UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSE LOPEZ, by his wife and next best 

friend, Sandra Cardiel,

Plaintiff, Case No. 12-cv-5751

v.

STEVAN VIDLJINOVIC, et al., Judge John Robert Blakey

Defendants.

MEMORANDUM OPINION AND ORDER

This matter is set for a jury trial on February 6, 2017 [155]. On January 30, 

2017, the Court held a Final Pretrial Conference and ruled upon: (1) various issues 

implicated by parties’ Proposed Pretrial Order [161]; (2) the parties’ motions in 

limine [164] [165]; (3) Plaintiff’s Motion To Compel the Testimony of Mayor Rahm 

Emanuel [159]; (4) Defendants’ Motion To Bifurcate [162]; and (5) Plaintiff’s oral 

motion to amend his complaint. The Court summarized its oral rulings from the 

Final Pretrial Conference in a written pretrial Order [177].

Plaintiff has now filed a Motion For Clarification, Or, In The Alternative, For 

Reconsideration [176]. Plaintiff seeks multiple forms of relief in the present motion, 

which the Court addresses in order. 

I. Defendants’ Motion To Bifurcate

Plaintiff’s first issue concerns the Court’s decision to bifurcate the trial into 

separate phases for liability and damages (if necessary). As previously explained 
[177], under Federal Rule of Civil Procedure 42(b) and Seventh Circuit precedent, 

the Court resolves bifurcation requests under the traditional procedure: “First, the 

trial judge must determine whether separate trials would avoid prejudice to a party 

or promote judicial economy. Only one of these criteria—avoidance of prejudice or 

judicial economy—need be met before a court can order separation. Next, the court 

must be satisfied that the decision to bifurcate does not unfairly prejudice the nonmoving party. Finally, separate trials must not be granted if doing so would violate 

the Seventh Amendment.” Fetzer v. Wal-Mart Stores, Inc., No. 13-cv-9312, 2016 WL 

6833912, at *3 (N.D. Ill. Nov. 21, 2016) (internal quotation omitted). 

Bifurcation here serves to avoid unfair prejudice to Defendants. In this case, 

as in Fetzer, Defendants note that the jury “may improperly consider purely 

damages evidence when assessing the issue of liability.” Id. And, as in Fetzer, this 

concern is well-founded given the serious nature of Plaintiff’s injuries. Id. There is 

also no Seventh Amendment problem here, as the Court will empanel the same jury 

for both phases, if necessary. 

Plaintiff nevertheless seeks reconsideration of this Court’s bifurcation ruling, 

because he believes that he will be prejudiced if the jury, when analyzing “the 

nature and quality of the intrusion by the officers,” is precluded from considering 

“the severity of the brain injury inflicted on Jose Lopez.” [176] at 5. Plaintiff is 

incorrect. 

Whether Defendants are liable for utilizing excessive force depends upon the 

objective reasonableness of the force used, in light of the pertinent context and 

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reasonably foreseeable harms. As such, the issue of liability turns upon the 

reasonableness of the force employed by the Defendants, rather than any 

unforeseeable results that flowed from that force. See Sherrod v. Berry, 856 F.2d 

802, 804-05 (7th Cir. 1988) (“When a jury measures the objective reasonableness of 

an officer’s action, it must stand in his shoes and judge the reasonableness of his 

actions based upon the information he possessed and the judgment he exercised in 

responding to that situation.”) (emphasis in original). 

Here, the question of force concerns the use of the Taser: Defendant 

Vidljinovic used his Taser on Plaintiff once. [177] (noting the parties’ stipulation 

that “Officer Vidljinovic tasered Jose Lopez”). The first phase of trial will 

determine, inter alia, whether that decision was objectively reasonable. 

Consequently, the general risks presented by Tasers remain relevant to the 

question of whether it was objectively reasonable for Defendant Vidljinovic to utilize 

his Taser in this instance. Similarly, the fact that Plaintiff actually did fall to the 

ground and hit a hard surface remains relevant to the question of whether 

Defendants’ behavior was objectively reasonable. 

