1 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TIMOTHY DAVIS, : 

 : 

Plaintiff, : Case No. 2:17-cv-0823 

 : 

 v. : Chief Judge Algenon L. Marbley 

 : 

CITY OF COLUMBUS, OHIO, et al., : Magistrate Judge Chelsey M. Vascura 

 : 

Defendants. : 

 

OPINION & ORDER 

This matter is before the Court on Plaintiff’s and Defendants’ Motions in Limine (ECF 

Nos. 103, 100). For the reasons set forth below, Plaintiff’s first Motion is GRANTED IN PART, 

Plaintiff’s fourth Motion is HELD IN ABEYANCE, and all other Motions are DENIED. 

I. APPLICABLE LAW 

A. Motions in Limine 

 The purpose of motions in limine is “to narrow the issues remaining for trial and to 

minimize disruptions at trial.” United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999). 

“Whether or not to grant a motion in limine falls within the sound discretion of the trial court.” 

Delay, 2012 WL 5878873, at *2. The guiding principle is to “ensure evenhanded and expeditious 

management of trials.” Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio July 

16, 2004). 

 Courts should “exclude evidence on a motion in limine only when that evidence is 

determined to be clearly inadmissible on all potential grounds.” Delay v. Rosenthal Collins Grp., 

LLC, 2012 WL 5878873, at *2 (S.D. Ohio Nov. 21, 2012). Thus, “[w]hen a court is unable to 

determine whether or not certain evidence is clearly inadmissible, evidentiary rulings should be 

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deferred until trial so that questions of foundation, relevancy and potential prejudice can be 

resolved in the proper context.” Id. 

 “Orders in limine which exclude broad categories of evidence should seldom be employed. 

A better practice is to deal with questions of admissibility as they arise.” Sperberg v. Goodyear 

Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975); see also Morrison v. Stephenson, 2008 WL 

343176, at *1 (S.D. Ohio Feb. 5, 2008) (“Courts . . . are generally reluctant to grant broad 

exclusions of evidence in limine, because a court is almost always better situated during the actual 

trial to assess the value and utility of evidence.”) (internal quotation marks omitted). 

B. Rules of Evidence 

Together, the parties’ Motions implicate the Federal Rules of Evidence on relevance (Rules 

401, 402, 403), expert witnesses (Rules 702, 704), and character evidence (Rules 404, 609). 

 The relevance rules provide that evidence is relevant, and thus generally admissible, if it 

has “any tendency” to make a “fact . . . of consequence in determining the action” “more or less 

probable than it would be without the evidence.” Fed. R. Evid. 401, 402. Relevant evidence may 

be excluded, however, if the court determines that “its probative value is substantially outweighed 

by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 

 Expert witnesses generally can testify in the form of an opinion if it is “based on sufficient 

facts or data” and “is the product of reliable principles and methods . . . reliably applied.” Fed. R. 

Evid. 702. Opinion testimony by an expert is “not objectionable just because it embraces an 

ultimate issue,” provided that it stops short of giving legal conclusions. Fed. R. Evid. 704(a). 

The rules on character evidence bar its use for propensity—that is, “to prove that on a 

particular occasion the person acted in accordance with the character or trait.” Fed. R. Evid. 

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404(a)(1). The same holds true for prior crimes, wrongs, or bad acts; however, such evidence is 

admissible for other purposes not related to propensity. Fed. R. Evid. 404(b). One such purpose is 

impeachment, governed by Rule 609. Rule 609 states that a conviction of a crime punishable by 

more than one year’s imprisonment “must be admitted, subject to Rule 403, in a civil case . . . .” 

Fed. R. Evid. 609(a)(1)(A). Any conviction “must be admitted,” regardless of the term of 

punishment, if “the elements of the crime required proving . . . a dishonest act or false statement.” 

Fed. R. Evid. 609(a)(2). A limiting principle “applies if more than 10 years have passed since the 

witness’s conviction or release from confinement for it, whichever is later,” in which case the 

probative value of the conviction must substantially outweigh the prejudicial effect. Fed. R. Evid. 

609(b). 

