1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DARRYLL JOEL McKENZIE,

Plaintiff,

vs.

WALTER McNEIL, et al.,

Defendants.

Case No. 4:11-cv-45-RH-WCS

PLAINTIFF’S FIRST MOTION IN LIMINE

COMES NOW the Plaintiff, DARRYLL McKENZIE, by and through the 

undersigned attorney, and requests this Honorable Court enter an Order before 

selection of the jury, instructing the Defendants, their attorneys and witnesses, not to 

directly or indirectly mention, refer to, interrogate concerning, or attempt to convey to 

the jury in any manner any of the facts indicated below without first obtaining the 

permission of the court outside the presence and hearing of the jury and further 

instructing the defense attorney to warn and caution his clients and each and every

witness to strictly follow any order entered by the court in connection with this 

Motion. This Motion in Limine encompasses the following items:

I. National Institute of Justice Article on Oleoresin Capsicum

Defendants wish to show to the Jury an article from the U.S. Department of 

Justice National Institute of Justice that purports to “[d]ispel myths and provide 

objective information to help make informed purchasing decisions” and “[p]rovide 

Case 4:11-cv-00045-RH-CAS Document 64 Filed 02/24/12 Page 1 of 3
2

names, addresses, and phone numbers of OC manufacturers and other relevant 

sources of information.” The main point of the article seems to be to minimize the 

harmful effects of Oleoresin Capsicum and to encourage its use.

The U.S. Department of Justice is a user of Oleoresin Capsicum a.k.a. “pepper 

spray” both in on-the-street law enforcement activities and in prison settings, through 

its Bureau of Prisons that runs the federal prison system in the United States. 

Through its facilities and employees, the U.S. Department of Justice is involved in 

litigation challenging the use of pepper spray as cruel and unusual punishment. See 

Halsey v. Acker, 2012 WL 463699 (S.D. Ga. 2012), Case No. CV212-031. USDOJ 

wishes to continue to use pepper spray and has an interest in the outcome of litigation 

on this matter. Thus, the indicia of trustworthiness is lacking from its articles on the 

use of that substance. Plaintiff objects to the article.

II. Testimony by Drs. Render and Hoang

Plaintiff is concerned that Drs. Render and Hoang will go beyond any role they

may have had as treating doctors and express opinions that are, in effect, expert 

testimony by an undeclared expert. Plaintiff asks that such testimony be excluded and 

that the witnesses be instructed in advance to limit their testimony to issues involving 

treatment of Darryll McKenzie.

WHEREFORE, the undersigned attorneys move the Court to exclude the 

above matters from evidence and argument at trial.

Case 4:11-cv-00045-RH-CAS Document 64 Filed 02/24/12 Page 2 of 3
3

Respectfully Submitted,

s/James V. Cook______________________

JAMES V. COOK, ESQ.

Florida Bar Number 0966843

Law Office of James Cook

314 West Jefferson Street

Tallahassee, Florida 32301

(850) 222-8080; 561-0836 fax

cookjv@nettally.com

I CERTIFY the foregoing was filed electronically on 2/24/12 and that the person 

noted below is registered to be notified by the CM/ECF electronic mail system:

Lance Eric Neff, Mark Hiers

Office of the Attorney General

The Capitol, PL 01

Tallahassee, FL 32399-1050

Lance.neff@myfloridalegal.com

Ginger Barry Boyd

Broad and Cassel

200 Grand Boulevard, Suite 205A

Destin, Florida 32550

gbarry@broadandcassell.com

s/James Cook____________________

JAMES V. COOK

Case 4:11-cv-00045-RH-CAS Document 64 Filed 02/24/12 Page 3 of 3