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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JOSE LOPEZ, by his wife and next ) Docket No. 12 C 5751 

best friend, SANDRA CARDIEL, )

) 

 Plaintiff, ) Chicago, Illinois 

) January 30, 2017 

 v. ) 12:58 p.m. 

)

STEVAN VIDLJINOVIC, Star )

No. 4051, et al., )

 )

 Defendants. )

TRANSCRIPT OF PROCEEDINGS - Final Pretrial Conference 

BEFORE THE HONORABLE JOHN ROBERT BLAKEY 

APPEARANCES: 

For the Plaintiff: JOHN P. DeROSE and ASSOCIATES, by 

MR. JOHN P. DeROSE 

15 Spinning Wheel Road 

Suite 428 

Hinsdale, IL 60521 

LAW OFFICE of FRANCO N. CARONE, by 

MR. FRANCO N. CARONE 

236 East North Avenue 

Northlake, IL 60164 

For the Defendants: THE SOTOS LAW FIRM, PC, by 

MR. JOSEPH M. POLICK 

MS. ELIZABETH A. EKL 

MS. LAURA M. RANUM 

550 East Devon Avenue 

Suite 150 

Itasca, IL 60143 

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APPEARANCES (Continued): 

HONORABLE STEPHEN R. PATTON 

CITY OF CHICAGO CORPORATION COUNSEL, by 

MS. KELLY C. BAUER 

Assistant Corporation Counsel 

Department of Law 

Federal Civil Rights Litigation Division 

30 North LaSalle Street 

Room 900 

Chicago, IL 60602 

Court Reporter: LISA H. BREITER, CSR, RMR, CRR 

Official Court Reporter 

219 S. Dearborn Street, Room 1728 

Chicago, IL 60604 

(312) 818-6683 

lisa_breiter@ilnd.uscourts.gov 

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(In open court.)

THE CLERK: 12 C 5751, Lopez v. City of Chicago.

THE COURT: Good afternoon. Appearances, please.

MR. DeROSE: John DeRose on behalf of Mr. Lopez,

Judge. And my co-counsel, Franco Carone, will be up here

momentarily.

THE COURT: All right. And you indicated you want to

start without him, correct?

MR. DeROSE: Yes, please, your Honor.

THE COURT: Okay. 

MR. POLICK: Good afternoon, your Honor. Joseph

Polick, P-O-L-I-C-K, on behalf of the defendants.

MS. EKL: Good afternoon, your Honor. Elizabeth Ekl,

E-K-L, also on behalf of defendants.

MS. BAUER: Good afternoon, your Honor. Kelly Bauer,

B-A-U-E-R, on behalf of defendants.

MS. RANUM: Good afternoon, your Honor. Laura Ranum,

R-A-N-U-M, on behalf of the defendants.

THE COURT: Okay. Everyone can have a seat, if you

want. Just find a microphone so when you talk, my court

reporter can hear you.

My standard procedure is to go through essentially my

to-do list, and at the end, anything the parties want to raise,

we can do that as well.

Have the parties had an opportunity to look at my

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protocol for selecting a civil jury?

MR. POLICK: Yes, your Honor.

THE COURT: Is there any questions or confusion about

how I pick a jury?

MR. DeROSE: Judge, I didn't -- I don't remember

seeing in your pretrial order how you're going to actually do

the selection. Did I miss that?

THE COURT: It's on my website. 

And, Paul, can you pass out a copy.

I'll give you a copy. You take a look at it, and let

me know if you have any questions.

MR. DeROSE: And, Judge, could I raise one other

thing?

THE COURT: Sure.

MR. DeROSE: I noticed that your Honor indicated your

preference is to take a 12-person jury, and of course the

Court's preference gets preference with us.

But, Judge, I do want to mention to your Honor that

you've given me one-third more burden. I'm used to in Federal

Court here, the judges pick eight and all eight deliberate

unless someone gets excused. 

But now I will be asked -- you've got to convince 12

of them, Judge. Is that the way you're going to want --

THE COURT: I think 12 jurors is preferable. But what

my practice has been is have 12, no alternates, and if we lose

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anybody, then we take a verdict of less.

And if I can't get to 12 with two panels, I ask the

parties if they want to have the jury sit with whatever number

we get to. Usually it's around 10-ish, 11. Sometimes we get

the full 12 off the two panels. 

And in the absence of any objection, then we would

take the jury with however many we got after two panels.

Normally, though, I'm able to get 12 out of two panels.

So the times, I think the last -- I have a jury out

right now. I believe there are 10 on that one, so I was not

able to get to a full complement of 12.

I think it creates better verdicts when you have 12

sets of eyes and ears. They don't miss things. And I think

that actually inures to the benefit of both sides because you

get more accurate verdicts. So that's my preference, unless

you're asking for 10. Is that what you want?

MR. DeROSE: Judge, I'm asking for whatever your

Honor -- I'm always worried when I've got more people to

convince, but I'll live with it.

THE COURT: Okay. So I'll take that as an agreement

on 12. Do you guys have any problem with 12?

MR. POLICK: No, your Honor.

THE COURT: Okay. And, of course, we lose one -- you

know, we could lose all the way down to six and still get a

verdict, but that's not likely.

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MR. POLICK: Judge, one of the concerns I just had in

terms of questioning the jury, I know one of the proposed voir

dire questions was whether you had a positive or negative

experience with the police.

I'm just wondering, so as not to poison the whole

pool, if we get a show of hands by some jurors on that

question, whether they may be questioned or voir dired at

sidebar so as not to poison the whole group with whatever their

experience has been.

THE COURT: Do you have any objection to that,

Counsel?

MR. DeROSE: No, Judge.

THE COURT: All right. My standard practice is to let

them know during my questioning that if any answer requires a

private answer, they just let us know. If the parties want to

engage in that question with a show of hands and then do the

follow-up at sidebar, that's okay. You just need to make sure

that they know not to shoot their mouth off.

So if you just, say, do it by a show of hands and then

at the end, "Judge, at this point I'd like to ask a couple

things at sidebar," and then I'll just wave them over, and we

can do them one at a time. You're going to have to take down

their names and make whatever record you need to, and then we

can do it at sidebar. That's not a problem.

MR. POLICK: Thank you, Judge.

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THE COURT: There's a long list of individuals that

are proposed potential witnesses. After the pretrial

conference today, that list might change.

So what I want people to do, the parties to meet and

confer. And by noon on February 3rd, I want you to submit to

my proposed order inbox the revised list. 

And the list should just -- not have a style on it.

It should just be an alphabetical listing, single-spaced all

the way, because what I do is I attach that to the questions

I'm giving the jury, and I ask them to take a look at it and

let us know if they think they know anybody.

That way I'm not reading off and slaughtering the

pronunciation of 40 different names. People can actually see

it in print and think about it in advance.

With respect to defendants, though, can you give me

the pronunciation of the first two defendants?

MR. POLICK: Yes, your Honor.

THE COURT: How do you pronounce Stevan -- how does it

go?

MR. POLICK: "Vid-LIN-oh-vick." The J is silent.

THE COURT: So it's "vid-LIN" --

MR. POLICK: "Oh-vick."

THE COURT: -- "oh-vick." Okay.

And then is it "GIT-ler"?

MR. POLICK: "GET-ler," yes.

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THE COURT: "GET-ler"?

MR. POLICK: "GET-ler."

THE COURT: And "val-doh" --

MR. POLICK: "Val-doh-VEEN-nos."

THE COURT: "Val-doh-VEEN-nos."

And the rest of them are pretty -- is it "CHEAT-um"?

MR. POLICK: Yes, your Honor.

THE COURT: All right. Before you leave today, make

sure my courtroom deputy has your cell phone numbers. It's not

important now, but obviously once we get the trial going, if

there's any scheduling things, she needs to be able to get

ahold of everybody very quickly.

You need to designate in the list you give her what

we'll call the lead person. Let's say we get a jury question

at the end of the day. She's not going to call every single

lawyer. She's going to make two calls: one to the plaintiff,

one to the defense.

And you just put a little star against that. And then

that person can call the rest of the people on the team or

defendants or whoever needs to come for a jury question or

whatever. That's not part of the record or anything, but she

does need to have it. And it becomes inconvenient if we can't

get ahold of people, obviously.

Selection is one day and do not do openings on that

day. And the reason that is is because I don't know whether or

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not we're going to have the selection completed or what time

selection might be completed.

So rather than have jurors sitting around for the

potential of an opening statement and witnesses potentially

sitting around maybe being called or not, it's better to have

certainty. So what we'll do is we'll pick the jury on that

Monday, and then opening statements will be on Tuesday.

As we pick jurors during the process, I release them

for the day. So people are -- when we get complete the

questioning of an individual, they're either stricken for

cause, stricken on a peremptory or chosen and sent home, to

come back the next day. So just for your planning purposes,

you're not going to need any witnesses that first day. That's

just selection.

Our normal trial schedule is 10:00 or 10:30 start, and

by that I mean jury's in the box, and there's a witness on the

stand talking. The attorneys normally have to be here a half

hour in advance because there's always something that comes up. 

And I don't -- the one thing I really don't want to do

is have a jury waiting unnecessarily. That's one of the -- I

think it's really important for the parties and the Court to

acknowledge the jury's sacrifice in being here. And one of the

ways we do that is we try not to waste their time.

So if the parties can appear -- let's say we had a

10:30 start. The normal schedule would be 10:00 o'clock

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attorneys. That way, if there's something that comes up -- if

nothing comes up, that's great. You've got time to go over

your notes for the proceedings that day. If not, we have

enough time built in to get through the issue and still start

on time.

I normally continue to have my other cases during the

trial. So my calendar call usually starts at 9:45, and I

usually can get through it in about 15 minutes to 30 minutes or

so. So that's part of the schedule as well.

When you're on trial, you own this courtroom, though.

So the people in the calendar call will not be taking your

tables, and if they are, you can boot them. And I just ask

that you be quiet while you're getting ready while I run

through my call.

I take my criminal cases over the lunch break, too.

So just for planning purposes, that might happen as well. I

normally go five days a week unless there's something coming

up. If the parties think that they're going to run out of

witnesses on a particular day or you think you have a special

issue with a witness, that's the kind of thing you need to tell

me in advance because I will require that you go from whenever

our start is till 5:00.

I will not hold the jury past 5:00. I won't hold them

at 5:01. So if you're in the middle of a witness, we're

stopping, and that witness is going to have to come back, even

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if there's only 15 or 20 minutes left of questioning.

The reason I do that is because the jurors have

sometimes two-hour commutes. That's why I don't start them

before 10:00; that's why I don't hold them past 5:00. Two-hour

commutes each way, because they're not drawn from Cook County;

they're drawn from the entire Northern District of Illinois.

So, again, you know, people getting kids off to

school, trying to arrange for child care, trying to maintain

work issues. And some people are on long bus rides and train

rides. So for planning purposes, we don't go past 5:00.

I also want to go all the way to 5:00. So don't stop

at 3:00 o'clock and say, "Judge, I ran out of witnesses,"

because you should have had an extra witness standing by. It's

better to have a witness here and not called and waste one

person's time than 12 people because the jurors are making a

bigger sacrifice.

So do the best you can. I realize trial practice is

fluid. You're not going to be perfect. So I'm not going to

expect you to be perfect, but I do expect you to make a good

effort on that.

Paul, do you have the new case statement? I think I

got it. Here we go. Can you pass these out. Pass these

out -- not those, these. The case statement, I saw the parties

couldn't agree on a case statement. That's usually not a good

sign to start out.

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The case statement is not an opening statement. Okay?

So it's not about getting into the facts. So both proposals

were more in the line of an opening statement. A case

statement for -- in this court is essentially just explaining

what the claims are. So I've got a revised case statement,

which basically lists the defendants, names the claim and notes

the denial.

Everyone take a look at that and let me know if

there's any objection to the Court using its own case

statement.

MR. POLICK: I would say the only thing I think is

missing in terms of the claim would be the alleged illegal

seizure by the defendants as well, which is part of my

opponent's case here.

THE COURT: All right. So I would have to add a line

before "finally"? Or would I add something to the first

sentence, "utilized excessive force and illegally seized him"?

MR. POLICK: Correct.

MR. DeROSE: The first.

THE COURT: "Utilized excessive force and unlawfully

seized him." All right. So it would say, "utilized excessive

force against him and unlawfully seized him on July 22nd,

2011"; is that correct?

MR. DeROSE: Yes, Judge.

MR. POLICK: Yes, your Honor.

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THE COURT: Okay. I'll make that change. Thank you,

Counsel.

Anything else that needs to be changed on the --

MR. DeROSE: Nothing on behalf of the plaintiff, your

Honor.

THE COURT: Nothing on behalf of the plaintiff?

MR. DeROSE: No, your Honor.

THE COURT: All right. My jury -- Counsel, I hate to

do this, but I just got a verdict.

So, Gloria, could you call the attorneys on that case.

THE CLERK: I did, Judge.

THE COURT: As soon as they're here, we're going to

take a quick break. I'm going to take that verdict. But let's

get as much done as we can before we get to that.

Okay. All right. In terms of stipulations,

obviously, there are three kinds of stipulations. One is a

factual stipulation, one is a testimonial stipulation and the

other we'll call an agreement among the parties regarding some

objection or not.

Obviously, an agreement among the parties to either

waive or give up certain objections is not something that's

published to the jury. But if you have some agreement among

the parties that you want me to hold the other party to, I'm

happy to do that.

If you have a testimonial or a factual stipulation, my

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practice is the same as everybody else in the building. When

you get to that point in your case, you say, "Judge, at this

point the plaintiff" or "the defendant would like to proceed by

way of stipulation." I'll give them the standard instruction,

explain what a stipulation is. And then the party reads

verbatim the agreed language. And then I'll ask, "So

stipulated?" And then everyone will say that on the record.

The stipulation does not go back to the jury, but the

stipulation is admitted into evidence just like testimony would

be. I saw the proposed stipulations, and those were fine. If

you want me to hold or bind the parties to any of those

stipulations now in order to relieve the necessity to call a

witness or prepare a witness, I'm happy to do that.

But based on the stipulations I saw, I don't envision

that the parties need to do that. It would simply be a

question of entering into the stipulations mid trial whenever

you think those particular stipulations should be entered.

Is that your understanding?

MR. DeROSE: Yes, your Honor.

THE COURT: Is that your understanding?

MR. POLICK: Yes.

THE COURT: Okay, great. I also see that given the

objections that there's not going to be any certifications

regarding records custodians. The parties are going to hold

each other to their burden of establishing a foundation; is

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that correct?

MR. DeROSE: I'm asking the Court that things like

birth certificates and wedding certificates, I think your Honor

can take judicial notice of them. They're official documents.

I thought we can get it for police reports also that

are -- or police special orders and general orders. But the

defense has not agreed to anything yet. We might still be able

to work some of this out.

THE COURT: Well, my question in particular has to do

with a certification process to avoid a records custodian. My

understanding is that the parties are not engaging that because

there are objections, and people need to have records

custodians available; is that correct?

MR. POLICK: No, your Honor. I mean, I think the

biggest chunk of material that would fall under a record keeper

would be the hospital records, and I don't think anyone is

disputing that the hospital records are what they purport to

be.

I think we reserved our objections because while all

parties agree the records are what they are, we don't exactly

know what each side is intending to use them for. There may be

other objections such as hearsay or whatnot, but I don't think

anybody's objecting to the authenticity of the hospital

records.

THE COURT: Well, authenticity objection is not the

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same thing as a hearsay. And if someone needs to lay the

foundation to overcome a hearsay objection, they'd better have

the witness in the absence of a stipulation that I'm going to

do now.

So agreeing to authenticity is not agreeing to

admissibility. And it doesn't address hearsay within hearsay.

It doesn't address 403 concerns. It doesn't address relevance.

Obviously, that's a bad example for that one.

But if you want to engage in anything right now in

terms of an agreement among the parties to alleviate the need

to call a records custodian, now is the time to do it because

if you don't do it, you have to have the records custodian

there, and you have to lay a foundation in the absence of an

agreement. That's just the rules. 

So is there any records custodians the parties can

look at a particular exhibit, name it, put it on the record and

say that you're not making a foundation objection, that you're

agreeing to authenticity and non-hearsay or that it's a

business record, or what agreements do you want? Because

that's the whole purpose of the meet-and-confer.

MR. DeROSE: The plaintiff will agree to the

authenticity of every record that is in our pretrial order or

mentioned by the parties or the lawyers -- excuse me -- or the

doctors who treated the party without reservation, Judge.

THE COURT: All right. Well, authenticity is only one

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thing. So are you agreeing that -- well, the parties tell me.

What exhibits by number are you agreeing or not agreeing to the

equivalent testimony of a records custodian? Because you know

what the parties really -- if there's no cross to be had on a

records custodian, why are you wasting that person's time in

court all day? It's not fair to people.

So the parties have a burden to -- under Rule 1 to try

to streamline the litigation consistent with being a vigorous

advocate for their client. So is there -- are you going to

agree that certain -- certain exhibits are business records or

public records or what? I mean, what's your thought? You

don't have to, but, you know, it's up to you guys.

MR. POLICK: I would think the majority of the

hospital records would be -- the authenticity would be agreed

to. We're all working off the same hospital records, so those

from Mount Sinai --

THE COURT: Are you going to agree they're medical

records and therefore not hearsay? And are you going to seek

redactions of them if there's hearsay within hearsay?

MR. POLICK: Well, if there's hearsay within hearsay,

again, that may be problematic. I don't know how my opponent

intends to use it. But I think we're all agreeing that these

are the medical records and they are business records.

We don't need to bring in a custodian to say that

these are the records that were generated by Mr. Lopez'

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treatment at such and such a hospital.

THE COURT: Do you want to -- do you agree to that?

MR. DeROSE: Yes, Judge.

