United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
Clifford Shirley, Jr. United States Magistrate Judge.
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];
(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].
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].
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]. 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
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].
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
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].
POSITIONS OF THE PARTIES
Motions in Limine
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.
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.
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.
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. 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.
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
Extension of Time to File Daubert Motions
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
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.
Requests for Admission
Defendants aver that on March 31, 2016, Defendant Knox County
sent the Plaintiffs Requests for Admission. 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 ...