II. ANALYSIS 

A. Plaintiff’s Motions in Limine 

Plaintiff submitted four Motions in Limine (ECF No. 103). For the reasons that follow, 

Plaintiff’s first Motion is GRANTED IN PART, the fourth Motion is HELD IN ABEYANCE, 

and the remaining Motions are DENIED. 

1. To Preclude Evidence, Argument, or Testimony Concerning Prior Criminal History, Arrests, 

Bad Acts, and Prior Police Encounters of Timothy Davis 

Plaintiff first asks the Court to preclude Defendants from raising evidence of his criminal 

history, arrests, bad acts, and police encounters, which Plaintiff argues would be barred under 

Rules 404(b), 609, 402, and 403. (ECF No. 103 at 1–5). The prior bad acts include three incidents 

allegedly involving violent flight or failure to comply with an arrest, aggravated robbery and 

kidnapping charges to which Plaintiff pled guilty in 2006, a marijuana ticket in 2006, and assault 

and disorderly conduct charges that were dismissed in 2007. (Id. at 2–4). 

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As an initial matter, the incidents underlying the outstanding warrants that occasioned 

Plaintiff’s arrest at the Livingston Market all are relevant to the Officers’ threat assessment. Those 

incidents, of which the Officers were aware, placed Plaintiff on the Violent Crime Working 

Group’s “wanted list” and informed the Officers’ choice of strategy to effect the arrest. As 

Defendants correctly note, the reasonableness of force must be evaluated objectively in view of 

the particular facts and circumstances. (ECF No. 110 at 1–2, citing Graham v. Connor, 490 U.S. 

386 (1989); and Tennessee v. Garner, 471 U.S. 1 (1985)). As the Sixth Circuit recently held in 

United States v. Emmons, “evidence of other crimes, wrongs, or acts” is admissible if it “is not 

used merely to show propensity and if it bears upon a relevant issue in the case.” 8 F. 4th 454 (6th 

Cir. 2021) (internal quotation marks omitted). Relevant issues in this case necessarily include the 

Officers’ knowledge of Plaintiff’s prior interactions with law enforcement, which came in part 

from the warrants. Accordingly, testimony about the warrants and the incidents underlying them 

is admissible. However, the resolution of those incidents (i.e., the pleas, verdicts, or dismissals) do 

not bear on knowledge because they occurred subsequent to the arrest. These cannot come in 

substantively. 

Regarding impeachment, the Court determines that most of Plaintiff’s criminal history is 

off-limits under Rules 609 and 403. The guilty pleas involving violent flight or failure to comply 

very closely resemble the facts of this case and thus carry an extreme risk of prejudice. Their 

probative value, meanwhile, is low; they bear only upon Plaintiff’s propensity to resist arrest. 

Consequently, these pleas are barred by Rule 403. The marijuana ticket was neither a felony nor a 

crime involving a dishonest act or false statement, so Rule 609 does not contemplate its admission. 

The assault and disorderly conduct charges likewise are inadmissible because they were dismissed 

in 2007 without a conviction. As for the aggravated robbery and kidnapping, to which Plaintiff 

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pled guilty in 2006, the risk of undue prejudice is weaker since it does not involve fleeing or 

resisting arrest. Consequently, Rule 403 does not compel its exclusion. Moreover, the release from 

confinement occurred less than ten years ago, so it is not subject to the heightened standard of Rule 

609(b). (ECF No. 110-1). Impeachment is permissible on this charge. 

To summarize, Plaintiff’s Motion is GRANTED IN PART and DENIED IN PART. 

Defendants may introduce evidence of the warrants and the incidents underlying them that were 

known to the Officers when they effectuated the arrest. Defendants may not introduce evidence of 

any guilty pleas resulting from those warrants, whether for impeachment or otherwise. The only 

criminal history available for impeachment is the plea to aggravated robbery and kidnapping from 

2006. Limiting instructions will be necessary to ensure that the jury considers Plaintiff’s criminal 

history only for the permissible purposes of knowledge and impeachment—not for character or 

propensity. 