THE COURT: Put on the record right now because we're

not going to have a dispute about this in the trial. What's

the number of the exhibits you're referring to?

MR. DeROSE: Judge, every exhibit I've offered --

THE COURT: Counsel, no, I'm not going to do it with a

generic definition because then there's a dispute later about

whether or not something falls within it. I want a list of

what numbers they are because it's either in or out. It's much

simpler later when there's a misunderstanding about things. I

understand what you're saying, but the shortcut actually will

cause problems for us later.

Counsel, go ahead and take your time and read whatever

you've got in terms of the medical records. And what we'll do

is we'll have a stipulation. The parties are stipulating as to

authenticity and the fact that they are business records, but

you're not waiving any 403, relevance or hearsay within hearsay

objections. Is that agreeable?

MR. POLICK: Yes, your Honor.

THE COURT: Is that agreeable?

MR. DeROSE: Yes, your Honor.

THE COURT: All right. So now if those records get

in, then if someone's going to interpret them, that's something

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else. But the records themselves would get in.

I want the parties also to meet and confer regarding

this exhibit and do whatever redactions the parties are able to

agree to. So if there is something that's not -- that might be

prejudicial to one side and the other side doesn't care about

it and you want to redact it, that's fine. If there's hearsay

within hearsay that the other side doesn't really care about,

whatever the case may be, you can make some redactions.

In the absence of the redactions, though, the parties

need to let me know whether or not there's hearsay within

hearsay objections. Otherwise, I'll expect that document to go

into evidence very quickly.

All right. So I need to know by February 3rd at noon

exactly the list of which exhibits you're agreeing to and if

there are any redactions that need to be made or objections

that need to be preserved because my expectation is that you're

going to be waiving authenticity and hearsay objections in the

absence of you clarifying something.

Is there any other exhibit that you think the parties

can come to agreement on to avoid a records custodian?

MR. DeROSE: Judge, I believe all of the dispatch

times, I think we can agree that that -- we've been working

from that from the beginning. And the two police reports that

were drafted in the case, I would expect we can agree to that.

THE COURT: Do you agree to admission of the two

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police reports as public records or business records, Counsel?

MR. POLICK: I don't know that the police reports

themselves would go back. We're not disputing that they're

authentic records.

THE COURT: If it's in evidence, it goes back unless

there's a reason not to.

MR. POLICK: I don't think we have any issue with the

police reports.

THE COURT: All right. So you're not going to make --

you're going to waive any objection to it being admitted as an

agreed exhibit?

MR. POLICK: Depending -- I don't want to say I'll

waive any objection. I mean, it depends again how my --

THE COURT: Well, now is the time to tell me what your

objection is. Do you object to it or not? I mean, what he

argues from it is a separate thing. Whether or not it goes

into evidence is the issue right now.

Do you object to it or not? I'll make him call a

custodian if you want, but --

MR. POLICK: No, we don't need to call a custodian to

authenticate or lay the foundation for the police reports.

Absolutely not.

THE COURT: All right. Do you have any 403, hearsay,

authenticity, any type of evidentiary objection to the

admission of the exhibit?

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MR. POLICK: As I sit here now, I can't -- without it

being in the context of the trial, no, I can't. I can't think

of any other --

THE COURT: Counsel, all right. There's not an

agreement. You're going to have to bring a witness in and lay

the foundation. It's not an agreed exhibit. You either agree

or you don't. So it's okay if you don't. If you want to try

the case that way, that's fine.

MR. POLICK: As I understand your Honor's definition

of an agreed exhibit, you're waiving any and all objection to

it.

THE COURT: To it being admitted into evidence, yes.

MR. POLICK: Yes, so --

THE COURT: Otherwise, you can say, "You know what?

I'm not agreeing to it. He has to lay the foundation." And

then he can try, and then you can say objection or not when he

moves -- tries to move it in. It's up to you.

MR. POLICK: What I'm saying is that I'm not going to

force Mr. DeRose or the plaintiff to make -- to bring in a

record keeper from the police department to say this is the

police report. We're all working off the same report. So

it's --

THE COURT: Well, what -- 

MR. POLICK: -- not an exhibit -- they are not

exhibits that require a record keeper to come in and lay the

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foundation. We agree that these are the police reports.

How he uses those at trial may engender some other

type of exhibit, but we're not objecting to the foundation that

they are what they purport to be.

THE COURT: Authenticity is only part of an

evidentiary foundation. Are you making any 403, hearsay

objections to it?

MR. POLICK: Without knowing what the question is, I

can't answer that question at this time. I don't think I have

any 403 --

THE COURT: It's not agreed. So the only -- right now

the only agreed one we have is the medical records, and we'll

see what that looks like by noon on February 3rd.

Any other exhibits you think you guys can reach an

agreement on?

MR. DeROSE: Judge, there are two handwritten

statements taken from the two paramedics by the Independent

Police Review Authority investigator. I'm asking because we've

had a witness already tell us under oath how they came into

being, what they are. And we have a stipulation that they are

what they are and they were taken in the way we've all learned

they were taken.

THE COURT: Why would that be admissible?

MR. DeROSE: Pardon?

THE COURT: Why would that be admissible? Do you have

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the witness to testify?

MR. DeROSE: They'll be admissible to show that the

paramedics are impeached by some of their own verbal statements

to the IPRA investigator who wrote the report and they signed

it.

THE COURT: Well, normally what would happen is the

witness will be on the stand -- and are you talking about a

defendant or somebody else?

MR. DeROSE: They are defendants.

THE COURT: All right. So to the degree it's a

defendant, it would be admission by a party opponent. You

objecting to any of those going in?

MR. POLICK: We don't believe they're admissible into

evidence. What we believe they're properly used for is

impeachment and to refresh the witness' recollection. But

typically the statements of whoever they may be do not go into

evidence.

THE COURT: Well, that's true generally because a

prior inconsistent statement, you would first have to ask the

question. And then if you need to perfect it, it depends on

whether or not it's collateral. 

But admission by a party opponent's different. It's

not just being used for impeachment or prior inconsistent

statement. Ostensibly, admission by a party opponent, if they

lay the foundation for it, it would go right in. So what's

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your objection to the admission of those documents?

MR. POLICK: It's coming from an IPRA investigation

which we've moved in limine to keep out of this case. We don't

believe there should be any mention of the underlying

investigation that went on here.

THE COURT: What about the statement itself, though?

MR. POLICK: The statement itself, again, if he wants

to use it for impeachment or to refresh a witness'

recollection, I have no issue with that.

THE COURT: All right. He's objecting, so you're

going to have to lay the foundation for an admission by a party

opponent, et cetera, et cetera. He's not agreeing to it.

MR. POLICK: Well, Judge, I mean, again, I'm not -- I

don't want to prolong the trial. And, again, I'm not disputing

the fact -- or the defense is not disputing the fact that these

things are what they are. We have a concern --

THE COURT: Counsel, I understand that. But agreeing

to authenticity is not agreeing to admissibility.

MR. POLICK: Right. And that's why --

THE COURT: So that's different, and you're

entitled --

MR. POLICK: Right.

THE COURT: -- to hold him to his burden. I'm not

telling you -- I'm just trying to figure out if there's

anything that you guys are agreeing on. And if you're not,

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that's okay.

MR. POLICK: So with regard to those statements, there

are relevance and 403 objections to them.

THE COURT: Okay. So you're going to have those as

well. Okay. We'll address the IPRA investigation in the

motions in limine. I'll do that at the end. But at least at

this point we're just talking about exhibits.

Is there anything else you think you -- parties can

have an agreement on? Right now we're potentially some medical

records. That's it right now.

MR. POLICK: He's got some birth certificates and

death certificates or marriage certificates. Obviously, those

are public records. We don't have any objections as to their

authenticity. We have some certified convictions.

THE COURT: Do you have any objection to their

admissibility? Not their authenticity, their admissibility.

Do you have any objection to those?

MR. POLICK: Yes, I think some of them are basically

irrelevant to the issues in this case.

THE COURT: All right. So you don't have an agreement

on those. But if you want to -- do you want to waive public

record and authenticity objections to those records and it just

becomes a relevance issue?

MR. POLICK: Yes. We're not disputing that they're

public records.

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THE COURT: Okay. For the submission on February 3rd,

go ahead, list by number any of those documents, those public

record documents. And if you can agree that they're authentic

public records and non-hearsay and then reserve relevance

objections, then that's fine. Go ahead and do that.

I think circumstantial, he'll be able to tie up the

relevance. And at least then you won't have to call a keeper

of birth records or whatever it is. 

Okay. Anything else like that, Counsel?

MR. POLICK: Yes. We have a -- what's typically

called a Secretary of State driver's license abstract that

shows Mr. Lopez' driving record. That's a public document or a

state-issued document.

We also have several certified convictions from both

Illinois and Texas. I'm assuming that those are -- we're not

disputing that they are authentic. I know they have other

objections to them, but --

THE COURT: All right. If you agree to authenticity

and non-hearsay, but reserving relevance and 403 objections,

add that to the list for February 3rd. Okay? 

Anything else in terms of exhibits?

MR. DeROSE: Nothing I can think of.

THE COURT: Okay, great. That's awesome.

(Court and clerk conferring.)

THE COURT: All right. Based on that, the Court's not

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going to preadmit any of the evidence. I'm going to see what

you guys do in terms of your agreement about what objections

you're giving up. And hopefully that helps streamline things

so we don't have records custodians sitting around for nothing.

Does anyone intend on presenting any deposition

testimony in lieu of live testimony?

MR. DeROSE: Not at this point, Judge. I did catch up

with Dr. Sturgill. He called me back, but I've never had phone

contact with him yet. If he doesn't show up -- and there has

been some inability to reach him -- I might have to ask for

leave to put his videotape dep in.

I hope I don't. I want him live, and I don't expect

that that's going to be a problem.

THE COURT: I'm not going to permit it unless you give

the other side notice. So figure out what portions that you

would have to in the case that it -- that that becomes. And

meet and confer with the other side because sometimes people

need to edit out objections, et cetera, on the video. And

that's something you can't do on the fly during trial.

So have one ready to go, and if there's any objections

about the designations, you know, what part's being redacted or

what have you, let me know.

Is there any deposition that's not in video form that

someone intends to present in lieu of live testimony?

MR. DeROSE: No, Judge.

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MR. POLICK: At this point, no, Judge. I would say,

though, with regard to my opponent's witness, Dr. Sturgill, we

have -- the parties have gone through and made the respective

designations. I think we've worked that out.

I want to say there's maybe three objections that need

to be ruled on by the Court. But other than that, they're

basically foundational objections. Other than that, I don't

think there's much.

THE COURT: Okay.

MR. POLICK: But we have gone through that transcript.

THE COURT: All right. Give me the -- is that the

video?

MR. DeROSE: It's a video, but we have a transcript

also.

THE COURT: Well, what do you intend on playing, the

video or -- 

MR. DeROSE: I'll do the video, yes.

MR. POLICK: I think he needs the rulings in order to

know what to edit out of the video should your Honor sustain my

objections.

THE COURT: Do you have those designations right now?

MR. POLICK: I'm not sure if they were made part of

the pretrial order. I know we --

THE COURT: Well, just pass them up, and I'll put it

in the written order from today. That way you'll know the

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balls and strikes on that, and you can edit accordingly.

Obviously, if any witness on the stand was deposed

earlier and they say something and you want to impeach, you can

go ahead and do that in the normal fashion.

I'm just trying to figure out if there's any

designations in lieu of live testimony and any rulings I need

to do so we can streamline that process.

MR. POLICK: We may have an issue with one of our

expert witnesses just in terms of his availability to appear.

So I guess that's going to depend a lot, though, on the

scheduling of the trial and how fast we're moving. We may --

we may have an issue where we need to take his deposition, but

at this point --

THE COURT: What do you mean, take his deposition?

MR. POLICK: To preserve his testimony.

THE COURT: Well, when would you propose doing that?

The trial is pretty soon.

MR. POLICK: Yes, we could do it -- we could do it

over the weekend. I know he's available on I think that

weekend. The first week of trial, he's available that weekend,

should we need that. If it looks like things are moving

faster, quicker than we propose, then he is available to do so.

THE COURT: Well, you're going to need to talk with

the other side because ...

MR. DeROSE: We have witnesses coming in from out of

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state, Judge, that we're going to be working with on that

weekend.

THE COURT: Yeah. So you have no deposition right now

on that individual?

MR. POLICK: We have -- yes, we have the deposition

that was taken by Mr. DeRose during discovery in the case. We

do have that deposition.

THE COURT: All right. So if --

MR. POLICK: We may be able to use that.

THE COURT: Yeah, and I've seen that published very

easily, too. You have a, you know, paralegal or somebody hit

the stand. They read one part; the lawyer reads the other. We

just did that on the trial I got right now, so it happens all

the time.

A video deposition, the problem with that is

discovery's closed. So in the absence of an agreement -- he's

got to get ready for trial, too. And we'd have to edit it, and

then you'd have to have designations and I'd have to look at

them.

If the parties are able to work something out, that's

great. But if not, then you might have to use the written

deposition. Hopefully the trial will be predictable enough,

you can make sure he's live because obviously live testimony is

better for everybody.

MR. POLICK: Sure. 

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THE COURT: Just let me know on February 3rd what the

plan is whatever you guys are going to do because if there's

more designations I need to look at and help you edit, it's

better to do that so we don't have the jury waiting.

Do we have everybody on the case pending right now?

(The Court attends to other matters.)

MR. DeROSE: They're all here, Judge.

THE COURT: I beg your indulgence. I've got to take a

verdict. Do you mind just sitting tight for 10 minutes.

(The Court attends to other matters.)

THE COURT: Recalling this case, Lopez v. City of

Chicago, 12 CV 5751. Thank you, Counsel. I apologize for

that. It's just getting double-booked, that's how that goes.

Does anyone anticipate any electronic evidence other

than the video -- potential video of deposition that we

mentioned? Anything else?

MR. DeROSE: Judge, we'll need your Honor's equipment

because all the exhibits will be put on overhead projection.

So if we do have one that's in evidence, the jurors can follow

right along with the witness.

THE COURT: Okay. If you want -- obviously I have a

setup right now for trial. This is what it normally looks

like, our court's equipment. I've got the ELMO there. You

also have a plug-in for a laptop if you use a Sanction program

or some other evidentiary program.

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There's a screen over there and one over there. And

then obviously I have one, the witness has one, and the parties

have some. You have to make arrangements with the court in

advance, and I would say do it this week. Otherwise, this

stuff will not be here.

And also if you haven't used it before, I would -- you

can come in -- if you make arrangements with Gloria, you can

come in and practice with it to make sure everything -- you're

not going to have any technical issues with it.

The one thing I want the parties to be very careful of

is not to publish an exhibit unless it's in evidence. Pretty

much every trial, somebody screws that up at least once. And

the first time's okay, but the second time's not okay. So try

to make sure that you're not clicking the "publish" button

until it's actually in evidence or it's been moved into

evidence.

An exhibit binder for me with exhibits the first day

of evidence. Obviously, that's a moving target. People keep

having exhibits in and out of their battle plan for whatever

their trial is. But the first day of evidence, I'm going to

actually need my binder so I can follow along and have hard

copies of whatever the parties are going to present.

Do the parties anticipate using any exhibits in

opening statement? And by that I mean demonstratives or

otherwise including a PowerPoint.

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MR. DeROSE: I'm thinking of one, Judge, but I haven't

made up my mind, and I'll share it with counsel beforehand.

And we've already delivered you two copies -- or three sets of

binders of our exhibits. You have our exhibits.

THE COURT: If you've already given the binders and

they're up-to-date, you don't have to give me another one. But

you have to make sure that the first day of evidence that my

binder's complete and not be handing me stuff up: "Oh, by the

way, that's not in there, that's not in there, that's not in

there."

So just make sure that my binder's up-to-date. You

don't have to give me a new copy if the one that I have is

okay. And obviously just because it's in the binder doesn't

mean you have to move it into evidence. But if you do move it

into evidence, it better be in the binder so I can find it. 

If you do want to use any exhibits or PowerPoints or

any demonstratives in opening statement, you have to exchange

them the day of selection -- all right? -- so the other side

can see them so if there's any objection, I can handle it.

Normally there's not any objection. Sometimes there's

an objection to a demonstrative. But normally since what the

lawyers say is not evidence and it's just your idea of what the

case will be, most of those objections are not founded, but

I'll listen to whatever objections you might have. 

And if you think there's an issue about whether or not

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something will get into evidence -- obviously, we'll talk about

the motions in limine in a moment, and you'll have some

guidance there. But if both parties think that a particular

piece of evidence is going to get in, I'll even allow you to --

with permission. If you get permission from me in advance,

I'll allow you to use that and show it in opening statement if

that's what you want to do.

It's up to you guys. Some people don't do that; some

people do. It's up to you. But we do need to sort that out

the day of selection so that there's no surprises. And I don't

want people's opening statements interrupted unnecessarily if

we can sort those issues out in advance.

The jury instructions, the Court has the copies from

the parties. I will -- based on what you've submitted and my

review of the law and what happens in the case, I will put

together a proposed Court's instructions, a packet. And then

at the point during the trial when we're ready to do a charge

conference, we'll go through those.

I do that in a very regimented way, and the reason I

do that is to make sure there's a very good record. I used to

do appeals, and trials, obviously. But -- before I went on the

bench. But one thing that drove me nut when I -- nuts when I

was doing appeals was the inability to figure out what was

happening in the charge conference because people would say,

"Oh, No. 7." "Oh, this No. 7." "Yes, there." "No." And you

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couldn't -- there's two No. 7s, and it was a big mess.

So what I do instead of having eight different

versions, we just have -- we go off my version. I got what

your submissions are. I'll incorporate to the degree I think I

need anything that you've asked for. And then we'll just go

through mine, and I'll ask, "Court's Instruction 1. Any

objection?" You either say "object" or "no object," and we go

through all of them. 

