UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACQUES RIVERA, )

)

Plaintiff, )

) Case No. 12-CV-04428

v. )

) Judge Joan B. Gottschall

REYNALDO GUEVARA et al., )

)

Defendants. )

ORDER

In this civil rights action brought under state law and 42 U.S.C. § 1983, plaintiff Jacques 

Rivera has sued the City of Chicago (“the City”) and 12 individual former Chicago police 

officers (“officer defendants”) for, among other things, allegedly fabricating evidence and 

suppressing favorable evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and its 

progeny. See Slip Op. at 11, ECF No. 373 (May 11, 2018) (identifying defendants); Order 4 n.2, 

May 17, 2018, ECF No. 436 (clarifying status of two parties). Rivera’s claims stem from his 

incarceration for the 1988 murder of Felix Valentin (“Valentin”) and the later recantation of the 

sole known eyewitness to Valentin’s shooting, Orlando Lopez (“Lopez”). On May 11, 2018, the 

court granted partial summary judgment for the defendants and determined that a trial was 

necessary on the surviving claims (“summary judgment opinion”), ECF No. 373 (cited in this 

order as “Slip Op.”). This order assumes familiarity with the facts and analysis in the summary 

judgment opinion. See also Order, May 17, 2018, ECF No. 436 (further clarifying summary 

judgment opinion).

Before the court is defendants’ motion to bifurcate filed after the summary judgment 

opinion was entered. In this motion, defendants propose holding a two-phase trial. In the first

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phase, the jury would be asked to decide the pending constitutional and state law claims against 

the officer defendants. Then, if necessary, the parties would try Rivera’s claims under Monell v. 

Department of Social Services of City of New York, 436 U.S. 658, 691–95 (1978), against the 

City. See generally Slip Op. at 71 (discussing Monell principles). Ordinarily,1 Monell liability 

cannot be imposed on a municipality without an underlying constitutional violation. E.g., Treece 

v. Hochstetler, 213 F.3d 360, 364 (7th Cir. 2000) (citing Tesch v. Cty. of Green Lake, 157 F.3d 

465, 477 (7th Cir. 1998)).

Also, the possibility of splitting the trial into separate phases for compensatory and, if 

needed, punitive damages came up for the first time at the pretrial conference held May 15, 

2018. See Tr. 57:6–63:9, ECF No. 438. The parties conferred about this proposal and advised 

the court in a statement filed May 17, 2018, that they reached an impasse. As the court directed, 

the statement sets forth the parties’ positions and cites authority.

Standard for Ordering Separate Trials

The Federal Rules of Civil Procedure allow the court to order separate trials “where the 

efficiency of a consolidated trial is outweighed by its potential prejudice to the litigants.” 

Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008); Fed. R. Civ. P. 42(b). The court looks to 

the case’s “peculiar facts and circumstances” and weighs “considerations of convenience, 

economy, expedition, and prejudice.” Houskins, 549 F.3d at 495; see also Krocka v. City of 

Chicago, 203 F.3d 507, 516 (7th Cir. 2000) (citing Houseman v. U.S. Aviation Underwriters, 171 

F.3d 1117, 1121 (7th Cir. 1999)) (bifurcation may not impinge on Seventh Amendment rights).

 1 As defendants acknowledge, the Seventh Circuit recognized an exception to the general rule in Thomas v. Cook 

Cty. Sheriff’s Dep’t, 604 F.3d 293, 305 (7th Cir. 2010). Mot. to Bifurcate 9. Defendants assert that this case does not 

involve a Thomas-like situation. Id. Rivera disagrees vehemently in his response. See Resp. to Mot. to Bifurcate, 

ECF No. 431 at 4–7. The court implies no view on the Thomas question at this juncture because doing so is 

unnecessary to a decision on the motion to bifurcate. The court also need not delve into Rivera’s alternative Seventh 

Amendment argument because the court resolves the instant motion on prejudice and judicial economy grounds. 

See id. at 8 n.4.

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Bifurcating Individual Liability and Monell Issues

Citing the proposed pretrial order, defendants tout the number of witnesses and number 

of pages of exhibits that they say will be relevant solely to Monell issues. See Mot. to Bifurcate 

1–2, ECF No. 392. Stratospheric page and witness counts do little on their own to inform the 

court’s decision on bifurcation, however, because counting pages and witnesses can be 

misleading. Numbers alone do not give the court much information about what really matters—

how those witnesses and exhibits will affect the trial. These could be one-hour witnesses, or 

their testimony could take days. Does counsel believe that the witnesses will need to walk 

through large portions of the many pages of exhibits to authenticate or explain them? 