2. To Preclude Expert Report and Trial Testimony of Defendants’ Expert Patrick Vehr 

Next, Plaintiff asks the Court to preclude Defendants from presenting the expert testimony 

of Patrick Vehr pursuant to Rule 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 

(1993) . (ECF No. 103 at 6–11). Plaintiff advances the following defects in Vehr’s report: (1) Vehr 

possessed an insufficient foundation for his opinion because he neglected to review the depositions 

and instead accepted the use-of-force investigations as true (Id. at 6–9); (2) Vehr relied on certain 

studies on “Action vs Reaction” that are inapplicable to Plaintiff’s arrest and beyond the scope of 

Vehr’s expertise (Id. at 9–10); and (3) Vehr opined on legal issues that are properly decided by the 

jury (Id. at 10). 

 In response, Defendants first emphasize that Vehr did review “every use of force report, 

chain of command investigation, Internal Affairs investigation and videos of the Arrest.” (ECF 

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No. 110 at 10). Vehr’s neglect of the depositions may undercut the weight of his opinion, but it is 

not rendered “mere guess or speculation” devoid of any “reasonable factual basis.” United States 

v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993) (internal quotation marks omitted). Plaintiff 

has identified a legitimate ground for cross examination, but not for exclusion. 

The “Action vs Reaction” studies are included in Vehr’s section on training. Quoting the 

expert report, Defendants note that “Action vs Reaction” and the related “reactionary gap” 

principle “weigh heavily on all aspects of defensive tactics training,” including “intermediate

weapons” short of lethal force. (ECF No. 110 at 11). Because the adequacy of Defendants’ taser 

training is at issue in Plaintiff’s Monell claims against the City, the content of that training is 

relevant and applicable. It also is within Vehr’s expertise in defensive tactics training. 

 Lastly, under Rule 704, an expert opinion is “not objectionable just because it embraces 

an ultimate issue.” Fed. R. Evid. 704(a). Vehr’s report concludes that the Officers’ conduct was 

“both reasonable under the circumstances and consistent with generally accepted national law 

enforcement guidelines, training, and best practices.” (ECF No. 110 at 11, quoting Vehr Rep.). It 

does not, however, assert that the force used was or was not excessive. That legal conclusion 

remains with the jury, as it must. Accordingly, Plaintiff’s second Motion is DENIED. Vehr may 

testify regarding the contents and conclusions of his report. 

3. To Bar Inadmissible Opinion Testimony and Evidence (Sergeants Van Dop and Johnson) 

Plaintiff additionally asks the Court to preclude Defendants from offering opinion evidence 

on the use-of-force investigations conducted by Sergeants Van Dop and Johnson, which 

exonerated the Officers of all wrongdoing. (ECF No. 103 at 11–13). Plaintiff notes that Sergeants 

Van Dop and Johnson have not been identified as experts and argues that admitting their findings 

would circumvent the rules on expert disclosure. (Id.). 

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Defendants agree that Sergeants Van Dop and Johnson are not offered as experts but rather 

will be called to testify about their personal role in the events at issue. (ECF No. 110 at 13–15). 

Plaintiff’s Monell claims challenge the adequacy of the City’s use-of-force investigations, which 

places the investigations and their findings directly at issue. There is a meaningful difference 

between the factual testimony that Sergeants Van Dop and Johnson would offer, which runs to the 

events at issue, and the expert testimony that Vehr would offer, which opines on the case as a 

whole from the perspective of an external evaluator. Cf. Jones v. Pramstaller, 2013 WL 12249827, 

at *1 (W.D. Mich. Jan. 14, 2013) (witness who “played a personal role in the unfolding of the 

events at issue” was not subject to expert disclosure rules when testifying to those events, 

notwithstanding any specialized knowledge held). Thus, Sergeants Van Dop and Johnson may 

testify regarding their investigations and conclusions without being transformed from fact 

witnesses to opinion witnesses. 

Also of note, the expert disclosure rules cited by Plaintiff—Federal Rules of Civil 

Procedure 26(a)(1) and (2)—are intended to ensure that the opposing party has an opportunity to 

challenge the expert opinion, whether through a deposition, rebuttal expert, or otherwise. Cf. 