And if there's any that object, we'll loop back to

those. But first we go all the way through them and figure out

which ones are objected to. Then we go back to the ones --

let's say you objected to No. 2. I'll say, "All right. What's

your objection to No. 2?"

And at that moment you put on the record whatever your

objection is, whatever proposed alternative language you would

have. You can't incorporate by reference something you filed

previously or anything else. The whole thing for the Appellate

Court's right there.

"This is wrong because of this case. This is what it

should say," and you quote it. You don't paraphrase it; you

quote it. And then that way, if I need -- if I grant your

objection, I'm going to pull that right off the transcript, and

it's going to help me. And I'll revise the transcript based on

whatever rulings I have -- I mean, revise the draft

instructions based on whatever we have.

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Once we go through that in its entirety, including the

verdict form, what I'll do then is ask you: "Is there any

instructions that I did not include in my packet that you would

want?" And then you get to make your record on that. It's

pretty straightforward, but it requires you to have all your

notes together on each particular thing.

I do not permit memorandums of law during trial. All

right? So if you have any trial briefs, any issues that you

want to put some law in my face -- and I will read it -- you

have to do it by 10:00 o'clock on the day of jury selection.

That way I have that whole day to read it before the

evidentiary phase which would start on the next day. That's

another reason I don't have evidence on the same day of

selection.

You can after that give me an instruction, if it's

something that you hadn't anticipated. But I'm not going to

have a 50-page motion for directed verdict. I'm not going to

have a 50-page this is the instruction that's brand new.

Both sides need to be preparing their trials and their

witnesses. If you find that there's something that came up

totally unexpected and you need to file a memorandum, you have

to seek leave first. And if there's a reason, I'll give it to

you. But then both sides have an opportunity to respond to it.

I get a chance to read it.

For example, if you think you know what the evidence

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looks like, you can actually draft a version of what you think

the directed verdict motion would look like and just file it by

10:00 o'clock that day. 

And then if you need to alter it based on the

evidence, you can orally say, "Well, Judge, you know, I'm

withdrawing, you know, the motion on Count 1, but I want to add

the following things." And you can have an oral argument on

whatever else. But you can't file memorandums of law during

trial absent leave. Okay?

Anything else the parties want to address before I do

the motions in limine? Because that's the only thing left on

my list.

MR. DeROSE: Judge, anything I'm going to say is

probably already going to be covered by your Honor. There was

one thing I was ...

THE COURT: I have the motions in limine and the

bifurcation issue. Those are the two things left on my list.

MR. DeROSE: And, Judge, you asked us earlier were we

going to need the equipment for anything else. We might need

it for, depending on how your Honor rules, for the speech of

the mayor and for some other thing -- and I can't remember what

it is right now -- that we would have to publish.

THE COURT: All right. I'm assuming that there's

potential -- it sounds like people are going to be using the

overhead at a minimum. And if you want equipment to play any

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other type of -- whether it's a day-in-the-life video, if that

gets in, or whatever else, any electronic evidence, I'm telling

you now you can't try to get that in at the last second and

expect the tech to work because it won't.

So worry about that this week, and then obviously the

parties know what the exhibits are. So anything else?

MR. POLICK: Yes. Just a point of clarification on

the directed verdict motion. So we can present it in a fashion

what we expect the evidence will show, and you just want that

legal memorandum ahead of time the day that we're --

THE COURT: Yeah, because if you do that, I can not

only read it, but I can research it and really chew up whatever

you guys got. If you give it to me mid trial, I can read it,

but it's more limited for what I can do in response to it.

Obviously, if it's based on what you expect things to

be and they're a little different, then we're still going to

have argument. I'll send the jury back; we'll talk about it at

length.

And if you still -- if you need -- something totally

unexpected came up and you need to file a legal memorandum,

then we can adjust it. But if you know what the case is going

to look like, you know what your legal argument's going to be,

then front that for me because it helps me -- it also helps me

with working through the order of proof on both sides, too,

because then I know what to look for.

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MR. POLICK: Thank you for that clarification. We are

making certain witnesses, other city employees, available for

the plaintiff here so he doesn't have to serve them with

subpoenas. Our issue is that some of these employees can only

testify on certain days.

If that become -- we also have a couple of medical

people under subpoena. Obviously, their schedules may affect

us. Is that something you want to know ahead of time who can

testify when, or is that something you want us to work out

between us?

THE COURT: If the parties agree to call somebody out

of order, I'll acquiesce to that as long as it doesn't come in

the middle of another person's testimony. So I'm not going to

stop somebody on cross to put somebody on. 

But once that person's done with cross and redirect

and that person's done, that one's off, I'm happy to, if the

parties agree, to call one of your witnesses in their case if

they agree to it. But I'm not going to force people to call

people out of turn.

MR. DeROSE: Your Honor --

THE COURT: If there's scheduling -- and this might go

both ways. If there's scheduling issues where a particular

witness can only be a certain day, then the parties need to try

to plan for that. But they also need to realize that you can't

necessarily control that.

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For example, let's say one witness goes a lot longer

than you thought or one of our jurors is late one day. I mean,

so the -- to the degree your witnesses have to show up, it's up

to you guys to make sure they're here even if it's inconvenient

and even if a doctor has to cancel appointments and be here on

a different day.

But to the degree you guys can work it out and say,

you know, "We're going to call this guy this day," as long as

you're not interrupting a witness who's currently testifying,

I'm fine with that. 

So have you talked about it with each other?

MR. POLICK: We will. 

MR. DeROSE: We are talking. 

MR. POLICK: We are talking.

MR. DeROSE: Not very well, but we're talking.

Judge, could I also mention there is a circumstance

from time to time a witness didn't finish on a particular

night, goes home and is coming back tomorrow, but we got

another witness that has to be in at 9:30. Can we interrupt

the witness that we --

THE COURT: No.

MR. DeROSE: No.

THE COURT: You can't interrupt a witness. The jury

needs to be able to make sense of the testimony. So you can

call people out of order, but you can't call somebody in the

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middle of somebody else's testimony.

MR. DeROSE: Very well. Thank you.

THE COURT: Just so you know. And that's usually not

a problem because if you order the witnesses and you have a

short witness, you can -- you can normally work it out, getting

a good idea of how long the witnesses are to make sure that you

can get a witness on and off on a particular day. It just

takes a little planning.

Anything else?

MR. POLICK: Yes. Also the parties have agreed to an

exclusion of witnesses under Federal Rule of Evidence 615. I

think the issue we have with that is that if we perceive or

either side perceives that they may have to call that witness

again that we would still like to have them excluded from the

courtroom, even though their testimony is completed for one

side.

I think that's something we'll have to see how the

evidence goes, but we generally agreed to that exclusion.

THE COURT: I would go along with that as well. Two

things. That doesn't apply to parties, obviously.

MR. POLICK: Right.

THE COURT: And the parties need to enforce that. So

if there's a violation of it, I don't know the witnesses by

face. So you need to have an eye in the back of your head to

see who's in the back. And go, "Hey, by the way, can we come

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to sidebar? There's a witness who's in the courtroom."

I'm also reasonable in enforcing that. Sometimes a

witness comes in here and they're just trying to find the

courtroom and they walk in, and the other lawyer hasn't told

them to go to the attorney/witness room. So I'm not going to

be hypertechnical. 

But on the other hand, people shouldn't be sitting

back there listening to testimony when there's a motion to

exclude. So I'll rely on the parties to enforce that. If you

think someone's going to be called multiple times, then they

should be excluded until all of their testimony's complete.

MR. DeROSE: Judge, we also agreed we will never make

a beyond the scope argument. So many of the police officers

will be put on by plaintiff, and when we are done, counsel is

free to go through whatever he wants with that witness. So

when we say we're done, we mean it.

THE COURT: Okay. That's okay, too, but it does

affect one thing. It would -- might potentially affect what

evidence is in the plaintiff's case-in-chief for the purposes

of a directed verdict.

So some defendants decide not to do that, and they

simply recall their witness because sometimes your defense can

actually as to other issues help the plaintiff make factual

showings that they need to for the directed verdict.

So I'm happy to do it, but if you are essentially

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calling your witness in their case, then that's part of the

evidence of their case for my directed verdict analysis. So

just be aware of that.

MR. POLICK: We anticipate, Judge, that he's going to

call I believe all of our defendants, the individual

defendants, as adverse witnesses in his case. Each judge here

in the building takes that procedure a different way. 

But it sounds like you're okay if we have stipulated

that once he's -- once plaintiff is through with their adverse

examination, we can go into our direct examination and

therefore eliminate the need and also jury time of calling the

witness a second time.

THE COURT: I'm totally okay with that. My only

caveat is is that that affects what evidence I look at for the

purposes of a directed verdict. So if you wait and only

call -- and call him for -- or her for your line of questioning

in your case, then that would change.

MR. POLICK: Right.

THE COURT: But that's up to you. A lot of times it

doesn't matter because, you know, the case is in, it's in. So

it's up to you guys.

MR. POLICK: I suppose if we wait till all the

evidence is in to make the directed verdict motion, then that

would -- that would ...

THE COURT: Well, normally people do it twice, once

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when he rests and then once at the close of all the evidence.

So ...

MR. POLICK: I understand what your Honor's alluding

to, yes.

THE COURT: Okay, excellent. Anything else before we

go to the motions in limine?

MR. DeROSE: No, your Honor.

THE COURT: All right. Do you want to talk about

bifurcation first? I didn't see your response to the motion to

bifurcate. I'm assuming you object, but I didn't see a written

response. What is the plaintiff's response?

MR. DeROSE: I did respond in writing. In the final

pretrial order, I said that I was opposed to it for the simple

reason that this is not -- the City is out of the case. This

is not a Monell case. 

This is all against the individual moving defendants

on the activities of the day, and I want the right, or I hope

to get the right from this Court, to put in and go at length

into not only what they did, but the damages that they -- that

they wreaked on my client.

And I believe that bifurcation, a jury would never

appreciate the severity of what all of this has led to in this

man's life.

THE COURT: All right. I did see that. What I was

referring to is I didn't see a separate response filed. I did

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see what was in the pretrial order.

Do you want to be heard on the motion to bifurcate?

MR. POLICK: Yes, your Honor. Our motion basically

takes the position that, you know, if we do not bifurcate it,

the defendants are going to be prejudiced given the extent of

the plaintiff's damages in this case.

I think our Fourth Amendment jurisprudence says that,

you know, when they are -- when the jury's evaluating an

excessive force claim, they can't do so with hindsight. And

what we believe, if the damages evidence comes in, that's

exactly what the jury will do.

They'll look at the extent of the damages here, and

they will conclude, well, the force must have been excessive

just by virtue of the nature of the damages here.

In terms of the evidence itself, no one here disputes

that Mr. Lopez was tased. The parties agree that he was tased.

It was only for one time. Our Seventh Circuit has indicated

that the use of a Taser is more than a de minimis injury. So

we all agree on that.

What becomes prejudicial is the cause, nature and

extent of the injury itself. And with that evidence coming in,

we believe that our case would be prejudiced, and the jury's

focus on liability would be overshadowed by the extent of the

damages.

THE COURT: What's the plaintiff's potential unfair

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prejudice to bifurcate, but bifurcate in front of the same

jury? For example, we do the liability phase, return a verdict

of liability, yes or no, and then if there's yes, then we go

into the evidentiary phase regarding damages in front of the

same jury. Because that way we don't have a Seventh Amendment

issue.

MR. DeROSE: Are you asking me, Judge, or --

THE COURT: I'm asking you. What is -- articulate for

me what unfair prejudice would the plaintiff have by proceeding

in that fashion with the bifurcated jury in front of the -- a

bifurcated case in front of the same jury.

MR. DeROSE: Judge, the simple facts scream out at us

that a man says, if I'm right, "I don't want any help. Leave

me alone. For my own reasons, I don't want to go to your

hospital."

Then they give him help, which we contend is

unauthorized. Indeed, part of that help they tase him, which

we all agree has been told if you're not wanted for a crime is

unconstitutional. But more importantly, Judge, for the jury to

think, oh, well, it was -- you know, they were only trying to

help him, and they must have helped him; you know, they took

him. 

If I don't get those damages in, half of my case is

left wanting and limping. What this case is all about is what

they wreaked on this man's life.

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THE COURT: And you'll be able -- you'll be able to

argue all that during the evidentiary phase. But what is the

relevance of the damages to liability?

MR. DeROSE: Relative --

THE COURT: You want to argue that you should find

them liable because the damages were really bad?

MR. DeROSE: No -- 

THE COURT: Because I wouldn't -- I would -- 

MR. DeROSE: -- they are liable because they did

everything wrong, Judge.

THE COURT: But you would get to do that in the

bifurcation. You would get to have all the evidence and

testimony you want regarding liability, and then we'd have the

court -- the jury would give us a verdict on that. 

And then if they found liability, then you'd have all

the evidence and argument you want. In fact, you'd have two

closing arguments. You'd have one on liability and one on

damages.

MR. DeROSE: Judge, if someone is -- only got a little

inconvenience, people forgive them. I want this jury to

realize how these officers cannot be simply excused because

"Oh, we were just trying to get him in an ambulance."

They ruined his life, and the jury should have a right

to say that ruining of his life is liability-strewn. It's

heavy with liability.

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THE COURT: All right. It appears that you're going

to argue damages impermissibly on the issue of liability, which

is the very issue that predicated the motion to bifurcate.

The damage that he suffered, that evidence is relevant

to the damages calculation -- it is not relevant to

liability -- because they either did something wrong or they

didn't. The damages that he suffered as a part of it is a

separate issue.

And there's a danger of sympathy in light of the

damages he suffered to render a verdict against the evidence

regarding liability. That's the very thing that counsel's --

predicated counsel's motion to bifurcate. 

And your response, when I ask you for unfair

prejudice, is saying, "I want to argue essentially the extent

of damages to make sure that they find liability." And that

wouldn't be proper -- 

MR. DeROSE: Judge, either -- 

THE COURT: -- right?

MR. DeROSE: You know, Judge, I agree, but you're

maybe missing what -- liability, these officers are trained.

They're trained you don't know how anyone's going to fall, how

people get hurt. There is legions of reports out there of

people dying from being tased.

And what we're talking about is the recklessness that

you tase a man who you believe is on PCP. You tase the man,

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and he falls and has brain injury.

That notice of the brain injury, Judge, should be

known -- that's part of the action that they cause, what caused

the action, not how much it's going to cost to take care of him

for the rest of his life. I'm not worried about that. I'm

talking about his life, what happened to his life as they take

their action recklessly without concern for his well-being.

THE COURT: If I bifurcate the issues of liability and

damages, you would be able to get into what they did or didn't

do at the scene. So I don't see where there's any unfair

prejudice.

The motion for bifurcation is going to be granted.

I'm going to permit issues of damages to be presented after the

return of a verdict on liability. So the parties should be

prepared to have their witnesses prepared regarding questioning

and cross-examination and availability to have a bifurcated

trial in front of the same jury.

So if there's a finding of liability after close, then

we'll go right into damages evidence, testimony and evidence.

There will be another set of instructions and another close,

and then we'll be able to address both those issues in front of

the same jury.

I think that's the best way to adhere to the

principles for under Seventh Circuit case law and Federal Rule

of Civil Procedure 42(b).

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MR. DeROSE: So I don't -- so I don't make a mistake

on that ruling, will you tell me where the time frame should be

cut off as far as my evidence goes? Can we talk about he's

taken to the hospital?

THE COURT: I'm not going to give you a time frame.

What I'm telling you is that the difference between liability

and damages, that's what's being bifurcated. So you have to

sort that out, and if there's an objection, we'll do it

question by question.

It's pretty straightforward what the difference is

between liability and damages. I'm not going to arbitrarily

put in a time limitation when I haven't heard the evidence.

You have a categorical limitation regarding damages versus

liability, and you guys can figure out what that is. And if

there's an objection, I'll handle that during trial.

That means for the purpose of the opening statement,

however, you would not be able to argue damages in the opening

statement. So when you talk about what you think the evidence

is going to be, your opening statement is going to be about

liability, not damages, because you're going to have a separate

opening, if you want, for the damages phase. And it will be,

again, in front of the same jury.

Okay. Let's go to motions in limine, if you could get

your notes out for that. I know some motions in limine are

agreed, but they're also in -- but rather than just talk about

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the agreed ones, I'm just going to handle them numerically. So

that -- and then if we miss any, say, "Hey, Judge. You didn't

rule on this one," and I'll find it. Hopefully I'll get

everything that way.

So if you could look, go to Plaintiff's Motion in

Limine No. 1, to bar evidence related to the plaintiff's prior

felony conviction. What's the -- do the parties want to be

heard on that?

MR. DeROSE: Judge, we ask that you bar all those

convictions. They're all more than 10 years old. My client

has been an otherwise exemplary citizen as far as the criminal

law goes and the traffic law goes for the past 10 years.

THE COURT: What's the response of defendants?

MR. POLICK: Your Honor, we would not be offering

those prior felony convictions to impeach Mr. Lopez. It

wouldn't be part of the liability case.

We see those convictions as being a rebuttal on the

damages end of the case, specifically to plaintiff's expert

economist, who based his opinion on interviews with both

Mr. Lopez' wife and girlfriend to come to his conclusions.

Obviously, they painted one picture of his life, and I

think that we are entitled to show on the issue of his earning

ability that certainly someone with prior felony convictions or

a suspended driver's license is going to have a tougher job,

especially when the economist is saying, "Well, he could have

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made X amount of money over the course of several years as a

tow truck driver."

If, you know, his license is suspended, he may not

have the job as a tow truck driver for very long. And if he

has to look for another job, I think most employers would

require him to disclose those felony convictions, and I think

it makes it harder for him to obtain employment.

So we're not using them to impeach. We were using

them to rebut the opinions of plaintiff's expert economist on

the damages phase of the case.