Defendants do not say.2 See Mot. to Bifurcate 1–2. 

Defendants tell the court that they have filed motions in limine seeking to exclude much 

of the Monell-related evidence, and raise the possibility of saving judicial resources by avoiding 

work on those motions if they win in the first phase. Id. at 3, 4–5. Judicial economy is a 

sufficient reason to order separate trials under Rule 42(b). Houseman, 171 F.3d at 1121 (citing 

MCI Commc’ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1166 (7th Cir. 1983)). The savings 

of work would be illusory unless the Monell second phase is delayed. Given that this case is 

expected to take over two weeks to try, the jury would either have to be recessed while the court 

addressed the Monell-related motions in limine, or a new jury would have to be empaneled later. 

The first option seems unworkable, and with only two weeks until trial, the court would be 

derelict in its duties if it did not begin work on the Monell-related motions in limine (which raise 

numerous challenges to expert opinions) before the end of the proposed first phase. Indeed, the 

 2 In his response, plaintiff asserts that “there is zero chance that all of the witnesses and exhibits on the final pretrial 

order will be used.” Resp. to Mot. to Bifurcate 7 n.3. The court has admonished counsel that the eve of trial has 

arrived, so it is time to move from the maximal to the realistic to obtain a realistic trial plan. The court repeats that 

admonition here. This case will not go to trial as scheduled without a plan that leaves this court with reasonable 

certainty that it is manageable for all concerned.

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court has already done so, as the minute entry entered May 17, 2018, demonstrates, see ECF No. 

434. 

Speaking of experts, the court would be remiss if it did not note that several of the 

parties’ experts express opinions relevant to Monell as well as what allegedly happened during 

the Valentin investigation through Rivera’s trial, so bifurcation will drive up the parties’ expert 

costs and further inconvenience the witnesses. The court does not know what plans the experts 

have made in advance of trial, but it seems fair to infer that those who do not live in the Chicago 

area have not made plans to come here twice. Plaintiff tells the court that this could happen for 

fact witnesses as well because he contends that they would have to testify in the first phase and 

return in the second to testify on how the City’s alleged widespread practices affected their 

actions. See Resp. to Mot. to Bifurcate 8, ECF No. 431. Without a reply, a trial plan, or the 

attorneys’ intimate knowledge of what the witnesses are expected to say, the court has no 

definitive way to test this assertion, though it seems consistent with the summary judgment 

arguments and record.

Returning to the costs and benefits of holding a bifurcated trial, if a new jury must be 

empaneled, it will need to be educated about the underlying facts with evidence the first jury 

heard. Who knows how long that will take? Defendants do not attempt to analyze the issue. 

And of course, not only will the court and the parties’ time be consumed by a second round of 

jury selection, but additional members of the public will also be summoned away from their jobs 

and lives to participate in voir dire. Defendants do not weigh the costs and benefits of these 

possibilities. See Mot. to Bifurcate 2–5.

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Defendants also argue that they will be prejudiced if the trial is not bifurcated. Id. at 5–8. 

They point to two specific possible sources of prejudice.3 First, the evidence of other alleged 

instances of failing to document lineups in which a filler is picked will, they argue, confuse the 

jury and prejudice them because Lopez has maintained that he picked Rivera, not a filler. Mot. 

to Bifurcate 7. Second, defendants maintain that introducing in the first phase hundreds of 

investigative files evaluated by Michael Brasfield risks unduly prejudicing the jury. Brasfield 

reviewed those files to form his opinion about the existence of a widespread practice discussed in 

Part IV.C of the summary judgment opinion—what Rivera calls the “street files” theory.

4

 

Defendants worry the files will overwhelm the jury and risk a finding of liability based on their

sheer volume because, to put it colloquially, where there is smoke, there must be fire. See Mot. 

to Bifurcate 7–8.

Trying Monell claims and claims against individual defendants together always presents a 

risk of prejudice because, “[b]y their very nature, Monell claims normally invite the use of 

evidence of other instances where municipality employees violated an individual’s constitutional 

rights.” Ackerman v. Allen, No. 16 C 6199, 2017 WL 1536447, at *5 (N.D. Ill. Apr. 27, 2017) 

(citing Carr v. City of N. Chi., 908 F. Supp. 2d 926, 934 (N.D. Ill. 2012)); see also Veal v. 