Musser v. Gentiva Health Servs., 356 F.3d 751, 757–58 (7th Cir. 2004). Here, the conclusions 

expressed in the use-of-force investigations have been known to Plaintiff from the outset of the 

case, and Plaintiff has prepared a thorough challenge to their legitimacy. A key assertion in 

Plaintiff’s Monell claims against the City is that the investigations were perfunctory and wrong. 

To evaluate this claim fairly, the jury will need to hear full and complete testimony concerning the 

investigations. Plaintiff’s third Motion therefore is DENIED. 

4. To Bar Inadmissible Opinion Testimony and Evidence (Awards and Commendations) 

Finally, Plaintiff seeks to preclude evidence of awards or commendations given to the 

Officers, which Plaintiff argues would contravene the rules on relevance and character evidence. 

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(ECF No. 103 at 13–14). Defendants respond that such evidence would be offered for “the efficacy 

of Defendant’s training program and policies” and as “[p]roof that the Defendant Officers 

adequately performed their duties and were noticed for their success.” (ECF No. 110 at 15). 

Insofar as the awards or commendations relate to the proper use of force and represent 

objective or external judgments of efficacy, Defendants might have a legitimate, admissible 

purpose for the evidence. General awards or commendations, however, would serve only to bolster 

Defendants’ credibility and character and would not bear upon the adequacy of use-of-force 

training. The same is true of self-adulation given by Defendants unto themselves (i.e., CPD’s 

commendation of an Officer). Because the admissibility of this evidence is context-dependent, the 

prudent course is to assess questions of admissibility as they arise at trial. Plaintiff’s final Motion 

therefore will be HELD IN ABEYANCE. 

B. Defendants’ Motions in Limine 

Defendants submitted five Motions in Limine (ECF No. 100). For the reasons that follow, 

Defendants’ Motions are DENIED. 

1. To Exclude Evidence, Testimony, or Statements on Issues Pertaining to Medical Assistance 

and Care 

Defendants’ first Motion in Limine seeks to exclude evidence of the medical assistance 

and care given or denied to Plaintiff following his arrest. (ECF No. 100 at 3–4). Defendants note 

that all claims regarding denial of medical care were dismissed by stipulation (ECF No. 64) and 

argue that the evidence “is irrelevant, unfairly prejudicial, and confusing to the jury.” (ECF No. 

100 at 3). 

However, evidence regarding medical care is independently relevant to Plaintiff’s 

remaining claims. Plaintiff identified at least two relevant bases in his response. First, the evidence 

shows the extent of Plaintiff’s injuries, which in turn bears upon the level of force used and the 

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reasonableness thereof. Additionally, the evidence runs to alleged damages, as it is probative of 

the pain and suffering Plaintiff experienced during the arrest. (ECF No. 112 at 1–3). 

Because Plaintiff has identified a legitimate, admissible ground for the medical care 

evidence, Defendants’ first Motion is DENIED. To the extent Defendants are concerned about 

misleading the jury regarding the denial-of-care claim, their remedy lies in careful jury 

instructions, not in limine. 

2. To Exclude Evidence, Testimony, or Statements on Plaintiff’s Dismissed Claims Against 

Joseph Bogard 

Defendants’ second Motion also concerns claims that the parties dismissed by stipulation: 

those against Officer Joseph Bogard. (ECF No. 100 at 4–5). Officer Bogard was not present during 

the arrest itself; however, his body camera recorded footage of the immediate aftermath, including 

his interactions with other arresting Officers and with Plaintiff. Officer Bogard’s verbal conduct, 

captured in this footage, resulted in disciplinary proceedings against him. Defendants argue that 

any inquiry into Officer Bogard would be “irrelevant, unfairly prejudicial, and confusing to the 

jury.” (ECF No. 100 at 4). 

