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Jelsma v. Knox County

United States District Court, E.D. Tennessee

June 14, 2017

PATTY JELSMA, et al., Plaintiffs,
v.
KNOX COUNTY, TENNESSEE, et al., Defendants.

          MEMORANDUM AND ORDER

          C. Clifford Shirley, Jr. United States Magistrate Judge.

         This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, Standing Order 13-02, and the referral Order [Doc. 60] of the Chief District Judge. Now before the Court are the following Motions:

(1) Motion in Limine of Defendant Bradley Cox or in the Alternative Motion to Dismiss Pursuant to Fed.R.Civ.P. 37(c)(1)(C) [Doc. 54];
(2) Defendant Knox County, Tennessee's Motion in Limine and/or Motion to Dismiss Pursuant to Rule 37(c)(1) [Doc. 57]; and
(3) Joint Motion for Extension of Time to File Daubert Motions to the Extent Necessary Pending the Court's Ruling on Motions in Limine or in the Alternative Motions to Dismiss Filed by Defendants Knox County and Bradley Cox [Doc. 64].

         The Motions are now ripe and ready for adjudication. Accordingly, for the reasons more fully explained below, the Court GRANTS IN PART AND DENIES IN PART the Defendants' Motions in Limine [Docs. 54 and 57] and DENIES AS MOOT the Defendants' Joint Motion for an Extension [Doc. 64].

         I. BACKGROUND

         The Complaint [Doc. 1] in this case was filed on July 27, 2014. The Complaint alleges that on July 28, 2013, Plaintiff Patty Jelsma was visiting her mother's home when Defendant Officer Bradley Cox arrived at the residence in response to a call for service. [Id. at ¶¶ 5-6]. The Complaint states that Officer Cox began to interview Plaintiff Patty Jelsma and that she proceeded to record the interview on her mobile phone. [Id.]. The Complaint continues that without provocation, Defendant Cox grabbed Plaintiff Patty Jelsma, slammed her to the ground, and handcuffed her “in an excessive and forcible manner, ” causing permanent physical and emotional injuries. [Id. at ¶ 8]. The Complaint continues that Defendant Cox arrested Plaintiff Patty Jelsma without probable cause and charged her with domestic violence, assault, disorderly conduct, and resisting arrest. [Id. at ¶ 9]. The Complaint states that these charges were later dismissed. [Id. at ¶ 12]. The Complaint alleges that Defendant Cox violated 42 U.S.C. § 1983 for excessive use of force and false arrest in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. [Id. at ¶¶ 14, 19]. In addition, the Complaint alleges Defendant Cox engaged in reckless infliction of emotional distress and assault and battery. [Id. at ¶¶ 23, 26]. The Complaint also alleges that Defendant Knox County is liable under 42 U.S.C. § 1983. [Id. at ¶¶ 49-52].[1] Finally, the Complaint alleges that Plaintiff Shane Jelsma “has lost good [and] valuable services of his wife Patty Jelsma as a result of the actions and/or inactions” of the Defendants. [Id. at ¶ 59].

         On July 6, 2016, the Chief District Judge [Doc. 41] dismissed Plaintiff Patty Jelsma's claim against Defendant Cox for false arrest, finding that he was entitled to qualified immunity. [Doc. 41 at 11]. The Court, however, declined to find that Officer Cox was entitled to qualified immunity for using excessive force. [Id. at 18]. In addition, the Court found that Defendant Knox County was not subject to municipal immunity from Plaintiffs' wrongful reinstatement claim under 42 U.S.C. § 1983. [Id. at 20]. Finally, the Court also declined to dismiss the Plaintiff Shane Jelsma's loss of consortium claim. [Id. at 22].

         On July 6, 2016, the Plaintiffs filed their Witness List. [Doc. 42]. Relevant to the instant matter, the Plaintiffs named Dr. Don Brady as a witness. Later, on July 28, 2016, Defendant Cox appealed the Chief District Judge's Order to the Sixth Circuit. In addition, on July 28, the Defendants filed a Motion in Limine [Doc. 46] and a Motion to Strike [Doc. 47]. The Motions requested that the Plaintiffs be excluded from using Dr. Don Brady as a witness because the Plaintiffs failed to disclose his existence or testimony pursuant to the expert disclosure requirements. The Defendants also moved to strike the Plaintiffs' Witness List because the Plaintiffs failed to disclose witnesses in failing to respond to Interrogatories and the Witness List merely disclosed the witnesses' names without any other information, such as addresses, telephone numbers, and whether they were expected to be called as a witness or called if the need arises. The Defendants also argued that with respect to Kathy Stalnaker, the Plaintiffs failed to identify specific portions of the deposition testimony that the Plaintiffs propose to introduce.

         On August 1, 2016, the Chief District Judge stayed the case [Doc. 48] pending resolution of Defendant Cox's appeal to the Sixth Circuit. The Chief District Judge also denied the pending Motions [Docs. 46 and 47] with leave to refile upon the stay being lifted. Subsequently, on January 20, 2017, the Sixth Circuit affirmed the Chief District Judge's decision [Doc. 52], and the mandate issued on February 15, 2017 [Doc. 52]. Later, on February 23, 2017, the Chief District Judge lifted the stay and set the case for trial on July 24, 2017. [Doc. 59].