Kachiroubas, No. 12 C 8342, 2014 WL 321708, at *6 (N.D. Ill. Jan. 29, 2014) (“Presenting

evidence to the jury regarding a village-wide policy, practice or custom involving multiple 

improper police actions poses a danger of undue prejudice to the defendant officers by creating 

the perception that the police department routinely acts improperly, even if the officers acted 

properly in this case.”). This court has repeatedly recognized the potential prejudice of trying 

 3 Rivera discusses a third source in his response, the introduction of similar acts evidence under Federal Rule of 

Evidence 404(b). See Resp. to Mot. to Bifurcate 9–10. Defendants do not raise this issue in their motion to 

bifurcate, so the court does not address it. See generally Awalt v. Marketti, 75 F. Supp. 3d 777, 786 (N.D. Ill. 2014). 4 The use of this term is the subject of the City’s fourth motion in limine, ECF No. 383. The court intimates nothing 

about the motion’s merits in this order. 

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Monell and individual § 1983 claims together. See, e.g., Clarett v. Suroviak, No. 09 C 6918, 

2011 WL 37838, at *2 (N.D. Ill. Jan. 3, 2011); Taylor v. Kachiroubas, No. 12 C 8321, No. 12 C 

8349, 2013 WL 6050492, at *4 (N.D. Ill. Nov. 15, 2013). Nevertheless, at least where city 

officials claim to be following official policy, evidence of the existence of widespread practices 

is also relevant to the individual claims. Coleman v. City of Peoria, No. 1:15–cv–01100–SLD–

TSH, 2016 WL 5497363, at *6 (C.D. Ill. Sept. 27, 2016) (denying motion to bifurcate in part 

because Monell evidence was “relevant to the actions of the defendant officers, who would, 

assuredly, claim to have acted in conformity with sanctioned department policies and practices”).

While bifurcation always completely avoids the possibility of this kind of prejudice, the 

law presumes that juries follow limiting instructions, and they can be properly used to avoid 

prejudice and save time and expense at trial. Ackerman, 2017 WL 1536447, at *5 (citing 

McLaughlin v. State Farm Mut. Auto. Ins. Co., 30 F.3d 861, 870–71 (7th Cir. 1994)). In 

McLaughlin, for example, the Seventh Circuit affirmed a decision not to bifurcate compensatory 

and punitive damages in a breach of contract case because the evidence overlapped and the jury 

was presumed to follow limiting instructions. 30 F.3d at 871; see also United States v. Gomez, 

763 F.3d 845, 860-61 (7th Cir. 2014). With so undeveloped a record on the costs and benefits of 

bifurcation, the court concludes, on the record available on this last-minute motion, that the risk 

of undue prejudice to defendants from including the Monell claims can be adequately mitigated

through limiting instructions and rulings on motions in limine. The parties must determine the 

proper form of limiting instructions well in advance of trial, so they had better get started.

Regarding the possible prejudice flowing from the Monell lineups theory, the court 

concluded at summary judgment that a genuine fact dispute over who Lopez picked exists. See 

Slip Op. at 30–32. The evidence from which the jury could find Lopez picked a filler at the first 

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lineup requires inferences from circumstantial evidence of the subsequent conduct of the 

Valentin investigation, see id. at 32, but the propriety of drawing inferences from the 

circumstantial evidence will not, as far as the court can discern, be the subject of the expert 

opinions, if admitted, on the Monell failure to document lineups theory. And defendants identify 

no authority for the proposition that the court should weigh the evidence when conducting a 

bifurcation analysis. Mot. to Bifurcate 7; see also Bonds v. City of Chicago, No. 16-CV-5112, 

2018 WL 1316720, at *3 (N.D. Ill. Mar. 14, 2018) (resolving issue against the City on motion to

bifurcate because “[t]he City asserts the proposition as an ipse dixit in its motion”). 

Nor do defendants explain why limiting instructions could not dispel any confusion. See

Mot. to Bifurcate 7. As the parties moving for bifurcation, defendants bear the burden of 

persuasion. Trading Techs. Int'l, Inc. v. eSpeed, Inc., 431 F. Supp. 2d 834, 837 (N.D. Ill. 2006) 

(citing Real v. Bunn–O–Matic Corp., 195 F.R.D. 618, 620 (N.D. Ill. 2000)). The fact that no 

documentation of a first lineup exists was undisputed at summary judgment, so the expert 

testimony and the issue of whether the first lineup occurred appear to involve different types of 

inferences and proof. In this situation, the court does not see how a limiting instruction would be 

insufficient to cure any prejudice.

