UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARION MERRITT-RUTH,

Plaintiff,

v.

OFFICER SUSAN FREY-LATTA AND

OFFICER THOMAS BLAIR, 

Defendants.

 /

Case No. 14-12858

Honorable Nancy G. Edmunds

ORDER DENYING DEFENDANTS' MOTION IN LIMINE TO EXCLUDE

IMPERMISSIBLE DAMAGE CLAIMS, TESTIMONY, AND ARGUMENT [123]

This case arises from the death of Sidney Gurley, who was incarcerated at the Gus

Harrison Correctional Facility in Adrian, Michigan when he passed away from acute

peritonitis caused by a ruptured appendix. The only remaining claims in this case rest on

allegations that Officers Susan Frey-Latta and Thomas Blair violated Gurley’s Eighth

Amendment protection against cruel and unusual punishment through their deliberate

indifference to Gurley’s serious medical needs. This matter is now before the Court on

Defendants' Motion in Limine to Exclude Impermissible Damage Claims, Testimony, and

Argument (Dkt. # 123). For the reasons stated below, this Court DENIES Defendants’

motion.

Defendants’ motion seeks to preclude Plaintiff from calling family members to testify

and from introducing evidence regarding emotional feelings or losses of family members

or others, including the following exhibits proposed by Plaintiff: photographs of Gurley with

his family, Gurley’s funeral program, and family memorabilia. Defendants argue that such
evidence would suggest to the jury that they should include damages which are

impermissible in an action brought under 42 U.S.C. § 1983. Citing Blair v. Harris, 993 F.

Supp. 2d 721 (E.D. Mich. 2014), Defendants argue that Plaintiff may only recover for

conscious pain and suffering by Gurley between the time of injury and death---not for loss

of enjoyment, post-death loss, loss of companionship, emotional distress, loss of financial

support, or loss of society. 

Citing Robertson v. Wegmann, 436 U.S. 584 (1978), Plaintiff responds that the

Supreme Court has specifically allowed survivors to sue for injury to their own interest if

allowed by state law. Plaintiffs further argue that Sixth Circuit precedent requires

acceptance of Michigan’s wrongful death statute, which provides recovery for a victim as

well as for the victim’s estate and survivors as an appropriate damage remedy in section

1983 cases, citing Frontier Ins. Co. v. Blaty, 454 F.3d 590 (6th Cir. 2006). 

Plaintiff brings this action under 42 U.S.C. § 1983 in her capacity as personal

representative of Gurley's estate. Section 1983 provides no guidance for how to evaluate

damages; however, if section 1983 is 

deficient in the provisions necessary to furnish suitable remedies and punish

offenses against law, the common law, as modified and changed by the

constitution and statutes of the State wherein the court having jurisdiction of

such civil or criminal cause is held, so far as the same is not inconsistent with

the Constitution and laws of the United States, shall be extended to and govern

the said courts in the trial and disposition of the cause.

42 U.S.C. § 1988. See Robertson, 436 U.S. at 588-89. The Supreme Court has

recognized that survivors suing under section 1983 "for injury to their own interests" may

recover damages when allowed by state law. Id. at 592, n.9. 

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In this case, the Court must apply Michigan's civil damages laws. Michigan's wrongful

death statute provides as follows.

[T]he court or jury may award damages as the court or jury shall consider fair

and equitable, under all the circumstances including [1] reasonable medical,

hospital, funeral, and burial expenses for which the estate is liable; [2]

reasonable compensation for the pain and suffering, while conscious,

undergone by the deceased during the period intervening between the time of

the injury and death; and [3] damages for the loss of financial support and the

loss of the society and companionship of the deceased.

Mich. Comp. Laws § 600.2922(6). "Michigan's wrongful death statute is a derivative one

whereby the personal representative of the deceased stands in the latter's shoes." Blaty,

454 F.3d at 600.

The Sixth Circuit has instructed that courts "should not disturb a state remedy unless

it is clear that such remedy is wholly inconsistent with the Constitution and the goals of

section 1983." Id. at 603. In Blaty, the court found that "Michigan's wrongful death act is

consistent with the compensatory purpose of section 1983 identified by the Supreme

Court." Id. at 601. The court further stated that Michigan's wrongful death statute

"authorizes an award of damages for survivors' losses of support, society, and

companionship," which is consistent with the deterrent purpose of section 1983. Id. The

Court therefore concludes that Gurley's estate may recover the full extent of damages

available under Michigan's wrongful death statute.

As did the district court in Warren v. Shilling, No. 2:12-CV-13, 2015 WL 1726787, at

*3 (W.D. Mich. Apr. 15, 2015), this Court declines to follow Defendants' citation to Blair v.

Harris, 993 F. Supp. 2d 721, 731 (E.D. Mich. 2014). The court in Blair relied primarily on

Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 1984), and on Claybrook v. Birchwell, 199 F.3d

350, 355 (6th Cir. 2000). However, while both Jaco and Claybrook establish that a state

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remedy for a section 1983 violation must provide recovery to the victim himself, neither

case limits a state remedy such that survivors are precluded from recovery. See Warren,

2015 WL 1726787, at *4. In Jaco, the Sixth Circuit analyzed Ohio's wrongful death statute,

which unlike Michigan's wrongful death statute, provided no remedy for the personal injury

suffered by the victim himself. 739 F.2d at 242-43. Accordingly, the court found that the

Ohio statute was irreconcilable with 42 U.S.C. § 1988. Id. at 244-45; Blaty, 454 F.3d at

603. In this case, Michigan's wrongful death statute provides recovery for the victim as well

as the victim's estate and survivors, and there is no reason to disturb the state remedy. 

See Blaty, 454 F.3d at 603. In Claybrook, the court held that section 1983 did not create

an independent cause of action for survivors. 199 F.3d at 357. The court found that a

complaint survived dismissal where the plaintiffs had adequately requested compensation

for the victim's alleged constitutional injuries in their representative capacities as coadministrators of his estate. Id. Likewise, in this case, Plaintiff appropriately seeks

damages in her representative capacity. Claybrook does not bar a victim's survivors from

recovering damages allowed by state law.

Accordingly, the Court rejects Defendants' argument and DENIES Defendants’ Motion

in Limine to Exclude Impermissible Damage Claims, Testimony, and Argument (Dkt. #

123). 

SO ORDERED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: November 7, 2017

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I hereby certify that a copy of the foregoing document was served upon counsel of record

on November 7, 2017, by electronic and/or ordinary mail.

s/Carol J. Bethel 

Case Manager

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