         II. POSITIONS OF THE PARTIES

         A. Motions in Limine

         Defendant Cox's Motion [Doc. 54] requests an order prohibiting the Plaintiffs from offering testimony, evidence, or argument that is contrary to the admissions previously made by the Plaintiffs regarding the extent of the Plaintiffs' alleged physical or emotional injuries or any other matter requiring expert testimony or that the force used against Plaintiff Patty Jelsma during the arrest was used without provocation. In the alternative, Defendant Cox moves to dismiss this action pursuant to Federal Rule of Civil Procedure 37(c)(1)(C). For grounds, Defendant Cox states that on March 4, 2016, Defendant Knox County served the Plaintiffs with written discovery consisting of fifty-three (53) requests for admissions, along with interrogatories and requests for production of documents, but the Plaintiffs have never responded to these discovery requests. Further, Defendant Cox argues that pursuant to the Scheduling Order in this case, the Plaintiffs were required to make expert disclosures on or before April 15, 2016, but that the Plaintiffs have not made any expert disclosures that comply with Federal Rule of Civil Procedure 26(a)(2). Finally, Defendant Cox argues that Plaintiff Jelsma offered an affidavit in response to his Motion for Summary Judgment that was inconsistent with her deposition testimony.

         Defendant Knox County has also filed a Motion in Limine [Doc. 57]. In Defendant Knox County's Motion, it adopts and incorporates Defendant Cox's Motion and its previous motions [Docs. 46 and 47] that were filed before the case was stayed. Specifically, Defendant Knox County requests that the Court not allow the following: (1) the testimony of Dr. Don Brady; (2) evidence at trial regarding Plaintiffs' serious bodily injury, permanent injury, loss of enjoyment of life, pain and suffering, and medical expenses sought; and (3) witnesses Nicholas Woods, Sherri Johnson, and Kathy Stalnaker to testify at trial. For grounds, Defendant Knox County asserts that the Witness List does not comply with the Scheduling Order, nor does it comply with Rule 26(a)(3)(A)(i) and (ii). In addition, Defendant Knox County argues that Plaintiffs never disclosed expert witnesses or medical evidence prior to the Court's deadline, nor did they submit an expert report. Finally, Defendant Knox County asserts that the Plaintiffs did not disclose any witnesses by failing to respond to Interrogatories.

         The Plaintiffs filed a Response [Doc. 61], stating that the parties, on numerous occasions, have cooperated with regard to discovery, trial settings, and deadlines. The Plaintiffs state that during the deposition of Plaintiff Patty Jelsma, the attorneys discussed written discovery and that once completed, the discovery responses would be forwarded. Further, the Plaintiffs state that during the deposition, Plaintiff Patty Jelsma testified at length regarding her injuries and her treatment by Dr. Brady. The Plaintiffs state that during the appeal, the written discovery and Dr. Brady's report were inadvertently not provided, but they have now been provided to the Defendants. The Plaintiffs state that the omission is harmless and not deliberate. The Plaintiffs argue that the Defendants knew of Dr. Brady's identity on June 17, 2016, and that Dr. Brady's deposition can be accomplished without disrupting the trial date. Further, the Plaintiffs argue that this is the first objection voiced by the Defendants.

         Defendant Knox County filed a Reply [Doc. 62] asserting that the Plaintiffs disclosed their expert testimony after the Defendants' deadlines to (1) obtain and disclose evidence to contradict or rebut Dr. Brady, (2) take Dr. Brady's deposition, (3) obtain and depose Defendants' expert witnesses, and (4) file Daubert motions.[2] Defendant Knox County states that to assert that the failure to disclose Dr. Brady as a witness is harmless is disingenuous. It argues that Dr. Brady's Expert Report is dated March 2017 and that the Defendants do not have the opportunity to hire a countervailing expert or to take Dr. Brady's deposition.

         Defendant Cox also filed a Reply [Doc. 63] arguing that the Plaintiffs' failure to comply with their mandatory disclosure obligations is not substantially justified or harmless. Defendant Cox states that Plaintiffs rely on the disclosure made during Plaintiff Patty Jelsma's deposition, but that her deposition was taken on the last day designated for discovery as set forth by prior Court Orders. Defendant Cox states that the Plaintiffs have not provided their initial disclosures. Further, Defendant Cox states that this is not his first objection to the late discovery and that this failure was brought to the Plaintiffs' attention on July 28, 2016, through his initial efforts to foreclose Plaintiffs from using expert testimony. Finally, Defendant Cox states that insomuch as Plaintiffs' service of responses to Defendant Knox County's Requests for Admission on March 9, 2017, may be construed as a motion to withdraw or amend the admissions, the motion should be denied.

         B. Extension of Time to File Daubert Motions

         The Defendants request an extension of time to file Daubert motions to the extent necessary pending the Court's ruling on the above motions. For grounds, the Defendants assert that the deadline for filing Daubert motions is on April 25, 2017. The Defendants assert that Plaintiffs untimely submitted a report on March 9, 2017, from Plaintiff Patty Jelsma's treating psychologist.

         III. ANALYSIS

         The Defendants request that the Court preclude the Plaintiffs from offering testimony, evidence or argument (1) contrary to admissions previously made by the Plaintiffs; (2) regarding the extent of the Plaintiffs' alleged physical or emotional injuries or any matter requiring presentation of expert testimony; and (3) that the use of force against Plaintiff Patty Jelsma was without provocation. In addition, the Defendants request that the Court not allow Plaintiffs' witnesses, Dr. Brady, Nicholas Woods, Sherri Johnson, and Kathy Stalnaker, to testify. Both Defendants request that in the alternative, the Court dismiss this action. The Court will address each request separately.

         A. Requests for Admission

         The Defendants aver that on March 31, 2016, Defendant Knox County sent the Plaintiffs Requests for Admission.[3] The Defendants assert that Rule 36 is self-executing to the extent that the failure to timely respond to the requests results in automatic admissions. The Defendants request that the Court enter an order deeming the matters set forth in the Requests for Admission admitted and further providing that the Plaintiffs are prohibited, pursuant to Rule 403 of the Federal Rules of Evidence, from ...


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