Federal Rules of Evidence, requesting that any evidence of sexual assaults or other sexual behavior of Plaintiff be excluded. With exceptions, Rule 412, prohibits: evidence offered to prove that a victim engaged in other sexual behavior; or 2) evidence offered to prove a victim s sexual predisposition. In the present matter Orange County s expert clinical psychologist testified and provided opinions regarding Plaintiff s psychological condition and alleged damages, and testified regarding the significance of Plaintiff s prior history of sexual assault and other traumatic incidents. This type of history is directly relevant in an action such as the present matter, seeking primarily psychological or emotional injuries from a sexual assault incident. Courts have held a party s history of sexual assault may be relevant and admissible, even in criminal cases. See, e.g. U.S. v. Stops, 997 F.2d 451, (1993)(holding trial court erred in excluding evidence of other alleged instances of sexual assault on the victim for purposes of criminal defendant providing explanation of minor victim s behavior and symptoms). Courts have found in criminal cases that evidence of a victim s previous consensual relations with a criminal defendant may also be admissible. See, e.g., U.S. v. Saunders, 736 F. Supp. 698 (1990)(evidence that defendant and the victim had previously had consensual relations was admissible in defendant's trial for rape of the victim, even though the last occurrence was three years prior to the 9

10 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 10 of 13 PageID 3437 incident in question); see also U.S. v. Brown, 17 M.J. 544 (ACMR 1983) (judge erred by precluding defense from introducing evidence of prior consensual sexual intercourse between accused and the victim. Courts have also held in other circumstances a party s sexual conduct or specific behavior may be admissible in civil cases where relevant to one of the issues in the case. See, e.g. Blackmon v. Buckner, 932 F. Supp (S.D. Ind. 1996) (Evidence that prisoner sexually teased and taunted other inmates in jail was admissible in action brought against jail officials by prisoner who alleged that he was sexually assaulted in county jail by other inmates and that officials violated his constitutional rights by acting with deliberate indifference to the threat the other inmates posed to him). In the present matter, as mentioned above, Plaintiff s primary claim for damages related to emotional and mental distress and psychological damages. Plaintiff s prior sexual assaults and Plaintiff s testimony regarding this history, are directly relevant to Plaintiff s damages, as was testified to by Orange County s expert, Dr. Krop, in his deposition. Further, records relating to Plaintiff s incarceration include instances of behavior and events that may be construed under the broad category of sexual behavior, but are relevant to the Plaintiff s alleged vulnerability while in custody, a focus of Plaintiff s allegations, and Orange County s employees perception and experience with the Plaintiff. As such, any evidentiary issues dealing with the prior sexual assaults and prior incidents of behavior of a sexual nature should be considered in the context of the testimony presented and based on the claims and evidence as Plaintiff presents them. Therefore, Plaintiff s Motion on this issue should be denied. G. The Defense of Comparative Negligence is not Proper on a Motion in Limine. 10

11 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 11 of 13 PageID 3438 In response to Plaintiff s negligence claim Orange County has asserted as one of its defenses that Plaintiff was comparatively negligent, and any such negligence should be decided by the jury. This is a defense, for which a defendant has the burden of proving at trial. Thus it is not an evidentiary matter to be determined by motion in limine. H. Elements of the Plaintiff s Claim Should not be Determined by Motion in Limine, but Proven by Plaintiff at Trial. In Section Q of Plaintiff s Motion, Plaintiff asks that Orange County be precluded from presenting any evidence or argument that Plaintiff was not raped. Plaintiff brings the instant claim alleging injuries and damages as a result of a sexual assault, and that Orange County is liable for the alleged assault. Therefore, it is Plaintiff s burden of proving his claim in its entirety, and Plaintiff s request for an order in limine on an element within his burden of proof, before any evidence or testimony has been introduced at trial, is improper. I. Plaintiff s Request to be referred to as a Female Throughout Trial Would Result in Undue Prejudice to Orange County and is Unsupported. The Plaintiff has requested to be referred to throughout trial as a female, based on being transgender (defining as one whose identity is different from biological sex as born). In support of this request Plaintiff cites several publications outside of the record explaining gender dysphoria and no legal authority. An issue central to this case is Plaintiff s placement and classification within Orange County s correctional facility, as well as Plaintiff s alleged or perceived vulnerability, and whether Orange County acted reasonably. Because Plaintiff was still biologically male and housed as a male, the Court requiring everyone who testifies or speaks at trial to refer to Plaintiff as a female, such a ruling would have the effect of implying to the jury that Plaintiff is in fact a female. This will either lead to confusion or prejudice, and possibly imply to the jury that Plaintiff should have 11

12 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 12 of 13 PageID 3439 been housed as a woman, deciding matters for the jury or at the very least confusing them. This would unduly prejudice Orange County. As such, Plaintiff s request on this issue should be denied. See Howard v. Georgia Dept. of Corrections, 2010 WL , *1 (M.D. Ga. 2010) J. Plaintiff s Request that All Evidence Relating to Fault of Josh Bailey Should be Denied. In Section S Plaintiff requests that any and all evidence or argument regarding fault of the alleged assailant be excluded. Although the assailant and intentional tortfeasor cannot be listed as a non-party to whom the jury apportions fault, such evidence or testimony may be relevant to causation, and aspects of the Plaintiff s claim. For example, whether Orange County had reason to believe or suspect the Plaintiff may be in danger if placed in a cell with Josh Bailey will likely be an issue presented at trial. Josh Bailey s actions and the foreseeability of them is directly relevant to that issue. Plaintiff presents authority only for the argument that Josh Bailey should not be identified on the verdict form as a non-party to whom the jury may apportion fault. This is thus not an evidentiary matter appropriate for a ruling in limine at this time, and Plaintiff s Motion should be denied. K. Disciplinary Reports and Other Records are Admissible, or Portions Thereof, and thus Should not be precluded in Limine. The categories of documents Plaintiff lists in Section T of his Motion present matters that should be decided at the time of trial, in light of the evidence and testimony presented. Many fall within Rule 803 or are business or public records. For example, disciplinary reports from Orange County or the Department of corections are admissible as public records or business records. O'Bryant v. Langford, 2007 WL (N.D. 12

13 Case 6:13-cv GAP-DAB Document 91 Filed 08/09/14 Page 13 of 13 PageID 3440 Fla. 2007) report and recommendation adopted, 2007 WL (N.D. Fla. 2007); See also Fitzpatrick v. City of Montgomery, 2008 WL (M.D. Ala. 2008). Medical records referencing Plaintiff s chronic or other conditions are relevant to issues of Plaintiff s emotional distress claims, or other claims at issue as discussed above on the issue of other medical conditions. These evidentiary issues should be determined at the time of trial, as testimony and evidence is presented, and there is not support for all categories of such documents to be excluded. WHEREFORE, for the reasons set forth herein, Defendant, ORANGE COUNTY, requests that Plaintiff s Motion be denied. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 8th day of August, 2014, I electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system, which will send notices of electronic filing to the parties and counsel of record. /S/_MICHELLE EVANS CONCEPCION DENNIS R. O'CONNOR, ESQUIRE Florida Bar Number: DOConnor@oconlaw.com MICHELLE CONCEPCION, ESQUIRE Florida Bar Number: mconcepcion@oconlaw.com O'CONNOR & O'CONNOR, LLC 840 S. Denning Drive, Suite 200 Winter Park, FL (407) (407) Facsimile Attorneys for Defendant Orange County, Florida 13