THE COURT: All right. I believe the parties are in

agreement that his credibility is not at issue. He's not going

to be hitting the stand. And so I'm going to grant it absent

leave of Court outside the presence of the jury.

If you think you need it in rebuttal during the

damages phase or otherwise, go ahead and let's talk about it at

sidebar before you elicit the testimony. For example, the fact

that he doesn't have a driver's license is probably going to

get into evidence in the damages phase.

But just to make sure it's really clear, the parties

have guidance, don't ask a question or make an argument

regarding any of his prior convictions unless you go sidebar

first, say, "Judge, I need it for rebuttal because of what just

happened," or "because of this." So that motion's going to be

granted absent -- absent leave of Court. 

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And that's actually true for every ruling on the

motions in limine. If you think the landscape has changed

based on what happened at trial, you're free -- and I will

entertain any motion to reconsider, but I do require that you

do it outside the presence of the jury.

Normally try to do it at a time when the jury's not

sitting. So we have that little time in the morning. Say,

"Oh, by the way, Judge, yesterday, you remember -- you recall

this testimony. I believe now our Motion in Limine No. 1 is at

issue, and I'd like to revisit that." That's how. I'm happy

to do it that way.

So if any of the motions in limine didn't go your way

today, go ahead and revisit those. Don't revisit them if the

record's the same, though, because my ruling will be the same.

But it's up to you guys to revisit those as we go forward.

Plaintiff Motion in Limine No. 2, evidence related to

PCP in his system. Do you want to be heard on that?

MR. DeROSE: Yes, Judge. As we know under the Graham

case from the Supreme Court, the officers are taken to know

what they know at the time. They had no idea that there was

PCP in his system.

That does not become disclosed until he's brought to

Mount Sinai Hospital and the doctors so indicate. So they

should not have the benefit of that hindsight. Very explosive,

prejudicial testimony before this jury.

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THE COURT: And what about the cocaine? Does your

motion also encompass cocaine as well?

MR. DeROSE: Yes, Judge.

THE COURT: Because he tested positive for both,

right?

MR. DeROSE: Yes. Please, Judge, I'd answer for both.

I didn't notice cocaine. My co-counsel told me that coming in

today.

THE COURT: Okay. What's the defendants' response?

MR. POLICK: Judge, we have two responses. First,

with regard to mentioning it in general, both P -- or the PCP,

I think all the officers and even the paramedics, the defendant

paramedics testified that these were their observations of

Mr. Lopez when they arrived on the scene.

With respect to plaintiff's illegal seizure claim,

that is the basis for the probable cause to take Mr. Lopez into

protective custody. So we believe that that testimony would be

relevant to the determination of that claim.

With regard to the Mount Sinai records where the -- we

have the results of the toxicology showing both PCP and

cocaine, I believe the plaintiff is referring to the rule in

Sherrod v. Berry where the officers can only be judged on what

they knew at the time.

However, even Sherrod itself made clear that that's

not an absolute rule and that evidence of that can be used for

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other purposes. And that's what we intend to use it here. We

intend -- we have two diametrically opposed versions of events.

We have the version that is offered by the plaintiff's

witness, Ms. Guzman, who's saying Mr. Lopez is not under the

influence of any drugs and is able to talk clearly and

coherently and tell the defendants he doesn't want their

medical need.

On the other hand, the defendants' version of events

is that he is under the influence of PCP and that he is in no

position to make those determinations because he's not in his

right mind. So the case we are relying upon is Common v. City

of Chicago where the Seventh Circuit has said that that type of

evidence can be used when you have two diametrically opposed

versions of events to show that the -- that one version of

events is more likely than not.

And here, we believe that the test results showing the

positive for PCP and cocaine corroborates the officers and the

paramedics' version of events. And the Common case shows that

as an exception to the general rule that -- announced in

Sherrod v. Berry that the officers can only be judged on what

they know.

It would show that their -- what they said happened is

more likely than not, and it's corroborative evidence of that

fact.

THE COURT: Anything further?

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MR. DeROSE: Yes, Judge. Actually what the evidence

shows is that Ms. Guzman called the hospital because the man

was having trouble breathing and chest pains. The paramedics,

the firefighters and the police should know that you don't use

a Taser on someone who has a heart problem, who is on drugs.

All the case law says that. And they say their --

THE COURT: Well, then you would want the fact that he

was on drugs in evidence then, right?

MR. DeROSE: No, Judge, I don't want that in because I

don't want this jury to think this is a bad man trying to

recover money from honorable police officers. That's --

THE COURT: Well, I wouldn't permit that argument, and

if they made that argument, I would sustain and issue a

directive to disregard that. So no one's going to be arguing

that.

MR. DeROSE: All right, Judge. But what they are

going to be arguing is the impression what are these poor

officers to do when they get called for to bring a Taser out,

and within one minute, they tase the man.

He hasn't hurt anybody. He hasn't touched anybody.

He's not wanted by the police. All the case law says you don't

use a Taser on someone like that.

THE COURT: All right. In this instance, the proffer

of what the evidence will be is that the police officers were

called, at least in part, because of what the paramedics

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believe was an individual who was on drugs at the time. So the

403 and relevance objections are overruled, and the Court will

deny Motion in Limine No. 2.

I'm not going to permit improper argument regarding

that, however. So, Counsel, I'm sure you're not going to argue

the fact that somehow the officers knew what type of drug it

was unless there's some factual basis for that. This is simply

to corroborate their observations, albeit lay observations. Or

even in the paramedics' case, probably more than a lay opinion,

but simply to corroborate their version of events.

And obviously the relevant inquiry -- and the Court

will instruct the jury on the relevant inquiry -- has to do

with what the officers knew at the time and not with the

benefit of 20/20 hindsight. So I think with proper

instruction, the Court can focus the issues for the jury, and I

don't believe the danger of unfair prejudice will outweigh the

probative value.

I believe, in fact, this evidence is highly probative

to the reasonableness of how the defendants proceeded and

corroborates their version of events.

MR. DeROSE: So is the Court keeping out the actual

findings by the hospital? That won't come in?

THE COURT: Your motion's denied. So they can get it

in if they have a foundation for it. How you get the record in

is up to you guys. I don't know. But I'm not excluding it.

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Your motion was to bar the evidence. I'm not barring

the evidence. They have to lay a foundation for it. And I

won't permit impermissible argument regarding it if, in fact,

it gets into evidence.

MR. POLICK: Just as a point of clarification, Judge,

with regard to the officers' observations and their experience,

are they going to be allowed to say that based on their

observations and experience, they believed Mr. Lopez to be

under the influence of PCP?

THE COURT: If you lay the foundation and questioning

for a 701 opinion, then I'll take an objection if I get one.

But normally a 701 opinion's pretty straightforward.

MR. DeROSE: So then, Judge, they're being allowed to

use the reports from the hospital --

THE COURT: I have not -- I have not issued any ruling

regarding the admissibility of an exhibit. You can object if

you have a reason for it. What I'm doing is denying your

pretrial request to bar it. Do you follow?

MR. DeROSE: This has -- I thought I was barred from

even going into anything because of damages. I was supposed to

stop when the officers had taken him into custody.

THE COURT: I said this before, and, Counsel, let me

repeat it so it's crystal clear for you. I have not imposed

any temporal limitation on the evidence, period, end of

sentence.

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There is no point in time that is on or off limits.

What is on and off limits for the first phase of the trial is

evidence and argument related to damages. So if you have an

admissible purpose during the liability phase, I don't care

when it happened. It could happen yesterday. 

If it's relevant and admissible to the liability

phase, then it can happen. There is no temporal limitation

being imposed, simply a categorical one regarding the nature of

the evidence and the purpose for which it's being admitted

because we're bifurcating damages and liability.

Okay. Plaintiff's Motion in Limine No. 3. Based on

the submission, I guess I can grant that as agreed. Is that

fair to say?

MR. POLICK: That would be fair to say, your Honor.

THE COURT: All right. That's going to be granted as

agreed. And, of course, that relates to barring defendants

from using I-CLEAR or LEADS to investigate the jurors.

Plaintiff's Motion in Limine No. 4, to bar any

argument that appeals to the jury's pecuniary interests as

taxpayers. Can that also be granted as agreed, Counsel?

MS. EKL: Yes, Judge, except to the extent that that

would include our ability to argue inability to pay on behalf

of the defendants in relation to the punitive damages.

So to the extent that it may appeal to the jurors'

pecuniary interest when we're having our clients testify about

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how it will personally affect them, that will be the only

caveat to our agreement.

THE COURT: But then you still wouldn't be talking

about the jurors' interest as taxpayers, right?

MS. EKL: Correct, correct.

THE COURT: So I don't understand why we need the

caveat because I don't understand how that's affected by the

motion.

MS. EKL: I guess just the way the motion was written.

Basically they said any argument that may appeal to the jurors'

pecuniary interests. So we're not going to specifically be

arguing, "As taxpayers, this may affect you." But if they

personally relate to the defendant officers, that would be our

only objection. It wouldn't bar us in any way from being able

to elicit that information from the officers.

THE COURT: Well, the only thing I'm barring is an

argument that is appealing to their interest as taxpayers. I

don't see how that argument falls within that, so --

MS. EKL: Okay. We agree then, Judge.

THE COURT: Okay. Granted as agreed. That's

Plaintiff 4.

Plaintiff's 5, bar evidence related to plaintiff's

raising two families and/or using two aliases. The parties

want to be heard on that?

MR. DeROSE: Judge, I don't want them to cast

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aspersions on my client in any way because he has -- he

obviously had two families. He has two young children and two

young adult children and one wife.

So I do not want any references to that or the claim

that he used aliases. He had two different names. He was

Navarez with the one family and Jose Lopez with the other

family.

THE COURT: What's your response?

MR. POLICK: Our response, your Honor, is this is

relevant evidence to bias. Obviously --

THE COURT: Whose bias?

MR. POLICK: The bias of the witness.

THE COURT: Which witness?

MR. POLICK: The bias of the wife and the bias of the

girlfriend, their relationship to Mr. Lopez and what the nature

of that relationship is. They both have children with this

man. That certainly affects their credibility as a witness,

and I think we're allowed to bring out what their biases is --

or biases are.

The majority of our intent to use this, though, I

think also relates to again rebutting the damages claims to

be -- that were opined by plaintiff's expert economist and

using that evidence to rebut the version of Mr. Lopez'

financial net worth that was provided by his wife and his

girlfriend.

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We're not suggesting that he has a propensity to

commit crimes, but I think knowing the relationship between

Mr. Lopez and his wife and the relationship between Mr. Lopez

and his girlfriend certainly is relevant to their bias as

witnesses in this case.

THE COURT: What's the relevance as to bias of the

aliases? How is that relevant to bias?

MR. DeROSE: Judge, he has two different names.

THE COURT: I understand that, Counsel. I'm asking

him what the relevance in his bias cross-examination would be

of the two aliases.

MR. POLICK: I believe that's how they each know him

as. I mean, I believe the wife knows him as Navarez and knows

he uses the name Lopez. And I believe the girlfriend solely

knows him as Jose Lopez. So it explains who he is as they know

him.

THE COURT: The Court's going to take that under

advisement. I'll issue a ruling with the minute order from

today's pretrial conference, and I'll issue a ruling during the

pretrial conference order. So that one for right now is taken

under advisement.

No. 6, do the parties want to be heard? Plaintiff's

No. 6. Is that something I can grant as agreed as well?

MR. DeROSE: I think it's the status of the law,

Judge, but ...

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MS. EKL: Your Honor, we -- defendants would propose

that there be an instruction that it not -- not be granted in

whole in the manner that plaintiff requests, but that if the

individual defendants argue inability to pay that there be an

instruction that the jury only consider their -- and that they

then raise that defense -- that the jury be instructed that

they can only consider an inability to pay as it applies to

punitive damages, but that it not go any further than that.

THE COURT: All right. At this point the Court's

going to grant the motion. If inability to pay is raised and

it affects the jury instructions, then we can address that in

the jury instruction conference. Is that fair to say, Counsel?

MS. EKL: That's fair, Judge.

THE COURT: All right. So it will be granted as

agreed as I just -- granted as agreed as explained in open

court. It's not precluding an inability to pay defense if they

choose to do so. And then the Court will instruct the jury

properly, and we'll figure that out in the instruction

conference.

Plaintiff's Motion in Limine No. 7, to bar defendant

from arguing that Jose Lopez was not a good role model for his

children. Do you want to be heard on that, Counsel?

MR. DeROSE: Yes, Judge. They have indicated that

they want to put in his convictions to show that he couldn't

properly -- as damages because he couldn't properly take care

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of the children with his prior convictions.

The traffic convictions themselves, you could have

a -- you can always get your license reinstated. People do it

every day. And as far as the convictions go, they are so long

ago, Judge. 

He was raising his children. I tell you in there that

his son is in the Marine Corps. His daughter is in college in

the ministry at Lewis University in Romeoville, and she also is

studying criminal justice. He couldn't have two better

children who followed his role.

And the two younger kids, Judge, since he has gotten

taken away from them, they are -- they're emotional wrecks.

THE COURT: What's the relevance of their damages?

There's no claim for their damages pending.

MR. DeROSE: I understand that, but they have told me

that they are going to try to introduce his convictions to show

that he was not -- he was not going to be a proper take-carer

of their -- of his children. He wouldn't be a proper role

model for them.

THE COURT: Well, actually what they indicated is that

they do not intend to affirmatively argue that he was not a

good role model and would only do so if you start introducing

evidence that he was in relation to damages suffered by the

family members that are not at issue.

MR. DeROSE: Judge, I am going to put on children who

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are going to say the impact he has had on --

THE COURT: No, you're not. No, you're not. What is

that relevant to? You do not have a claim for their damages.

MR. DeROSE: Judge, he has a claim to the extent he is

not able to support his children anymore. They have changed

his life. He was a good father. His children, they were cared

for by him. They were loved by him. They --

THE COURT: Those all might be true, Counsel, but you

do not have a pending claim for their damages. So what is the

relevance of that?

MR. DeROSE: The relevance is his claim, Judge.

THE COURT: How is that relevant to his claim? The

loss that they suffered, how is that relevant to the estate's

claim?

MR. DeROSE: Not their -- not their loss, Judge, his

loss. His loss of his ability to be the caring and nurturing

father of children. We all took that responsibility very

seriously.

THE COURT: You're not going to backdoor damages

suffered by the family. That will not happen under 403. That

will not happen.

It has to be relevant to the damages that are pending.

I don't know why you don't have a claim for their damages, but

that's water under the bridge.

MR. DeROSE: Judge, I'm going to ask because they've

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known about these claims we have been making for four years

now.

THE COURT: You don't have a claim in your complaint

for those damages, Counsel. 

MR. DeROSE: Judge --

THE COURT: Counsel, please. You don't have a claim

for that, and it's too late to amend at the pretrial

conference. So the motion -- to the degree you're seeking to

amend, that's denied. That's not fair to the other side.

Discovery's closed.

MR. DeROSE: I haven't asked for it, Judge, but I am

asking for the right to amend my complaint to put in claims

that they've known have been around all this time and don't

even bring it up until the final pretrial. 

THE COURT: They don't have to bring up something

that's not in your complaint. The motion to amend the

complaint's denied. Leave is freely given earlier in the case.

This is the pretrial conference less than two weeks before the

trial, and discovery's long since closed and there's been a

dispositive motion schedule.

It is too late to add claims of damages suffered by

the family. So that motion's denied, and I'm trying to

struggle with the 403 analysis about what you basically are

telling me you're going to try to put in, which is a bunch of

evidence that relates to their suffering and not the damages

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suffered by the estate.

MR. DeROSE: Judge, I've got to analyze everything

your Honor's saying.

THE COURT: Okay.

MR. DeROSE: The day-in-the-life-of film, it also

talked about the suffering. But they're going to report on his

suffering. I can't bring him in to testify. That's

grandstanding, Judge. This man is suffering, and I do believe

that --

THE COURT: You can bring in people to testify about

his suffering. There's nothing wrong with that. In the

damages phase, hell, yeah. You can definitely do that.

MR. DeROSE: Can they also say how close he was to

them, how close he was?

THE COURT: All right. The Motion No. 7 is to bar

evidence that he was not a good role model. His role model

status is not at issue, so I'm going to grant that as

essentially agreed because you don't want them introducing

evidence that he was not a good role model.

So since they're saying that they're not going to

elicit that testimony, it's going to be granted as agreed. But

let me clarify right now. I'm not going to allow evidence

under 403 regarding the suffering of the family.

If it's evidence related to his suffering, the

objection will be overruled. If it's evidence related to their

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suffering, it's going to be objection sustained. And you're

going to have to be able to police that appropriately.

You do not in opening statement talk about the loss to

those children or that family because I'll cut you off on your

opening statement. So if it's real clear now, you are not to

present argument or evidence regarding claims that are not at

issue in the case.

If the role model issue gets into evidence -- and I

can't imagine why it would -- then you realize that that would

open a door to why he was not a good role model. So I think

it's better that that door never be opened because the issue of

their loss is not at issue.

So we'll have to take it as we find it. Okay? Just

so you know where I'm thinking, I'm not going to permit

evidence under 403 regarding damages that are not at issue,

which is a loss to the family.

So to the degree this Motion No. 7 needs to be

clarified, it's granted as agreed, but I'm clarifying for the

parties that I'm not going to permit testimony or evidence or

argument regarding the damages suffered by the family because

there is no claim for that type of suffering.

And I'm also advising the parties that if you think

the door is opened, defense counsel, to his character, whether

it be criminal history or whatever to -- whatever you suggest

the evidence might be that he's not a good role model -- I

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don't know what that evidence is -- you'd better go sidebar

first because I do not anticipate that that door is going to be

opened because you're going to be objecting to and the Court's

going to sua sponte be objecting to evidence regarding the

family's loss because that's not at issue.