Similar to the medical care analysis above, the evidence to which Defendants object has 

relevance independent of any claims against Officer Bogard. Plaintiff intends to introduce the 

footage as evidence of the factual circumstances of the arrest, the physical and psychological 

injuries Plaintiff sustained, and the customs and culture of CPD and its Violent Crime Working 

Group. (ECF No. 112 at 3–6). All of these are legitimate bases for the evidence. The body camera 

footage is relevant for what it depicts, not for whose perspective it captured. On the other hand, 

the disciplinary proceedings are relevant to Plaintiff’s Monell claims against the City, including 

the “ratification” and “custom” theories. Therefore, Defendants’ second Motion is DENIED.

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3. To Exclude Evidence, Testimony, or Statements on Plaintiff’s Dismissed Claims Against Frank 

Lemak 

Defendants’ third Motion closely tracks their second, seeking to exclude evidence of the 

dismissed claims against Officer Frank Lemak. (ECF No. 100 at 5–6). Again, Plaintiff has 

identified several independent bases for relevance. Officer Lemak’s verbal interaction following 

the arrest prompted Plaintiff to make statements regarding his injuries, which were captured in 

body camera footage. Moreover, Officer Lemak’s alleged role in the disciplinary proceedings 

offers a concrete example of the systemic defects Plaintiff argues in his Monell claim. (ECF No. 

112 at 6–8). Plaintiff represents that he will not adduce any evidence related to the “failure to 

intervene” claim, which Plaintiff brought against Officer Lemak only. (Id. at 8). Thus, Defendants’ 

third Motion is DENIED for the same reasons as their second. 

4. To Exclude Evidence, Testimony, or Statements on Other Incidents Involving the Defendant 

Officers 

Defendants’ fourth Motion asks the Court to exclude “any other uses of force by the 

Defendant Officers, or any other lawsuits, complaints, investigations, discipline, or incidents other 

than the one at issue.” (ECF No. 100 at 6). Defendants argue that such evidence would amount to 

argument by propensity, in violation of Rule 404(b). 

While Defendants are correct that such prior incidents cannot be used to suggest that the 

Officers used excessive force against Plaintiff, they overlook the relevance to Plaintiff’s Monell 

claims against the City. As Plaintiff notes in his response, prior incidents are relevant to showing 

notice, approval, or deliberate indifference under the “ratification” or “custom” theories. (ECF No. 

112 at 8–10). Indeed, this Court relied on the disciplinary history of several arresting Officers as 

part of its reasoning to sustain Plaintiff’s Monell claims on summary judgment. (ECF No. 91 at 

12–13, 19–20). 

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Defendants’ concern about propensity evidence against the Officers should be addressed 

through jury instructions. Plaintiff has identified non-propensity grounds to introduce the evidence 

of other use-of-force lawsuits, complaints, investigations, discipline, or incidents. There being a 

legitimate and admissible basis for the evidence, Defendants’ fourth Motion is DENIED. 

5. To Exclude Witnesses and Exhibits Not Timely Disclosed or Exchanged 

Defendants’ final Motion seeks to prevent Plaintiff from using witnesses or exhibits not 

timely exchanged in accordance with the Court’s trial order. (ECF No. 100 at 7). This Motion 

appears solely proactive, as it does not identify any specific untimely witnesses or exhibits that 

Defendants are anticipating. For his part, Plaintiff agrees that any supplements to the witness or 

exhibit lists would need to comport with the trial order and the Federal Rules of Evidence. (ECF 

No. 112 at 10–11). Rather than rule on this hypothetical issue, the Court determines that the more 

prudent course is to resolve any timeliness objections in the context of specific witnesses or 

evidence. Accordingly, Defendants’ final Motion is DENIED at this juncture. 

III. CONCLUSION 

For the reasons stated herein, Plaintiff’s Motions in Limine (ECF No. 103) are GRANTED 

IN PART as to the first Motion, HELD IN ABEYANCE as to the fourth Motion, and DENIED

as to the remaining Motions. Defendants’ Motions in Limine (ECF No. 100) are DENIED. 

IT IS SO ORDERED. 

 ________________ ________ 

 ALGENON L. MARBLEY 

 CHIEF UNITED STATES DISTRICT JUDGE

DATED: December 2, 2021 

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