In this case, however, the extent of Plaintiff’s injuries, and his long-term 

suffering resulting from his fall, are not part of the reasonably foreseeable analysis;

and thus Plaintiff must reserve such evidence for the damages phase of trial. See 

Mineo v. City of N.Y., No. 09-cv-2261, 2013 WL 1334322, at *2 (E.D.N.Y. Mar. 29, 

2013) (The “evidence relevant to the damages issue could have a prejudicial impact 

upon the jury’s liability determination . . . [h]eaping on additional evidence related 

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to damages will only heighten the prejudice to defendant . . . and may result in a 

jury verdict that is based on considerations wholly separate and apart from issues of 

liability.”). Given the facts at issue here, the extent of Plaintiff’s physical injuries

are simply not probative to the reasonableness of the force employed, because the 

Plaintiff’s degree of force allegations concern the type of force, rather than the 

amount of force. Plaintiff does not claim that the “amount” of force used here was 

excessive (i.e., there is no allegation any Defendant hit Plaintiff on the head with an 

object or otherwise threw him to the ground). Instead, Plaintiff’s alleged theory of 

damages flows from the “type” of force, that is, the purportedly unreasonable 

decision to use the Taser, which caused him to “crash to the ground, striking his 

head violently on the sidewalk, and to cry out with horrible sounds and groans of 

pain.” Fourth Amended Complaint, ¶¶ 44, 50 [56].1 (“Defendant STEVAN 

VIDLJINOVIC tasered JOSE LOPEZ causing him to fall face first and his head to 

strike with such violent force that he sustained a skull fracture.”).

Moreover, to the degree that any evidence remains relevant to both damages 

and liability, Plaintiff may explore such evidence during the liability phase upon 

obtaining leave of Court at sidebar. As the Court previously explained:

There is no “time frame” or other temporal limitation on 

evidence and argument available to the parties during 

either phase. Instead, the governing delineation is 

between evidence or argument which goes to liability, and 

evidence or argument which goes to Plaintiff’s damages. 

To the extent either party intends to raise an argument or 

introduce evidence which is potentially relevant to both 

1 [56] also alleges Defendants “violently turned him face down on the sidewalk” while handcuffing him, but no 

evidence or expert medical testimony proffered by Plaintiff connects this allegation to his injuries. 

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inquiries, that party must first raise the issue with the 

Court at sidebar.

[177] at 13. In light of the above, the Court denies Plaintiff’s motion to reconsider 

bifurcation.

II. Plaintiff’s Motion to Amend 

Plaintiff also renews his oral motion to amend his complaint, originally made 

for the first time during the Final Pretrial Conference. Plaintiff is seeking to add 

new claims for his wife and four children under 42 U.S.C. § 1983. Federal Rule of 

Civil Procedure 15(a) provides that if a party is not entitled to amend a pleading as 

a matter of course, it may amend “with the opposing party’s written consent or the 

court’s leave” and the court normally gives leave freely “when justice so requires.” 

Fed. R. Civ. P. 15(a)(2). Under long-standing precedent, however, trial courts “in 

their sound discretion may deny a proposed amendment if the moving party has 

unduly delayed in filing the motion, if the opposing party would suffer undue 

prejudice, or if the pleading is futile.” Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 

2008) (“[T]he longer the delay, the greater the presumption against granting leave 

to amend.”) (internal quotations omitted). 

In light of the foregoing principles, this Court denies Plaintiff renewed 

request to amend. Plaintiff filed this case in 2012 [1]. Plaintiff has amended his 

complaint three times since then, with the operative complaint filed in July of 2013 

[56]. Discovery closed in July of 2015 [88], with limited depositions wrapping up 

later that year [108]. The parties fully briefed, and the Court issued written 

opinions resolving, two separate dispositive motions [157, 158]. The parties have 

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already engaged in extensive trial preparation, as evidenced by their filings in 

advance of the Final Pretrial Conference [159, 162, 164, 165]. In short, this case is 

ready for trial, yet Plaintiff waited until now to seek to add five new parties, with no 

adequate justification for this delay and at substantial prejudice to the Defendants.

Based upon the record, this Court again denies Plaintiff’s request to amend. 

III. Plaintiff’s “Empty Chair” Problem 

Finally, Plaintiff notes that in light of: (1) the Court’s previous ruling 

regarding bifurcation; (2) the Court’s previous ruling regarding Plaintiff’s “day in 

the life” video; and (3) Plaintiff’s own medical limitations that may preclude him 

from attending trial, he is facing an “empty chair” problem. If Plaintiff is incapable 

of attending trial, the Court will consider issuing a limiting instruction to the jury 

to address this concern. The parties should be prepared to discuss any potential 

limiting instructions, and any other issues they may have, at 9:30 a.m. on February 

6, 2017.

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IV. Conclusion

Plaintiff Jose Lopez’s Motion For Clarification, Or, In The Alternative, For 

Reconsideration [176] is granted in part and denied in part. The Court’s prior 

ruling that this trial shall be bifurcated into separate liability and damages phases 

stands. The Court’s prior ruling denying Plaintiff’s motion to amend stands. The 

Court, cognizant of Plaintiff’s “empty chair” concern, grants the present motion for 

clarification in part, and will consider a proper limiting instruction if needed. All 

previously set dates to stand.

Dated: February 3, 2016

Entered:

____________________________

John Robert Blakey

United States District Judge

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