That would also not be at issue during the liability

phase. That would only come up during damages anyway. So --

MR. POLICK: Understood, your Honor.

THE COURT: -- that's where we are with No. 7.

Now, that's all of the plaintiff's motions in limine

unless I missed anything, right? I know there's some more

agreed ones, but we'll talk about that in a minute.

All right. Defendants' Motion in Limine No. 1, to bar

generalized evidence of police code of silence, including the

statements regarding code of silence made by the mayor. Do the

parties want to be heard on that?

MS. EKL: Yes, your Honor. This motion I guess kind

of encompasses a number of issues in the case. One, plaintiff

has -- or has expressed an intention to introduce newspaper

articles and other things discussing a code of silence in the

media. He has also expressed a desire to call the mayor to

talk about his statements regarding a code of silence.

He does not have a Monell claim in this case, as your

Honor knows, and your Honor ruled on that during summary

judgment. And at that time, he was not able to even, in the

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context of a Monell claim, articulate that there was a code of

silence issue here.

He has not tried to revive that claim. Right now the

issues before this jury will relate to how -- what the

individual defendant officers did in relation to his client.

Whether or not there was a generalized code of silence in the

Chicago Police Department and whether or not that's talked

about by the media or even to the extent that there may have

been some admissions by -- made by some -- by the mayor or any

other people, that doesn't equate to or he doesn't have any

evidence to point to the fact that these particular officers

engaged in any code of silence in this case. And that's really

what's at issue here.

There will be great prejudice if we inject into this

trial the issues about code of silence and police officers in

general. As you know, it's all over the media about different

incidents related to police officers, and we're really trying

to make sure that this jury hears the evidence here about what

happened in this particular incident in relation to these

particular defendants.

I would also just note -- I don't know if your Honor

wants me to address it all any further in relation to the mayor

in particular or we can hold off on that motion, but it all

kind of relates to the same issue.

THE COURT: Okay. What's your response, Counsel?

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MR. DeROSE: Judge, as I said in my response to them,

paragraphs 68 through 70 of my complaint had been on the books

for a long time. I have said that the Chicago police officers

and the Chicago paramedics and fire department personnel have

long had a code of silence where they don't report wrongdoing

by each other. 

And there has been long a practice where there is no

discipline taken against them because they all keep their

mouths shut. And I suggest to your Honor that the mayor has

very eloquently advised that that has been a problem with the

Chicago Police Department for over 50 years. 

And I gave you the quote from his speech starting on

page 2 of my response. And I suggest that I could cut that

speech down to perhaps 13 -- 15 to 16 minutes and take out all

the references to Laquan McDaniel [sic]. 

But it's an acknowledgment before the police -- excuse

me -- before the city council, to which he got applause, where

he said this behavior of keeping our mouths shut and not

admitting when things are being done wrong is very important.

And, Judge, I think it's part of my case in front of the jury.

The jury ought to know that even the mayor and the

city council acknowledged that this has occurred. In my case,

Judge, we got 11 police officers. Two of them say, "I was not

even there." And that's not truthful.

The records show they all were there, and two of them

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say, "I looked away just when it was happening." It's called

the ostrich defense: Put your head down. Ignore all this.

THE COURT: All right. The Court's going to grant in

part and deny in part the motion. I'm going to permit evidence

and argument regarding these defendants. So if you want to --

if you have a good-faith basis for the argument that these

defendants engaged in a code of silence, I'll permit that.

This is not a -- there is no Monell claim. This is

not a case indicting the entire police department, civilly or

criminally. So 403 -- I'm going to grant any generalized

argument or evidence regarding the police or fire generally,

and I'm going to exclude under 403 and potentially hearsay

grounds news articles and the mayor's speech, as I indicated in

the motion -- the ruling on the motion -- or excuse me -- the

ruling on the summary judgment.

The mayor does not talk about these defendants. So

his statements about the police in general is not material to

what's happening here. You can present evidence and argument

regarding these defendants engaging in a code of silence. You

can go ahead and say that, and you can use that phrase.

What you can't talk about is the police generally

because it's not a Monell claim. And the mayor's out. He's

out as a witness, and he's out as testimony in evidence,

whether it's in a video or otherwise. And news articles

regarding the same are also out. So make sure you don't

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mention either of those things in opening statement.

All right. As to Motion in Limine -- Defendant Motion

in Limine No. 2, it's sort of a similar argument. But do the

parties want to be heard on that? That's the motion to bar any

reference to publicized incident of alleged police misconduct

not involving these defendants.

MS. EKL: Your Honor, it's my understanding that

plaintiff's counsel was not objecting to No. 2, but I may be

incorrect.

MR. DeROSE: No, that's correct, Judge. We're not

going to bring up anybody else's case but my client's.

THE COURT: Okay. Defense Motion in Limine No. 2 will

be granted as agreed.

MS. EKL: And, your Honor, just one point of

clarification. I think counsel did point out we had said --

plaintiff -- we've asked to bar any publicized incidents of

police misconduct, including to the extent there was any

police -- or any -- any media coverage of this particular case.

So I think he has agreed as it relates to other cases,

but we do not -- we'd be seeking to bar him from mentioning to

the jury that there may have been a newspaper article or two

referencing this particular case.

THE COURT: Are you intending to reference --

MR. DeROSE: I will --

THE COURT: Hang on a second, Counsel. I'll get it

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out as quick as I can, but she can only take one person at a

time.

Do you intend to introduce any testimony or evidence

or argument regarding news coverage of this case?

MR. DeROSE: No, Judge.

THE COURT: Okay. There you go. Granted as agreed,

clarified in open court.

Defendants' Motion in Limine No. 3, to bar evidence or

arguments regarding violations of CPD general orders, rules,

regulations. Do the parties want to be heard on that?

MR. POLICK: Yes, your Honor. It's our understanding

based on the plaintiff's exhibit list that he intends to

question both the officers and the paramedics about certain

orders that they follow. Basically the Seventh Circuit has

ruled that that is prejudicial because it presents a confusion

of the issues to the jury.

The issue is here not whether the officers

appropriately followed department rules and regulations, but

whether Mr. Lopez' constitutional rights were violated. This

is not a case about whether they should be disciplined for

failure to follow the rules if they did not follow them.

So the prejudice that ensues with this type of

evidence is the jury becomes confused as to what they are to

decide, and it detracts from the issues in this case whether

Mr. Lopez was illegally seized and whether Mr. -- whether the

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defendants used excessive force upon him.

THE COURT: What's your response, Counsel?

MR. DeROSE: Your Honor, there's about four special

orders of this department and of the municipal code in the City

of Chicago that are critical in this case.

They come right out and say in the police department

special orders if you come across a man on the street who is

intoxicated or under the influence of alcohol and he refuses

any attention at all, he does not agree to be transported

somewhere, all police activity is to cease.

Now, Judge, they're taught that. The officers have

told us under oath they're taught that. When this man, if they

believed he was under oath -- excuse me -- under drugs or under

alcohol and he didn't want their help, they had to leave him

alone. And we've got the investigators from the police academy

who say, "We teach these guys that."

And if this man walked up to him with a Taser in his

hand knowing that he wasn't going to be under arrest and he

wasn't going to -- then he said it was excessive force that he

tased him. Now, that's why these two or three, maybe four

special orders are so very, very important.

THE COURT: Counsel, do you -- counsel for defense,

you're not intending to discuss use-of-force training with

your -- in your defense of the excessive force?

Are you intending to get into any of that training or

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general orders or how to explain what your clients did or did

not do at certain points in the incident?

MR. POLICK: We intend to elicit that from the

officers as to when they can appropriately use the Taser, under

what circumstances.

THE COURT: So you're going to be referencing their

general orders and their training?

MR. POLICK: No, just what they know based on their

training, not the specific general --

THE COURT: Well, isn't the general order part of

their training?

MR. POLICK: The general order, yes, is part of their

training. But we don't -- I mean, the general orders say a lot

of things, many things that are irrelevant to this particular

case.

THE COURT: Well, if you got into on direct with let's

say one of your clients, "Well, you know, your custom and

practice is to follow your training regarding X, Y and Z," and

then he wants to get into the fact that, well, their very

training included the general orders and here's one that he

violated, I mean, why wouldn't that be proper rebuttal? 

Obviously, it would come with a limiting instruction

not to conflate the constitutional analysis with the general

order violation. But if you're getting into their training and

their custom and practice in terms of the use of force and part

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of that is general orders regarding use of force, then wouldn't

it -- some of the general orders become admissible even with

the limiting instruction?

MR. POLICK: I don't know that they become admissible,

your Honor, because, again, I think even if it may be relevant,

the prejudice is that the jury may be confused as to what

standard they appropriately applied in the --

THE COURT: But you would be -- but you would be

bringing that out yourself as part of your defense. And the

question -- the question would be he's got to be able to rebut

it, right?

MR. POLICK: I think he's allowed to rebut what we put

in. I don't think it would be in terms of showing what custom

and practice is. But it's our -- it would be more along the

lines of when are you allowed to use this particular force

option, and they would say these are -- these are the -- these

are the circumstances under which we can use that.

THE COURT: And if that's memorialized in a general

order, why wouldn't he be allowed to get into it and explain

that they didn't follow it with a limiting instruction?

MR. POLICK: Because, again, even though it may be

relevant, it would be prejudicial because it would confuse the

jury as to what the proper standard is.

THE COURT: All right. I'm going to grant the motion

No. 3. However, that door can come swinging wide open based on

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your testimony and argument.

So don't mention general orders in opening statement,

but listen to what they say in their opening statement and what

they present in evidence and then just come sidebar and go,

"Hey, Judge, guess what. I think the general order is relevant

now because they got into what their training were and what,

you know, the proper use of force."

If that's the case, then depending on the testimony

and the evidence and the argument, I might have to revisit the

Court's granting this. I'm going to grant it initially because

there isn't -- and the Seventh Circuit is really clear in

Thompson v. City of Chicago, which is 472 F.3d 444, that even

though there's theoretical possibilities for particular rules

or general orders being relevant and probative and admissible,

there's a danger that the failure to follow general orders or

other rules is conflated or mixed up with the constitutional

analysis that the jury has to make.

So I do not anticipate any of this getting in. But if

the defendants open the door to it, then I anticipate that some

of it's going to get in with a limiting instruction. So at

this point, I'm granting it as clarified in open court and

subject to revisiting at sidebar with a request by the

plaintiff's counsel.

MR. DeROSE: And, Judge, would it also apply when I'm

taking these witnesses as a hostile witness or adverse

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witnesses when I'm questioning them?

THE COURT: You can't open the door unilaterally.

Okay? 

MR. DeROSE: I can? 

THE COURT: You cannot. You cannot get into it

because I'm excluding it. But if they get into it on what

essentially is a friendly cross, then your redirect is going

to -- which is going to be a 611, we'll get into whatever you

need to.

And because we're not going to have beyond the scope

objections, you might have to have a long redirect based on

what they say. And obviously during the direct testimony, if

the witness unilaterally opens the door, then all you've got to

do is go sidebar and say, "Judge, based on that, I think the

general" --

MR. DeROSE: Can I ask him, Judge, "Are you taught

that a witness has a right to refuse your attention and you

have to walk away?"

THE COURT: You cannot get into general orders or

department rules or regulations. You can talk to him about his

training, but don't get into what the rules say unless someone

opens the door to it.

MR. DeROSE: Okay.

THE COURT: I don't know if -- is that clear enough?

MR. DeROSE: It is clear, Judge.

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THE COURT: Everybody clear? All right. If it needs

to be clearer, let me know because it's hard to do in the

abstract without an actual question pending. So ...

MR. POLICK: Understood, your Honor.

THE COURT: Okay. All right. So the minute order --

or the order's going to say general question regarding training

is going to be okay, but we're not going to get into specifics

of any general orders or rules unless the door gets opened to

it and there's permission at sidebar.

Okay. Number -- Defendant 4, to bar any evidence or

reference to IPRA's investigation or the FBI investigation.

Parties want to be heard on that?

MR. POLICK: Yes, your Honor. Basically this type of

evidence is simply irrelevant to the claims that are being put

before the jury, which are was Mr. Lopez illegally seized and

was excessive force used.

I mean, liability here is based upon personal

involvement, and the focus of the jury should be on whether the

defendants themselves violated Mr. Lopez' constitutional

rights, not whether there was an investigation into it.

Evidence that an investigation was conducted either by

IPRA or the FBI is also irrelevant because I think that would

go to plaintiff's Monell claim, which this Court has dismissed

on summary judgment. So it has no relevance to the issues that

remain in the case.

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The prejudice argument would be, you know, the jury

starts hearing evidence that somebody else investigated it

here. They may put undue weight on that, and it robs the jury

of their role in this particular case. They're here to decide

whether these defendants violated Mr. Lopez' constitutional

rights, not whether somebody else determined that they did.

THE COURT: What's your response, Counsel?

MR. DeROSE: Judge, it's I suppose quite similar to

before. Paragraphs 68 to 70 talked about the police code of

silence, covering up for each other, the paramedics covering up

for them, no investigation whatsoever by anyone.

The police officers have never to this day been

questioned by this -- by anybody in authority in the department

while my client lays where he lays. Nobody has been taken to

task for this.

This is important to show the whole cover-up by these

people, knowing "We're never going to be disciplined in any way

for this." This is the kind of stuff that we're talking about

that is going on throughout our country today, Judge.

THE COURT: All right. But we're not going to try

what's going on in our country today. We've got to try the

case that's pending here.

What evidence of the FBI or IPRA are you seeking to

admit, the absence of an investigation or actually --

MR. DeROSE: The absence of an investigation, yes,

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Judge.

THE COURT: Okay. 

MR. DeROSE: I've got the FBI agent I mentioned, your

Honor, months ago, and you were nice enough to allow me to go

and question the IPRA investigator. She never did anything. I

gave her all -- she said, "We don't have any sworn statements

about what happened."

I gave her the sworn statement from my client and

every one of the defendants. She still did nothing. The FBI

got involved, I mentioned to your Honor. They said, "We'll get

you an answer." She still wouldn't answer.

Then finally, as soon as the FBI put some pressure on

her, she threw out the whole investigation without ever

investigating anyone.

THE COURT: Well, she's not a defendant, though. So

what has that got to do with these guys and what they did or

didn't do?

MR. DeROSE: Judge, it's all part of the cover-up --

THE COURT: The cover-up -- there's no Monell claim.

How did they conspire with the defendants here? How is the FBI

or the IPRA conspire -- 

MR. DeROSE: He's --

THE COURT: Please, Counsel, wait till I finish my

remark before you interrupt. It makes the transcript

incomprehensible.

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How is what the IPRA or FBI did or didn't do, how is

that relevant to these defendants? What's the connection?

MR. DeROSE: Because, Judge, they can act with

impunity, and that's what they're doing. I'm trying to give a

motive for their behavior throughout this.

You'll hear some very laughing firefighters making

some very offhanded remarks about this entire investigation.

Nobody expects, and this is what I would like the Court to

allow me to talk to the jury about. These people are acting

the way they are because they don't expect. No one ever holds

them to task on this.

THE COURT: Well, you could ask questions of the

defendant certainly in a damages phase when punitives may or

may not be relevant about what the defendants might expect. 

But, again, what is it -- how are you going to get

into evidence that there's no FBI investigation? How do you

know that? Normally they don't tell people who they're

investigating, and certainly to the degree there's any grand

jury activity, they're prohibited from law from telling anybody

what may or may not have occurred.

And the fact that the U.S. Attorney's Office does or

does not decline, the fact that the State's Attorney's Office

does or does not decline, those are different analyses with

different standards, different proceedings. And we're not

privy to the analysis that occurred there.

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And the same thing with IPRA. IPRA's not looking for

constitutional violations; they're looking for rules violations

and potential referrals for criminal prosecution. They're not

making an investigation to support or not support a 1983 claim.

It seems incredibly confusing for the jury, and I

don't even know how you would get it into evidence. How are

you going to get into evidence there's no FBI investigation?

MR. DeROSE: Judge, I don't know that there was no

FBI. I never mentioned that. I want to talk about no IPRA

investigation. FBI tried to help me get the results of

whatever IPRA was doing.

THE COURT: All right. The Motion No. 4 is going to

be granted in part. I'm not going to permit evidence or

argument regarding IPRA or the FBI investigation. You can't

make references to those because those are not relevant to the

claims here.

However, because I'm granting in part, I'm also

denying in part. If there's a piece of evidence that was also

looked at in an investigation or a statement made during an

investigation, that may or may not have independence --

independent admissibility.

So, for example, let's say one of these guys made a

prior inconsistent statement in an IPRA investigation. You

wouldn't be able to talk about the IPRA investigation, but

you'd be able to talk about the statement that was made under

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oath: "Well, you've talked about this incident before, didn't

you, sir?" "Yeah." "And you were interviewed on such and such

a date, and you said such and such a thing." 

So I'm not excluding evidence from -- that IPRA or FBI

might have looked at, but the fact that FBI or IPRA had an

investigation or didn't have an investigation, that's excluded

because I don't want to confuse the jury. And this is an

exclusion under 403.

I don't want to confuse the question that's presented

to this jury, which is a different question with a different

standard and a different set of facts than what IPRA or FBI may

or may not have looked at. So that's granted in part and

denied in part as articulated in open court.

As to No. 5, Defendants' Motion in Limine No. 5, to

bar any evidence or reference to the recent DOJ investigation

and report. Do the parties want to be heard on that?

MR. POLICK: Yes, your Honor. I think this goes

hand-in-hand with No. 4. Again, it's another investigation

that came down maybe two weeks ago. It might have had some

relevance if plaintiff's Monell claim was still viable, but

that claim is no longer viable.

What is at issue here is whether the defendants

violated Mr. Lopez' right, and they shouldn't be prejudiced

with a report that's going to be designed to inflame the jury

against police officers in general and take their attention

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away from the focus, which should be whether any of the

11 individual defendants in this case are personally liable to

Mr. Lopez.