This brings the court to the second source of potential prejudice defendants identify in the 

instant motion, the investigative files Brasfield analyzed. Defendants’ argument here partially 

rests on the premise that plaintiff must prove that the withheld evidence was material in the 

Brady sense, see Mot. to Bifurcate 7–8, but the court rejected that proposition at summary 

judgment. Slip Op. at 87–88 (citing Fields v. City of Chicago, No. 10 C 1168, 2017 WL 

4553411, at *3 (N.D. Ill. Oct. 12, 2017)) (other citations omitted). Defendants generally raise 

concerns about whether all of the different files here—various Chicago Police Department files 

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kept in warehouses and filing cabinets, criminal defense attorneys’ files, and files maintained by 

the Cook County State’s Attorney’s Office—are in the same condition as they were during the 

prosecution. But those concerns apply equally to the files produced regarding Rivera’s case. 

That is, defendants’ challenges to the adequacy of the proof of suppression in Rivera’s particular 

case and their challenges to Brasfield’s analysis raise similar alleged systemic concerns, so 

Brasfield’s analysis may well be admissible on individual liability. See Coleman, 2016 WL 

5497363, at *6. With limiting instructions, the court finds the potential prejudice and confusion 

of the jury from admission of the investigative files to be manageable.

Bifurcating Compensatory and Punitive Damages

Under Illinois law, the City must indemnify the officer defendants for compensatory 

damages, but Illinois prohibits the City from indemnifying the officer defendants for punitive 

damages. 745 ILCS 10/9-102(a), 10/2-302 (West 2018) (municipal employee must be “acting 

within the scope of his employment”); Winston v. O’Brien, 773 F.3d 809, 813–15 (7th Cir. 2014) 

(holding that indemnification for compensatory damages is mandatory but indemnification for 

attorney fees is discretionary). Ordinarily, the jury should not hear evidence of an 

indemnification obligation, see Fed. R. Evid. 411, but evidence that a defendant will likely be 

indemnified becomes relevant when an individual defendant opens the door in § 1983 litigation

by testifying that, as is the defendant’s right, he has limited resources to satisfy any punitive 

damages award. See Lawson v. Trowbridge, 153 F.3d 368, 380–81 (7th Cir. 1998); Kemezy v. 

Peters, 79 F.3d 33, 37 (7th Cir. 1996); Betts v. City of Chicago, 784 F. Supp. 2d 1020, 1030 (N.D. 

Ill. 2011) (Gottschall, J.).

At the pretrial conference held May 15, 2018, the parties discussed the possibility of 

bifurcating punitive damage issues on the presumption that the officer defendants will open the 

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door by testifying about their ability, or rather their inability, to pay punitive damages at trial. 

See Tr. at 57:6–63:9, ECF No. 438. After conferring following the pretrial conference, Rivera 

opposes bifurcating punitive damages issues while defendants favor it. Defendants apparently 

assume that the door will be opened at trial, for they argue that bifurcation would best balance 

the City’s interest in avoiding prejudice from the jury knowing that a “deep pocket” is available 

for compensatory damages awarded against the officer defendants against the officer defendants’ 

right to present evidence that they have modest means to pay punitive damages. See Statement 

Regarding Bifurcation 3–4, ECF No. 437. Rivera raises his own concerns regarding bifurcation. 

See id. at 1–3. He cites a case for the proposition that bifurcation is generally disfavored. Real v. 

Bunn-O-Matic Corp., 195 F.R.D. 618, 619 (N.D. Ill. 2000). He also asserts that the trial will be 

prolonged unnecessarily and witnesses will be inconvenienced because certain evidence relevant 

to punitive damages would also be relevant to his claims against the officer defendants. See

Statement Regarding Bifurcation 2. Finally, Rivera raises concerns about potential prejudice 

should the jury learn that it will be discharged more quickly because a punitive damages phase 

would be unnecessary if a defense verdict is returned in the first phase. See id. at 2–3.

The cases cited by the parties provide limited help in resolving this issue. The City has 

referred to litigation before Judge Grady to demonstrate that bifurcation of compensatory and 

punitive damages phase is workable. See Tr. at 57:20–24, 58:24–59:5. But workable does not 

equal desirable. The parties agreed to bifurcation in that case. Minute Entry, Johnson v. 

Guevara et al., No. 05-CV-1042, EC F No. 213 (N.D. Ill. Apr. 29, 2009). Similarly, this court 

granted an unopposed motion to bifurcate punitive and compensatory damages in Betts v. City of 

Chicago, and so the court granted a motion in limine preventing presentation of indemnification 

evidence unless the door was opened in the trial’s first phase. 784 F. Supp. 2d at 1030; see also 

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Charles v. Cotter, 867 F. Supp. 648, 663 (N.D. Ill. 1994) (apparently single trial; plaintiff did not 

oppose motion in limine to bar references to the City’s indemnity obligations).