THE COURT: What's your response, Counsel?

MR. DeROSE: Judge, if you'd just look at page 10 of

my response, the very last paragraph, I'd like to read you just

two sentences. It says: "As discussed throughout this report,

this pattern is largely attributable to systematic deficiencies

within CPD and the City. CPD has not provided officers with

adequate guidance to understand the how and when they may use

force or how to safely and effectively control and resolve

encounters."

Judge, that's this whole case.

THE COURT: How is it the whole case in the absence of

a Monell claim? There's no reference -- there's no specific

reference in the DOJ report to these individual defendants,

right?

MR. DeROSE: No, Judge, but they have -- they have

hundreds of examples in there which sound just like our case,

officers saying they were flailing their arms -- they use code

words, flailing their arms -- and so the officer had to tase an

unarmed person, in one case a 14-year-old girl. She was

flailing her arms, so the officers decided --

THE COURT: So you want to put into evidence and try

every instance that was in the DOJ report. We're going to have

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a mini trial about what DOJ did or did not look at in that

report.

MR. DeROSE: No, Judge, I don't, but I do want to --I

do want to --

THE COURT: All right. Then articulate how it's tied

to these defendants. There's no Monell claim pending.

MR. DeROSE: Judge, what I want to show is that they

use code words to describe their rather cavalier activity. And

I would like to pick three or four examples out of that report

and say this is the kind of stuff that gets report -- gets

reported to IPRA, and they never find any of these officers

liable for anything.

THE COURT: What's your response, Counsel? He wants

to use references in there regarding code words.

MR. POLICK: Again, my clients are to be judged on

what they did here, not what somebody thinks some other group

of police officers or police officers in general may or may not

have done.

We have no idea what that report is based on. We

don't know what specific incidents they looked at. We don't

know who they interviewed. We don't know what evidence that

they looked at. And all it's being used for is to inflame the

jury against the police.

My clients have no control over that investigation.

And none of them have given statements or been interviewed by

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the DOJ. So it's completely irrelevant to the issues that the

jury has to decide here, whether the 11 defendants in this case

are personally liable to and were personally involved in the

deprivation of Mr. Lopez' constitutional rights.

THE COURT: Do you have any evidence that you can

proffer that these defendants have used code words in the

report writing?

MR. DeROSE: Judge, the code word is "flailing of

arms."

THE COURT: No, Counsel, listen carefully. Listen

carefully. Do you have evidence that these defendants have

used code words in previous reports that they've issued? The

DOJ report's out. There's no Monell claim. So that Motion in

Limine No. 5 is granted.

But to the degree you're proffering "I want to cross

them on the fact that they're basically putting in a -- making

a false report, and one of the ways they do it is code words,"

then I'm happy to hear what your proffer of evidence is because

that may or may not be relevant. But that's something totally

independent of the DOJ's report.

Do you have evidence that these defendants have

engaged in a practice where they would use code words to

basically manufacture false reports?

MR. DeROSE: Judge, we only have two reports in this

case. We have the words in their depositions. Their words are

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exactly as described by all these -- by many of these other

officers when they use Tasers on unarmed people.

You ask them in their deposition, "Tell me how he was

flailing his arms," and they have no explanation. They come up

with some really -- I want to talk about what they're going to

say in the courtroom. And when they use words like "flailing

of arms," this is the code words that they've been using for

years when they tase people.

THE COURT: You can cross them on what words they use

and whether or not there's any factual basis for it. So if you

want to ask them questions about what flailing arms mean and

then cross them with their deposition, you go at it. All

right. That's not encompassed by Motion in Limine No. 5.

Motion in Limine No. 5 relates to the DOJ report, and

I'm excluding it under 403 analysis and granting Motion in

Limine No. 5. But to clarify, Counsel, you can cross them on

what they did or did not put in their reports and whether or

not you can test their veracity under a 611 inquiry.

All right. Defendants' Motion in Limine No. 6, to bar

undisclosed witnesses in evidence. I'm not really sure what

that means. Can someone tell me? If it's undisclosed, how do

you -- what am I supposed to bar?

MS. EKL: Certainly, Judge. For instance, plaintiff

identified three witnesses in their trial witness list, one

including the mayor, but then also an FBI agent, Eugene

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Jackson, and Dr. Melnick, who purportedly, according to the

pretrial order, is going to opine or testify regarding some DNA

results.

Neither of these witnesses were identified during

discovery. Defendants have not been provided anything about

these witnesses until the pretrial order. And so based on

Federal Rule of Evidence 37(c)(1), which mandates that if a

party fails to disclose a witness or information pursuant to

Federal Rule of Evidence 26(a) or (e), we would be seeking to

bar that evidence or those witnesses from being introduced at

the trial.

There were also some of the exhibits that were

identified in the pretrial order that even as of the filing of

the exhibits, we weren't quite sure what they were because they

were not identified by Bates stamp number. Counsel provided us

with exhibit books that we were told mirrored what was given to

the Court, but there were no exhibits contained within the

book.

So to the extent there's something new that we've

never been provided before preparing for the pretrial order or

even haven't been provided as of today, we would be seeking to

have that barred.

THE COURT: What's your response, Counsel? Let's take

it issue by issue. Special Agent Eugene Jackson, was that

person disclosed in the discovery process?

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MR. DeROSE: I disclosed him, Judge. He was also in

the moving papers when you gave me permission to take the dep

of the IPRA investigator. He's the FBI agent who got them to

give us an answer, which was "We'll close the file."

That's all he's there for, Judge. If he -- if he's

going to be needed during the course of the trial, I want them

to know everybody that I potentially could use.

THE COURT: Well, in light of the Court's ruling on

Defendants' Motion in Limine No. 4, do you anticipate calling

Special Agent Eugene Jackson?

MR. DeROSE: I don't think so, not -- no, no.

THE COURT: Okay. Just so you know, he can't testify

unless you've complied with the CFRs. Are you aware of that?

MR. DeROSE: I didn't know that, Judge.

THE COURT: Okay. An FBI agent cannot be subpoenaed

in a civil case unless you comply with the Federal -- the

Federal Code of -- Code of Federal Regulations. And there's a

process that is involved.

MR. DeROSE: I'll remember that.

THE COURT: So even if you wanted to testify to him, I

doubt you could get him on the stand. But I don't think it's

going to be --

MR. DeROSE: I don't think --

THE COURT: -- at issue at this point.

All right. What about Dr. Melnick?

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MR. DeROSE: Judge, from word one, Ms. Gomez had those

two little kids at my house who I had to stay home with while

he was taken to the -- those are Jose Lopez' kids. The very

first thing I did was get a paternity test done because I knew

that his wife has her own interests. 

They don't like each other, Judge. You're going to

find that out in this courtroom. But that -- those babies are

his children also. And that's just if the issue comes up about

whether or not Nahum and Tais, T-A-I-S, are his children.

THE COURT: Is there any dispute on --

MS. EKL: No, Judge. 

THE COURT: -- paternity? 

MS. EKL: There is not.

THE COURT: Do the parties want to stipulate right now

to the paternity?

MS. EKL: That's fine, Judge, yes.

THE COURT: All right. 

MR. DeROSE: I'll be glad -- that saves us one.

THE COURT: All right. I'll tell you what. That

witness is off your list because right now a stipulation has

been entered into, and you can publish it, if needed, during

trial at any time.

So Counsel's indicated that they're not going to

suggest otherwise. If they do, then the stipulation would go

right into evidence. So it's not at issue.

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Okay. So that's the two big issues on Motion in

Limine No. 6. I'm going to deny Motion in Limine No. 6 as

moot. Deny as moot.

But I do want the parties to meet and confer regarding

any of the exhibits because I know some of the exhibits were

kind of spilling in piecemeal. But hopefully that's sort of

settled its way out. I want the parties to meet and confer

regarding each other's exhibits.

And if there's any other challenges to something being

not disclosed and you want to categorically preclude it as

opposed to simply making an objection at trial, they go,

"Judge, this is not even a question of admissibility; this is a

question of a discovery sanction," or whatever, let me know in

the submission of February 3rd, saying, "The parties have met

and conferred, and the following two exhibits, defendant is

saying that they were not properly disclosed and would ask that

they be precluded at trial."

That's different than simply making an objection under

the Federal Rules of Evidence. So meet and confer on that.

Hopefully there are no issues, but if there are, make sure I've

got that, and we can sort that out on selection day, which is

another reason not to have the openings on the day of selection

because once we have the jury selected, we can sort through any

of the issues that remain outstanding between the parties.

Okay. Defendant Motion in Limine No. 7. 

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How are you doing on time, Lisa? Are you okay? Do

you need a break?

(Court and court reporter conferring.)

THE COURT: Let's take a quick 10-minute break, and

then we'll come back and finish up. Thank you.

(Recess at 3:20 p.m., until 3:28 p.m.)

THE COURT: We're back on the record.

Defendant Motion in Limine No. 7. Based on the

submissions, can I grant that as agreed?

MR. POLICK: Based on plaintiff's response, Judge, I

believe that's the case, that he is going to agree to that. I

understand he wants to reserve it in terms of a punitive

damages argument, but the motion was directed that he could not

tell the jury to send a message to the City. So based on

plaintiff's response, I think that can be agreed.

THE COURT: All right. If someone thinks they want to

revisit this, as with any of the Court's rulings, you have to

do it at sidebar. But at this point, Motion in Limine No. 7

will be granted as agreed.

Defendant Motion in Limine No. 8, what's the position

of the parties? That has to do with the plaintiff from

advancing new arguments or asking the jury to consider a

specific damage award or range for the first time during

rebuttal closing argument. What's the position of the parties?

MS. EKL: Your Honor, I wasn't clear from plaintiff's

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response whether he was agreeing or not. He said that he fully

understands what is appropriate rebuttal under existing case

law and will be careful not to violate the law.

What defendants are specifically seeking to bar is

plaintiff getting up in closing argument and making arguments

in general, but not asking the jury for a specific dollar

amount and waiting until rebuttal to do that. 

So we would ask that if he's going to ask the jury for

a specific dollar amount that he be required to do that in his

opening close because it wouldn't be proper rebuttal to do it

in rebuttal unless we were to give out a number and then he

wanted to counter that.

THE COURT: What's your response to that? Do you want

to give a number?

MR. DeROSE: I don't know what my -- I'll make the

final close. My co-counsel will make the original close. In

this case I wouldn't be surprised that he does come up with a

very big number. But if he doesn't, if he mentions punitive

damages and then they respond, well, he's not entitled to any,

then I'm going to go -- I'm going to go all out and give them

all the damages I think are appropriate.

And, Judge, I don't think we should be limited in any

way and say I know I can't do rebuttal for damages if they

don't raise them in their close. So if they keep their -- they

don't mention damages, I guess I don't because I'm only going

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to reply to what they actually -- rebut what they actually say.

That's what I meant by the law.

THE COURT: Do you have anything other than the West

Virginia case? I mean, I don't understand your theory that

it's not rebuttal to put a number on it. Whatever you're going

to say, you're going to say there's no liability. 

So from a conceptual, theoretical standpoint, a number

is rebuttal. So what's my basis in law for forcing him to put

a number in his opening close rather than his rebuttal close?

MS. EKL: Well, it's our position that if we do not

give a number to the jury, then it wouldn't be proper rebuttal

for him to give a number.

THE COURT: Do you have a case that says that other

than the one you cited?

MS. EKL: Not one that we've cited, no, Judge, not

either way.

THE COURT: That one's going to be denied. He can

argue the way he wants. And if it's not proper rebuttal, I'll

do that. But I think he's fully within his power to raise a

number for the first time if it's consist -- because he's going

to argue the facts that underlie the number in his opening

close, and then he's going to respond to what you say, which is

the number should be zero because the liability should be zero

or whatever.

I guess if we have a bifurcated close, liability would

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have already been decided at that point. But at that point you

would be saying it should be a low number or it should not be

punitives; you have zero punitives and just the compensatory 

or whatever. So I think a number in response to that would

also be rebuttal.

So just so you know, he may or may not give a number

in his rebuttal close. So if you want to give a number during

yours, that's a choice you've got to make one way or the other. 

I'm not going to preclude him from doing so because in

the absence of some authority from the Seventh Circuit, it says

I should.

Defendant Motion in Limine No. 9.

MR. POLICK: Judge, I would hope that this is probably

one that we should be able to work out a stipulation to. What

we're referring to there, there are printouts commonly referred

to as event queries that are generated by the Office of

Emergency Management and Communication, OEMC.

And what we're trying to prevent in the questioning is

counsel giving his interpretation of what these acronyms that

are used in this printout mean or don't mean. If he's willing

to give us a list about what particular entries that he is

interested in and what he believes these acronyms or entries

mean, we're certainly open to working out a stipulation to

avoid having to call somebody in here to explain it.

MR. DeROSE: Your Honor, we deposed all these people.

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We know what the acronyms mean. But since we know it's a

finite amount, they're on the event queries. If they just give

me the meaning of those, I'll be careful to always watch that I

don't misstate what they are.

THE COURT: Well, you can't testify, period, end of

sentence. You have to either have a witness or a stipulation.

So it sounds like the parties should work out a stipulation.

And if you could submit that on February 3rd at noon as well,

I'm happy to have a stipulation for you. 

And that's probably the easy way to do it, just have a

stipulation this code means this because it's not really in

dispute, and that would save an unnecessary witness, obviously.

And then once that's in evidence, you can argue the

evidence, but you can't testify, obviously. So I'm going to

grant Motion in Limine No. 9 because attorneys can't testify.

That's just a black-letter statement of the law.

And if you want to get in what these code references

mean, you need either a stipulation or some comparable

evidence -- competent evidence.

All right. Motion in Limine -- Defense Motion in

Limine No. 10, to bar reference or argument that City employees

are paid to testify or be professional witnesses. Can I grant

that as agreed based on the --

MR. DeROSE: Yes, Judge.

THE COURT: Okay. Grant as agreed.

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Motion in Limine -- Defendant Motion in Limine No. 11,

to bar counsel from bringing Jose Lopez into the courtroom,

display him to the jury. 

What's the position of the parties on that?

MS. EKL: Your Honor, I believe from looking at

plaintiff's response that he's agreeing, but I wasn't quite

sure if he still intends to actually bring Mr. Lopez into the

courtroom.

My understanding is that Mr. Lopez is not able to

communicate. We've never been given any indication that he's

actually going to testify. And the sole reason they would be

bringing him in, if they still intend to do so, would be

basically to display him to the jury and have the jury look at

him in the condition that he's in to try to evoke sympathy.

It would be overwhelmingly prejudicial. He's not

going to be understanding what's going on if he were brought

into the courtroom. So to the extent plaintiff still intends

to bring him in, we would be objecting.

THE COURT: What's your position on that, Counsel? Is

he able to observe events and know what's happening?

MR. DeROSE: Yes, Judge. When -- some of her

statements are terribly wrong. He knows everything that's

going on. He cannot speak. He can blink his eyes "yes" or

"no," and he can understand what you're saying to him.

I guess what I need to know -- and, Judge, this is the

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hard part -- when and if I would ever be allowed to use the

day-in-the-life-of film because if he's not -- if I can't use

that on the case-in-chief, I think he should have a right to be

in here to -- at least on the very important first phase of the

case -- so he can by his answering a question, if they want, or

just appearing before the jury say, "This is what they did to

me."

THE COURT: Hang on a second. The -- if he can

understand what's happening, he is allowed to be here. He is a

party to the case. I'm not going to preclude him being

present.

His presence in the courtroom, though, is not

evidence. So absent him taking the stand, his appearance is

not something that can be argued. And if you need a limiting

instruction regarding his appearance, then I'll fashion

whatever you want. 

But it's a pretty high standard for you to establish

that a party who's the plaintiff in the case can't see what's

happening in a courtroom. Courtrooms are open. And he has a

right to be here because it's his case, and he has a right to

see that his case was given a fair adjudication according to

the rule of law.

His appearance might evoke sympathy, and I'm going to

instruct the jury that they are to disregard sympathy. If he's

medically able to be here, he's able to be conscious enough to

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know what's happening, then he has a right here. 

If he was comatose and had no brain activity and would

not be able to observe things, we'd be in a different boat.

But simply because he can't talk or walk doesn't mean he's not

a person who is able to observe the proceedings.

I don't see how this is connected to the day-in-life

at all, though. So his presence in here or not has nothing to

do with the admissibility of that. So he can be here because

he's a party, but that's it. And if you need to fashion a

limiting instruction or whatever you want, go ahead and submit

that by February 3rd and I'll take a look at it. But meet and

confer with the other side if you think that's what you want to

do.

MS. EKL: Your Honor, I was not in any way trying to

mislead the Court. It was our understanding that he didn't

understand and would not be able to comprehend what was going

on. So that was --

THE COURT: Well, he just told me that he can do that,

so -- 

MS. EKL: Okay.

THE COURT: -- that's enough to get him in the door.

All right. So Motion in Limine No. 11 is denied.

Motion in Limine No. 12, Defendant Motion in Limine

No. 12, any evidence, testimony, argument or reference to

impact, effect or loss of relation to any third party as a

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result of the injuries.

Based on the Court's prior rulings, unless there's

something else you want to address, I would be granting that

because damages to the family are not -- that is not a pending

claim.

Is there something I'm missing on that, Counsel?

MR. DeROSE: No, Judge.

THE COURT: Okay.

MR. DeROSE: Probably a bad lawyering job on my part,

but you didn't call that out. So maybe you didn't notice it,

so I won't mention it.

THE COURT: I'm not sure what you're referring to

there. What are you referring to?

MR. DeROSE: I probably should have put that clause in

the complaint.

THE COURT: Oh, okay. All right.

MR. DeROSE: I messed up.

THE COURT: Okay. Motion No. -- Defendant Motion in

Limine No. 12 is granted.

Motion -- Defendant Motion in Limine No. 13, do the

parties want to be heard on that? Can I grant that as agreed?

MR. DeROSE: I never call the City a deep pocket. I

know they're broke as can be, Judge.

(Laughter.)

THE COURT: All right. That will be granted as

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agreed, with a sigh of depression on behalf of everyone who

lives in the City. Okay. Granted as agreed.

Motion in Limine No. 14, can I grant that as agreed as

well?

MR. DeROSE: Judge, I don't understand what they're

asking.

THE COURT: I don't either.

MR. DeROSE: I never invite anybody to press coverage

since Judge Bua took me to task.

THE COURT: You know what? Actually, you know what?

I'm going to deny that as moot because I'm not barring anyone

from exercising First Amendment rights. I'm going to deny that

as moot. But it doesn't sound like counsel intends to engender

any publicity.

And to the degree anyone thinks there is going to be

publicity, which I do not anticipate, we can sort that out

during jury selection and make sure people who are on the jury

are not exposed to any publicity. And they'll get numerous

instructions not to expose themselves over the course of the

case as well. So I'm going to deny 14 as moot.

Defendant Motion in Limine No. 15, to bar plaintiff's

expert Philip Hayden. Do the parties want to be heard on that?

MR. POLICK: Yes, your Honor. The defendants are

moving to bar Mr. Hayden from testifying as an expert in this

case because we don't believe his opinions or the bases

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therefor meet the standards under Federal Rule of Evidence 702

and Daubert v. Merrell Dow Pharmaceuticals.

Basically what Mr. Hayden is being brought in here to

opine upon is that the officers' acts here were unreasonable

and they used excessive force in dealing with Mr. Lopez. That

is basically what the jury is here to decide. And basically

just getting a bottom line or just telling the jury how to

decide the case is not helpful to the jury, and it should be

barred on that ground.

There's simply legal conclusions that have no place in

an expert's opinion. Your Honor's going to instruct the jury

as to what the standard is here. The expert shouldn't get up

there and put his opinion on the case and have that imprimatur

of the expert to sway the jury that it should be decided the

way he sees it.

He also indicates in his opinion as a corollary to the

fact that the officers used excessive force is that they should

have instead contacted mental health professionals to deal with

Mr. Lopez. When asked at deposition who these mental health

professionals were or whether they were even available at the

time, Mr. Hayden had no knowledge of that.

He's not a medical doctor. He's not a mental health

professional. He's not a psychiatrist. He's not a

psychologist. So basically his opinion here is -- is nothing

more than sheer speculation. He doesn't hold himself out as

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having any expertise in the mental health profession, and

therefore, because he has no basis for that, that opinion is

really not helpful to the jury.

And also it's basically telling the jury to look at

this in hindsight, and that they're not allowed to do under the

law that your Honor will instruct them on.

There's other bases for which we believe Mr. Hayden

should be barred. Just the bases for his opinions that the use

of force here was excessive, he's using or relying upon

International Association of Chiefs of Police training keys or

policies. He's looking at Ninth Circuit cases, and he's also

looking at the Supreme Court's decision in Graham v. Connor.

First of all, we believe he interprets these cases

incorrectly. Reliance on Ninth Circuit cases I also think is

misplaced. The Seventh Circuit had had occasion to address

cases in which the police were accused of using excessive force

because they used a Taser under certain circumstances. So

those are controlling here, not Ninth Circuit cases.

Also, I think the use of the International Association

of Chiefs of Police policies, that gets back to the whole

training or general orders motion that we argued a bit earlier

this afternoon.

Again, he's injecting policies and procedures into

this case that these defendants are not controlled by, and he's

using a different standard that may differ from the standard

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that your Honor is going to instruct the jury on. So he's

using bases here that are contrary to the law that the jury

must decide this case on, and he should be barred for that

reason as well.

Also, any opinions that he has as to the credibility

of the parties should be barred. I think it's pretty clear

that experts are not here to give opinions on the believability

or truthfulness of any witness' testimony or their version of

the events. In his opinion, he tried to suggest that, you

know, maybe certain officers, particularly Vidljinovic and

Guettler, their testimony doesn't match up with or conflicts

with other officers' testimony. That's not for him to opine

on.

Credibility is the province of the jury, and

Mr. Hayden should not be allowed to comment on the credibility

or the believability of one officer's version of events over

another.

He also has opinions on witnesses' and parties' state

of mind. He assumes or opines that Mr. Lopez may have been

frightened. Well, he has no basis for that. He doesn't know.

He's not competent to testify to what Mr. Lopez, his mental

state was.

And he says with regard to Officers Vidljinovic and

Guettler that they were overwhelmed by their own heightened

anxiety and this is what caused them to use the force that they

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did. Again, he has no basis for that. And moreover, the

officers' subjective intent here is irrelevant.

The case is to be decided on objective reasonableness,

not the officers' subjective intent. That's the holding of

Graham v. Connor, the Supreme Court case dealing with an

officer's use of force.

He also has some opinions regarding what the officers

did prior to actually seizing Mr. Lopez. I think it undisputed

in this case that Mr. Lopez was not seized until the officers

used the Taser upon him. So anything prior to that, any

pre-seizure activity, is not governed by the Fourth Amendment

and -- because it's not a seizure. And his opinions regarding

whether the officers should have done something different

before they seized Mr. Lopez is really irrelevant and should be

barred.

So for all of those reasons -- and I know there's

several of them -- we believe that Mr. Hayden, plaintiff's

police procedures expert, should be barred from testifying in

this case.

THE COURT: Before I get a response, how was your

force expert -- how do you -- Mr. Darrell Ross, I believe. How

do you anticipate his testimony going?

MR. POLICK: I anticipate his testimony being that

he's not going to tell the jury whether this is reasonable or

not. That's for them to decide.

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What Mr. -- or Dr. Ross' testimony would be, specific

to the Taser use in this case and why that option was more

appropriate than the other options that plaintiff has suggested

and injected into this case: namely, going hands-on with

Mr. Lopez, using physical force to overpower him, given the

sheer number of police personnel on the scene, using pepper

spray, using batons, anything but using the Taser.

I know Dr. Ross had several opinions when we started

this, many of them related to the Monell claim which is now

dismissed. We winnowed down his testimony to fit where the

case is. So that would be the synopsis of the proposed

testimony.

THE COURT: What's your response, Counsel?

MR. DeROSE: Yes, your Honor. Your Honor, many of the

things counsel raises now are matter of -- can be handled by

objections and also are -- what did you say?

(Counsel conferring.)

MR. DeROSE: They go to weight rather than the actual

admissibility. But, Judge, Dr. Layton -- Hayden, he's in

New -- he's in New Hampshire. And he has been the use-of-force

instructor, director of the FBI training academy for 11 years.

He is highly regarded. He testifies around the world,

in our country as a use-of-force expert. I will not ask him

any questions -- those were their questions of him, not mine.

My questions will be what is appropriate use of force

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and when is it not appropriate. That's all I'm going to stand.

I will ask my questions hopefully where they don't incur a lot

of objections from the defense.

But they never even tried to have a hearing before,

your Honor, to see if Dr. Hayden was, in fact, credentialed and

qualified to speak about which he testifies. And his

background says he's eminently qualified in this area about the

use of force and what is excessive force.

THE COURT: I don't think they're challenging his

use-of-force expertise; they're challenging its admissibility

under Daubert, which is appropriate for the pretrial because

that's when I do Daubert.

The Court's going to rule, grant in part and deny in

part Motion in Limine No. 15. But I want -- even though there

was no motion from the plaintiff regarding Darrell Ross, I

still have a gatekeeper function that I have to perform. So

this ruling applies to both your use-of-force experts on both

sides of the aisle. It's the same marching orders on both

sides, so listen up.

I am not going to permit the use-of-force experts to

testify as to legal opinions, whether or not the force applied

by the defendants was excessive, the import or meaning of any

specific police procedures or standards or the relative

culpability, state of mind or subjective impression of any

witness or party in the case.

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I will, however, allow the experts to testify on the

relevant factors to officers when deciding how much and what

type of force to apply -- in particular, the factors relevant

to the hypothetical uses of force -- without applying them to

this case. That is consistent with controlling Seventh Circuit

case law, and that's what our marching orders are going to be.

With respect to Defendant Motion in Limine No. 16,

this has to do with the economics expert. Do the parties want

to be heard on that?

MR. POLICK: Yes, your Honor. There were two items or

areas of damages that we were seeking to bar plaintiff's

economist from testifying to. The one I think your Honor has

ruled upon with regard to the damages that relate to the losses

of, for lack of a better word, the next of kin: the wife, the

girlfriend, the children.

Your Honor's made very clear that that is not going to

be allowed here, and therefore I believe that that item of

damages is now irrelevant to Mr. Smith's testimony and should

be barred.

The other item that we are looking at is an item of

damages called loss of enjoyment in life. It also goes by the

name hedonic damages, and we're seeking to bar that item of

damages under Rule 702 and Daubert because it is based on an

unreliable methodology that will not assist the jury.

The majority of Courts that have looked at Dr. Smith's

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testimony on this issue have concluded that his methodology is

not sound, and it doesn't pass muster under Rule 702. And

we're going back now to the Seventh Circuit's opinion in

Mercado v. Ahmed back in 1992 affirming the district court's

decision to exclude Smith's testimony and also Judge Shadur's

very thorough opinion in Ayers v. Robinson where he analyzes

the methodology used and concludes that it doesn't pass muster

under Daubert.

We admit that some Courts have gone the other way, but

we believe that the majority of the Courts that have looked at

Dr. Smith's methodology regarding the loss of enjoyment of life

have found it unreliable and therefore, if it's unreliable, not

helpful to the jury and it should be excluded.

THE COURT: What's your response, Counsel?

MR. DeROSE: Your Honor, Judge Cudahy in the Seventh

Circuit years earlier not only affirmed Judge Leighton when he

allowed Dr. Smith's testimony, but Judge Cudahy said he found

the testimony to be enlightening to the jurors.

But in any event, Judge, this is something --

THE COURT: That was a pre-Daubert case, right?

MR. DeROSE: I believe it might have been. 1988, yes,

I believe, Judge.

THE COURT: Yeah, okay.

MR. DeROSE: But Judge Cudahy, he was saying that the

jurors could find that useful. And if the defense wanted, the

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City wanted to have their own expert, they should have had

their own expert to say something different.

Now, I don't know where your Honor will come down on

this one, but several of your brothers and sisters on the bench

have said, "We'll let Dr. Smith testify about this, but we

won't let him put a dollar amount on it." You know, if your

Honor wants to put that limitation, I can understand that. But

I want to help this jury, as far as we are able, to arrive at a

fair and proper conclusion in the case.

And he is not only approved by judges across the

country -- I've got a list here that I've just given to your

Honor's clerk in Exhibit 115C of over 200 cases where he has

testified across the country, federal and state cases where he

has been helpful to juries in this situation.

THE COURT: Anything further on behalf of either

party?

MR. DeROSE: Not from me, Judge.

THE COURT: On behalf of the defendants, anything

else?

MR. POLICK: Again, just going back to the losses for

household and family services, again, I think those really

pertain to the wife, children and girlfriend. And your Honor

has ruled on that, so I believe those are now irrelevant

damages. Those are not damage that are personal to Mr. Lopez;

those are losses suffered by his family and should be excluded.

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I think the majority of the Courts that have reviewed

the methodology to be used with regard to hedonic damages, they

found the methodology to be unreliable. I don't know what

Mr. -- or Dr. Smith has testified in some of these other cases.

But the methodology itself is unreliable, and it's not helpful

to the jury and should be excluded.

THE COURT: All right. Motion in Limine -- Defense

Motion in Limine No. 16 will be granted. In light of the

issues that are pending, sort of the portion -- significant

portion of his proffered testimony is irrelevant -- the damages

resulting in loss of household, family services to his spouse

and children, for example -- which leaves essentially, in light

of the Court's other ruling, leaves the hedonic damages, which

based on the proffer and my review of the case law, certainly

there's some difference of an opinion. 

But I think under the facts of this case, I think the

plaintiff is going to have an evidentiary basis to get his

evidence in and argue it to the jury. And I don't know that

based on what I've seen of the proffer that it would withstand

a Daubert analysis in terms of the hedonic damages and the

methodology and analysis of the proffered expert would be

helpful to the jury.

They're fully capable of understanding the loss of

enjoyment of life. That's the very kind of thing that juries

decide all the time. So I don't believe it's helpful for the

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jury, and with the plaintiff having the burden of proof, he can

get the evidence in. 

And most of this testimony here can simply be the

subject of the underlying evidence being admitted and then the

counsel making effective closing argument, and the jury can

figure the rest out. I don't think the -- I'm going to

exercise my discretion and the appropriate -- apply the

appropriate standard under Daubert and exclude the witness.

Motion in Limine No. 16 is granted.

All right. Could we go to Motion in Limine No. 17.

Do you want to be heard on that, Counsel?

MR. POLICK: Yes, your Honor. Judge, what we're

seeking to do here is bar plaintiff from bringing up what are

really discovery issues in this case. There are three areas

that we reference here: dash cam video, the audio portion of

the 911 call, and the third would be any video from the Taser.

I'll start with the Taser first because it's the

easiest of the two to explain. During the course of discovery,

Mr. DeRose wanted us to produce any video from the Taser

itself. We did an inspection of the Taser that was used in

this case. There was no video or camera option on that

particular Taser. That option was never used by the Chicago

Police Department. And we, you know, made it clear to him that

no such video existed.

Similarly with the dash cam, great pains were taken to

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look at all the cars that were being used by the officers in

this case and determine whether or not there was any dash cam

video of our incident, and those results came back negative.

With regard to the audio from the 911 center, neither

side made a request at or near the time of the incident to

preserve this once the lawsuit was filed and requests were

begin -- began to be made. It was determined that that

particular tape had already been recycled and that no further

audio of the actual 911 was available.

So these were all matters that were brought up in the

discovery phase of the case. None of this audio or video

exists. And what we're trying to prevent the plaintiff from

doing is making these discovery issues focal points in this

trial. The prejudice I think he's going to suggest is that

these officers somehow manipulated these things and caused them

not to be captured on video or audio, and that's just not the

case here.

The fact of the matter is we did make a search for all

these items, and these -- this audio and video does not exist.

If plaintiff had an issue with that, the time to bring it -- to

have brought it up would have been during the course of

discovery on a motion to compel and ask your Honor at that

point.

He did not do that. We assumed he was satisfied with

the responses that we gave him. And they should not become an

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argument or a focal point of evidence in this particular case.

THE COURT: What's your response, Counsel?

MR. DeROSE: Judge, counsel is a gentleman. I never

once doubted him when he said, "We can't find any." That's not

the issue that we're talking about. When we talk about the

video, there was 24 cars in the 10th District -- there were

24 cars in the 10th District that night that all had video

cameras on. One of them was at the scene of my incident.

I'm going to question those items -- if your Honor

will allow me. I'm going to question those officers why they

didn't preserve any video. They can tell me, "Oh, we couldn't

find any." 

"Where was your car? Where was it facing?" 

You know, this -- this video evidence now is so

important in life. They had a car out there; they didn't

record it. Or if they did record it, they didn't preserve it,

and that's even worse.

And by the way, Judge, as you may already know, when

you turn on your Mars lights to go to a scene, your video

camera automatically goes on, and it has to be manually turned

off so it doesn't record anything. We've learned all of that.

We wanted to discuss that with them.

As far as the --

THE COURT: Well, have you already asked them that in

a deposition?

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MR. DeROSE: Oh, yes.

THE COURT: What was the answer?

MR. DeROSE: The answer was "Yes, if we turn on our

Mars lights, yes, the camera comes on. And then if we shut it

off, we have to tell them why we shut it off. We have to make

a report on that to command."

THE COURT: What was their response to that question?

MR. DeROSE: They have no such record, no such record

of him ever reporting that he shut off the video cam.

THE COURT: Well, a duty to preserve or even negligent

destruction is not by itself enough to get an adverse inference

instruction. So I'm trying to figure out what the relevance of

it would be in the absence of some bad faith. Did you get a

question and answer in deposition establishing that they shut

it off in bad faith?

MR. DeROSE: Judge, I'm not asking for an adverse

inference.

THE COURT: Well, you're arguing --

MR. DeROSE: I am only --

THE COURT: Hang on a second. Hang on a second. Hang

on. And I'm sorry -- sorry to interrupt, but sometimes I have

to.

But you're going to argue that. You're going to argue

where's the recording. And you have the burden of proof; they

don't. So you're basically arguing an adverse inference

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instruction: "Guess what, ladies and gentlemen. You know, the

reason that there's no video, because it would have shown X, Y

and Z for me." That's the only --

MR. DeROSE: I'm not going to argue about that.

THE COURT: Well, then what's the relevance if you're

not going to argue that?

MR. DeROSE: I'm going to -- I'm going to ask him,

"Did you turn on your Mars lights?" We know they all did

because they all came running when the officer said, "I need a

Taser here on the scene." 

So the other -- the next group that comes, they come

with their Mars equipment on. They preserve nothing. And I am

going to argue, if your Honor will allow me, that this is more

of the cover-up by these individual officers on the scene.

THE COURT: That's an adverse inference that you're

trying to draw. You're trying to say the reason there's no

video is because they did a cover-up. That's an adverse

inference.

MR. DeROSE: But I can argue it, can't I, Judge?

THE COURT: You can if you have the appropriate basis,

but you need bad faith. You can't just do duty to record and

even negligent destruction. You have to have more of a basis,

which is why I'm asking what the questions and answers were in

the deposition, to see whether or not you can establish the

bad-faith predicate to make that argument.

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Because if you can, all of those questions and answers

are relevant and admissible. But if you can't show bad faith,

negligent destruction is not enough for the inference. You can

ask them what happened, but you can't get into the ins and outs

of the video in the absence of some bad-faith predicate.