The City argues that if the jury learns of the City’s indemnification obligations, it may 

improperly increase compensatory damages because the City has deeper pockets than the 

officers. See Lawson, 153 F.3d at 379 (“In the general case courts exclude evidence of 

indemnification out of a fear that it will encourage a jury to inflate its damages award because it 

knows the government—not the individual defendants—is footing the bill.” (citation omitted)). 

The case law the City cites strikes the balance in the ordinary case where ability to pay is not at 

issue, however. Once the defendant opens the door by making inability to pay an issue, the 

prejudice rationale “dissolve[s].” Id. Indeed, the Seventh Circuit in Kemezy ordered a new trial 

because indemnification evidence should have been introduced after the defendant opened the 

door to it. 79 F.3d at 37. The whole point of this rule is that when the defendant raises inability 

to pay as a defense, the jury deserves to know that a deeper pocket is available. See id. Every 

insurer, or indemnitor like the City here, would be prejudiced in a certain sense when the door is 

opened in the sense that the insurer might have to cough up more than it would have paid if the 

jury had been left with the misimpression that the defendant could not afford the damages, but 

the cases teach that the evidence must be admitted anyway to avoid misleading the jury to 

underpunish the defendant. See Lawson, 153 F.3d at 379–80; Kemezy, 79 F.3d at 37. The City 

cites no authority to show that it deserves some special solicitude as the officers’ indemnitor 

here. See Statement Regarding Bifurcation 3–4. Unitary trials were held in Lawson and Kemezy, 

so they strike the balance in favor of disclosure in a single proceeding. The City has not shown 

that it will be unduly prejudiced by a single trial of compensatory and punitive damages. See 

Betts, 784 F. Supp. 2d at 1030–31 (explaining that if the door is opened, the City and officer 

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defendants “cannot have it both ways. . . . [T]here is no danger that compensatory damages will 

be inflated because the jury knows the defendants will be indemnified, since compensatory 

damages will be limited to actual losses.”) (citing Mohr v. Chi. Sch. Reform Bd. of Trs., 155 F.

Supp. 2d 923 (N.D. Ill. 2001)); Frost v. Teco Barge Line, Inc., No. 04-CV-752-DRH, 2007 WL 

420152, at *7 (S.D. Ill. Feb. 5, 2007) (recognizing that evidence of payments from collateral 

source would be prejudicial but holding that it would not be unduly so on the case’s facts).

Meanwhile, Rivera’s contentions that some of the evidence would overlap and require 

witnesses to be recalled if compensatory and punitive damages were bifurcated stands 

unchallenged. See Statement Regarding Bifurcation 2–3; Tr. 58:8–12. Indeed, the court has 

been told that some officer defendants live out of state, are very ill, and may have to travel for 

hours to appear by video deposition. See Tr. 48:25–49:1. What is more, assuming, as the parties 

seem to do, that the officer defendants will make their ability to pay an issue, a two-phase trial 

risks prejudicing plaintiff and the officer defendants by leaving the jury with an incomplete and 

unrealistic picture of the effects of its damages decisions. The Seventh Circuit has taken a 

realistic view of these issues, upholding an award of punitive damages without compensatory 

damages and surmising that “the jurors [may have] preferred to award a single sum under the 

punitive category rather than apportion between compensatory and punitive damages.” Timm v. 

Progressive Steel Treating, Inc., 137 F.3d 1008, 1011 (7th Cir. 1998) (Easterbrook, J.). If the 

jury awards damages serially without an understanding of the indemnity rules, the officer 

defendants may find themselves saddled with a judgment they can never pay, and the jury’s 

intent may be thwarted. With that danger in mind and with the understanding that the case law 

holds that the City will not be unduly prejudiced if the door is opened, the court finds that the 

balance of potential harms to the parties here favors a single trial on damages.

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To be clear, the court will not allow indemnity evidence until the door has been opened to 

it. See Lawson, 153 F.3d at 379. The parties must therefore refrain from referring to the City’s 

indemnity obligations in their opening statements at trial.

Conclusion

For the reasons stated, defendants have not carried their burden to show that ordering 

separate trials of Monell and individual § 1983 claims is warranted. Their motion to bifurcate, 

ECF No. 392, is therefore denied. Defendants have also failed to demonstrate that the trial of

compensatory and punitive damages should be bifurcated.

Date: May 18, 2018 /s/

Joan B. Gottschall

United States District Judge

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