So did they tell you that they affirmatively shut it

off? What was the answer to the question? Because it sounds

like you were on it and you asked them. What did they say?

MR. DeROSE: Judge, I don't remember his exact -- they

don't remember if they had their video on or not is what I

remember them saying. What I do remember them saying is "We

don't even know which way our car was pointing. So we don't

know if we were limited to that 45 percent in front of our

squad or not. I don't know which street I was on with my car.

I don't know if my car was pointing where the man got tased or

not." Those kind of answers I got.

And, Judge, what I'm trying to say is I want to be

able to argue the inference that this is the ostrich defense:

"Look the other way. We know nothing. Don't preserve anything

you don't have to." 

I gave --

THE COURT: Oh, I understand the inference you want to

draw. I'm just trying to figure out if you have enough

inconsistent with the -- the showing that's required for it.

I'm going to grant Defendant Motion in Limine No. 17

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without prejudice. If you can establish a good-faith basis

that there was bad faith in the destruction or the failure to

take the video, then I'm going to allow questions and answers

regarding it.

But until I see some showing of bad faith -- and if

you can point me to something in discovery and submit it by

February 3rd, I'll take a look at it, and I will reverse my

ruling. 

But you need to have a showing. Simply having a duty

to record it and even negligent destruction of it is not enough

for the adverse inference, which is what you're asking for.

You're asking to argue it that way whether you get an

instruction or not on it. 

So you need to have a basis for that argument. And if

you've got it, I'm happy to let you make it, but I need to see

something. So go ahead and take a look at the discovery, but

at this point Defendants' Motion in Limine No. 17 is granted

without prejudice.

Do the parties want to be heard on the Defendant

Motion in Limine No. 18 regarding the day-in-the-life video?

MS. EKL: Yes, your Honor.

THE COURT: Okay. 

MS. EKL: Your Honor, we seek to bar what plaintiff

has called the video in the life of Jose Lopez. He describes

it in his response as simply focusing on a typical day when

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members of his family visit with him at GlenCrest Healthcare

and Rehabilitation Center.

We disagree with that characterization and seek to --

move to bar this particular video both on its relevance as well

as its extreme prejudice. First off, the video itself is

18 and a half minutes long. It contains music, which evokes

sympathy -- and I'm sure that that was the -- in the intended

purpose -- but to the extreme prejudice of the defendants in

this case.

There are a number of things within the video that are

not relevant to this case. It focuses in on some of the

machines related to plaintiff as he's laying in the bed. The

first three and 15 seconds -- three minutes and 15 seconds of

this video is basically a montage of Mr. Lopez with various

family members. I believe it's the family members and the

children that he has with his wife.

A number of the photos are repetitive. But it goes on

for three -- over three minutes. A lot of the photos appear to

be from when the children were a very young age and so

therefore do not seem to be very relevant to this recent time

period or the time period leading up to the incident.

After those photos are displayed for over three

minutes, there's one full minute of approximately five photos

that are just shown over and over of a particular point in time

when Mr. Lopez is shown in his bed in between two surgeries

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when a portion of his head -- his skull was depressed. These

are extremely inflammatory and prejudicial.

All of the photographs have also been identified

separately by plaintiff as exhibits, but he intends to play

them for a full minute with this music playing and the photos

flipping before the jury.

There are portions of the video that contain

statements by his wife in Spanish, and I'm not even quite sure

what those statements are or if some of the jurors will

understand them. There are statements by his daughter, such

as, "I know it hurts, but you have to keep going." There's no

foundation for whether or not she knows that what they're doing

to him hurts. I think those are gratuitous statements made

specifically so that the jury would believe that he was in

pain.

They also show Mr. Lopez on a ventilator. It's my

understanding that his condition has improved and that he's no

longer on a ventilator. In fact, today they were talking about

him being able to come here and understand what's going on. So

it doesn't show what Mr. Lopez' life is like today if that's

the case.

So for those reasons, it wouldn't be relevant. For

the obvious reasons -- the music, the displaying of Mr. Lopez

for 18 and a half minutes -- it would be extremely prejudicial

to defendants.

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They're going to hear testimony from during the --

during the second phase of the case in relation -- from doctors

about his condition. He has identified his girlfriend and his

wife, as well as all of his children, as potential witnesses

who I anticipate will come and testify about his condition. So

it will be cumulative in that respect.

For all those reasons, Judge, we'd ask that you bar

this video.

THE COURT: What's your response, Counsel?

MR. DeROSE: Judge, I'm sorry he's in the condition he

is in. I'm very sorry of it. But that's what we all have to

deal with. And any prejudicial effect of that is not of our

doing.

And, secondly, Judge, Mr. Lopez goes in and out of the

need for a ventilator. Last I heard, he didn't need a

ventilator. He could breathe on his own. But I don't know. I

might not be able to bring him in to his own trial because of

his condition at the time.

That video shows him as we pictured him on that day.

If your Honor wants me to cut out things that you think are

prejudicial, I'll cut them out. I've got my videographer

standing by to cut out anything you say shouldn't be in there.

But the jury's got to see him somewhere, somehow. This is his

case.

THE COURT: I have not had an opportunity to review it

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because I was on trial, so I'm going to take Motion in Limine

No. 18 under advisement. Regardless of the ruling on it,

though, you should have pictures ready as well in addition to

whatever else is happening. So --

MR. DeROSE: Judge, I didn't hear you. I should have?

THE COURT: The photographs. Make sure you have those

lined up. And before any of those are published, we should

take a look at those in terms of a 403 analysis to make sure

that if there's any disagreement about which ones those

might -- may or may not be admissible, I want to make sure that

we talk about that before anything's shown.

But in terms of the video itself, I actually have to

view the video. And I believe it's on You Tube now, right?

MR. DeROSE: Judge, I gave it to your clerk. I didn't

know it was, but it is.

THE COURT: Well, my understanding is it's on You Tube

for some reason; is that correct?

MR. DeROSE: That's how it was sent to me by the

videographer.

THE COURT: Is that a private You Tube site?

MR. CARONE: It's private.

THE COURT: Okay. Okay. All right. Well, I'm

relieved that it's private. I'll be able to look at it. I

just didn't have enough time because I was on trial.

MR. DeROSE: And, Judge, you have all the photographs

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I propose to use of evidence in your book of exhibits.

THE COURT: And there's some objections to some of

those, so --

MS. EKL: There is.

THE COURT: Yes, so don't publish those until we

figure out which ones are in or out or whatever 403 arguments

people want to make.

All right. But until I review the day-in-the-life

video, Motion in Limine No. 18 is taken under advisement. I'll

rule in minute -- in a written order from today because I'll

have an opportunity because my jury came back today, so I'll be

able to watch that tonight and get it out in the order

tomorrow.

Are there any other motions in limine that I have not

referred -- or the only other, I think there's a motion to

compel testimony from the mayor, which based on the Court's

motions in limine, that will be denied, which is Docket

Entry 159. In the absence of a proffer of relevant admissible

testimony, I'm not going to grant a motion to compel.

Any other motions in limine I did not address? I

think I got -- my notes say I did everything.

MS. EKL: I think you did, Judge.

THE COURT: Okay. 

MR. POLICK: Yes.

THE COURT: Anything -- 

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MR. POLICK: The contested ones, your Honor. There

were -- the parties did agree to some, and we've made that part

of the final pretrial order. There was a section there that

set forth as a result of our meet-and-confer certain things

that we agreed that --

THE COURT: Do you want me to go through those? I've

got the agreed list. Do you want me to do that?

The parties should take a look at the website

regarding the questions I ask in jury selection. As you can

tell from my protocol, I do the initial questioning, and then

the parties each have 15 minutes to each panel.

The questions the parties proposed, let me talk about

those as well.

The agreed motions in limine, the first one is to bar

any reference or mention to the jury any argument. That one I

already addressed.

No. 2 I addressed.

No. 3 I addressed.

I don't know if I addressed No. 4.

MR. DeROSE: I forget whether you --

THE COURT: No. 4 is -- and this is on page 91 of

Docket Entry 616, which is the proposed pretrial order -- not

to mention or reference any parties' trial preparation with

their attorneys. I know it's agreed, but I'm going to deny

that.

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You're allowed to say that people met with people in

advance, and there's an instruction saying that's totally

proper. But if someone wants to ask, "Did you meet with the

attorneys?" feel free to do so. But there's not -- I'm not

going to draw any sinister inference from it because that's

just good lawyering. And the jury's going to get an

instruction on that either way. So I'm not going to -- I'm not

going to enter that motion.

1, 2 and 3 I've already ruled on. So No. 4 is denied.

5 is plaintiff will not argue that defendants were not

diligent or failed to meet their discovery obligations. That

one -- I don't know if I have addressed that one, but that

one's going to be granted. Discovery obligations are not for

the jury. That's something if there is a problem, you go to

sidebar and take it up in the due course.

No. 6, to bar evidence or argument of other lawsuits

or other citizens' complaints against defendant or any

non-party witness. I have not addressed that, so I'm going to

grant that one, No. 6.

Agreed No. 7, to bar any evidence, argument or

reference to the Monell claims that have been dismissed. That

will be granted as agreed.

All of these are -- to the degree -- to the degree any

of these are being granted, they're being granted as agreed

because they're agreed motions.

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No. 8, to bar -- Agreed Motion No. 8, to bar any

evidence, argument or reference to plaintiff's claim against --

that was resolved on summary judgment. That one's granted.

No. 9 is going to be granted as agreed, which is

barring reference to defense counsel as City attorneys. Just

call them defense counsel. That's fine.

No. 10, to bar any -- Agreed 10, to bar any evidence,

argument or reference to any party or witnesses, religious

beliefs or opinions to attack their party -- that party's

credibility. That will be granted as agreed.

And No. 11, to bar any reference to the Taser as a gun

or a Taser gun. If that's what the parties want, I'll grant

that one as agreed as well.

That is the -- so I think that covers all the motions

in limine now, right?

MR. POLICK: Yes, your Honor.

THE COURT: Okay, great.

With respect to the questions, the phrase -- and

several of these questions I don't think you're going to be

getting into based on the motions in limine, so I don't think I

have to address the -- the propriety of the proposed questions.

Parties can object to the questioning by the attorneys if they

want. I allow the attorneys to ask questions, and if they're

in the proper format, I'll allow them. If they're not in the

proper format, I will sua sponte object to them myself.

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Normally the main issue comes up with the form of the

question, and as long as you tie it to their qualifications as

a juror or to explore an area that goes to the qualifications

of a juror, then you're going to be fine.

If you're trying to introduce facts and indoctrinate

the jury, that's obviously going to be a no-no. So if you

frame your question "Would that prevent you from being a fair

and impartial juror?" then usually you're not going to get an

objection from me if that's what you're directing yourself to.

So look at the phrasing of your questions and make

sure you're directing them to the relevant inquiry, which is

their ability to be a fair and impartial juror. Beyond that, I

don't think I need to get into the specifics.

MR. DeROSE: Can we ask your Honor -- can we ask your

Honor to follow up on your questions? If we get an answer, can

we go to sidebar and say, "Judge, will you follow up on that

because they said this"?

THE COURT: Well, you need to take a look at my

protocol because I let the lawyers ask questions, unlike

everybody else.

So what happens is -- I'll give you the Cliff Note

version, but then you've got to read on -- you've got the

written version. I'll put the whole venire in the room, two

panels of 14, so 28 people are in the room. I'll do the

general questions about "Do you know any of the witnesses?"

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Everyone gets to introduce themselves, all that.

Then the second panel goes downstairs so they can have

coffee and not listen to what the questioning. The panel of

14, the entire jury box, I asked from the very generic

questions that everybody asks anyway. I go through all of

those. 

And then you get 15 minutes for that panel of 14, and

then you get 15 minutes for that panel of 14. I actually time

it, so it's a hard 15. Most lawyers never use all of it, which

is amazing because in state court, people go on forever about

it. But they're just not used to doing it in this building,

and then they freeze up, I guess. I'm kidding.

But they -- but if there's a lot of objections, I'll

do kind of what's the soccer rule: I'll give you extra time if

they're, you know, running your clock long. That's never come

up either.

Then once both you have questioned and I've

questioned, then we go sidebar, and I go, "All right. Based on

all the questions, does anyone have anything else they want to

ask?" 

And then you go, "Well, Judge, could you follow up on

that one thing?" 

Then I'll ask questions until we get to the point

where everyone's exhausted in terms of questioning.

Then I excuse them to my jury room. We do the

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peremptories and the challenges for cause as to that whole box.

There's no backstriking. Once we deal with that 14, we're done

with them. Then I bring them back in. And whether it was for

cause or peremptory, they never know. I'll excuse those

people. And the people left in the box, I say, "Come back

tomorrow. You're my jury." And then I won't swear them until

tomorrow.

And then we bring up the second 14, do the same thing.

And then if we get 12, which normally I can with a

panel of 14 because you're both getting three peremptory

strikes -- you get three; you get three -- then we usually can

get 12. If we can't get 12, as I indicated at the beginning of

the pretrial conference, then we can -- I'll ask: "Well, we've

got 10. We've got 11. Do you guys want to go with that?" And

absent an objection, that's what we'll do. 

But if you guys object and you want another panel,

that will push the trial back a day. And I'll bring -- because

I will only order up two panels of 14. Okay?

MR. DeROSE: All right, Judge.

THE COURT: So you get to ask questions. You'll have

more time than you need.

But just direct the questions to their qualifications

as a juror. Don't try to indoctrinate or anything like that.

MR. DeROSE: Very rusty on that, Judge. It's been a

few years.

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THE COURT: I have every confidence in you, Counsel.

Okay. Anything I've forgotten to address?

MR. POLICK: Just a couple of logistical questions,

your Honor.

THE COURT: Yeah.

MR. POLICK: We obviously have a lot of defendants.

Would we be permitted to use the extra table here to --

THE COURT: Absolutely.

MR. POLICK: -- sit our people? I don't think we're

all going to fit at one table.

THE COURT: No, absolutely. I assumed you'd be doing

that. And if you need another table, let me know.

MR. POLICK: Okay. I think -- 

THE COURT: I'll give you another table. The people,

I won't force them to the -- to those other things. I can get

another table and chairs in if you need.

MR. DeROSE: Judge, can we bring our boxes of evidence

in on Friday so Monday I can look pretty when I arrive?

THE COURT: Yes, you can. You have to make

arrangements with Gloria. Don't put anything valuable in it

like a laptop because I can't -- we're not creating a bailment

here. So if -- but no one's going to mess with your boxes.

You can put them on the front bench if that's convenient.

The only thing is you want to make sure that you're

not creating a sightline problem or creating a problem for when

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the jurors walk because I put -- during jury selection, the

gallery to that side is going to have jurors in it. So if

you're going to have boxes, you want to put them on that side

for jury selection.

MR. DeROSE: Can we put them in the cloakroom, Judge? 

THE COURT: No, no.

MR. DeROSE: Can we just -- could we put three -- I

think we've got three or four boxes. I'm not going to bring

all of them.

THE COURT: All right. Then just put them all the way

to the side of the wall so we have room for the jurors to sit

during selection because the jurors sit in those -- that part

of the gallery. It's kind of the -- that side, my right.

MR. POLICK: We're just trying to envision our

headcount here and whether we're going to need another table.

THE COURT: Well, decide and let my courtroom deputy

know with enough notice because we would have to find it. And,

you know, unfortunately, I can't just ask my clerks to move

furniture because that's apparently a union job. So I've asked

them to move that in the past, and they got in trouble. So --

and I had to fall on my sword, saying that I ordered them to

get me a table, and then it was a big issue.

He's smiling. So but let me know with enough advance

that I can have somebody bring another table in if you want.

MR. POLICK: Okay. 

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Just in terms of your courtroom ground rules, are we

confined to the podium, or are we allowed to --

THE COURT: No. You can wander all you want, but you

have to be heard. So that means you either wear a body mic, or

you keep your voice up. If you don't do either, then I'll tie

you to the -- to your -- to the podium.

MR. POLICK: Okay. Is it all right, if one attorney

is up there, if another attorney approaches the podium to hand

a note or --

THE COURT: That's totally fine.

MR. POLICK: Okay. 

THE COURT: Totally fine.

MR. POLICK: And I assume --

THE COURT: And sometimes one person has one person

working the laptop and then the other person is there. That's

up to you guys, too.

MR. POLICK: Okay. I'm just going down this list

because some of your colleagues here have very strict rules

about some of this stuff. I'm assuming get the Court's

permission before we approach a witness.

THE COURT: Yeah, sure. I always say yes.

MR. POLICK: Okay.

THE COURT: I don't think I've ever said no on that.

MR. POLICK: Okay. I think that about covers it for

that.

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THE COURT: And then you -- obviously, it doesn't

apply to you, sir. But generally if you're talking, you need

to stand up because the court reporter needs to know who's

talking. She'll get more familiar with your voices as we go,

but if someone's just sitting and talking, she's not going to

be able to catch who it is. So just get in the habit of

standing when you -- when you're speaking, you're standing. 

Okay. All right. Well, have a great weekend. I look

forward to whatever you're going to send me on the 3rd at noon,

and I will see you for -- how much -- it's not next week; it's

the week after, right?

MR. POLICK: Right, the 6th.

THE COURT: Yeah, the 6th. 

All right. Great. Thank you, Counsel.

MR. POLICK: Thank you, your Honor. 

MS. EKL: Thank you, your Honor. 

MR. DeROSE: Thank you, your Honor.

(Concluded at 4:25 p.m.)

C E R T I F I C A T E 

I certify that the foregoing is a correct transcript of the 

record of proceedings in the above-entitled matter. 

/s/ LISA H. BREITER___________________ February 3, 2017

LISA H. BREITER, CSR, RMR, CRR 

Official Court Reporter 

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