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Flythe v. District of Columbia

United States District Court, D. Columbia.

March 25, 2014

BETTY S. FLYTHE, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants

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[Copyrighted Material Omitted]

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Re Document No.: 84.

For BETTY S. FLYTHE, Personally, and as Personal Representative of the Estate of Tremayne G. Flythe, Plaintiff: Ernest Wendell McIntosh, NEWMAN & MCINTOSH, LLC, Washington, DC; Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER, PLLC, Washington, DC.

For DISTRICT OF COLUMBIA, a municipal corporation, VAZQUEZ, Officer # 4374, Defendants: Wayne C. Beyer, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL, Washington, DC; Soriya R. Chhe, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC.

For PFC ASSOCIATES, LLC, TAUNYA BROWNLEE, M.D., Interested Parties: Hubert W. Farrell, LEAD ATTORNEY, Eric William Gunderson, FARRELL & GUNDERSON, Columbia, MD.


RUDOLPH CONTRERAS, United States District Judge.

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Granting Defendants' Motion in Limine


This case involves the fatal shooting of Tremayne G. Flythe on December 26, 2009. The facts have been fully recounted in the Court's Memorandum Opinion dated November 8, 2013. See Mem. Op. at 2-8, ECF No. 72. In that Memorandum Opinion, the Court granted in part and denied in part the defendants' motions for summary judgment. Specifically, the Court granted the defendants' motions with respect to all but two claims: an assault claim against Officer Vazquez and an assault and battery claim against the District. See ECF Nos. 71 & 72. In an order amending that judgment in light of new controlling authority from the D.C. Circuit, this Court revived the plaintiff's claim for excessive force against Officer Vazquez. See ECF No. 94. The issues that currently remain for the March 31, 2014, scheduled trial are: (1) whether Officer Vazquez used excessive force in his encounter with Mr. Flythe, in violation of 42 U.S.C. § 1983; (2) whether Officer Vazquez assaulted Mr. Flythe, and (3) whether the District, as the employer of both Officer Vazquez and Officer Eagan, is liable for an assault and battery committed against Mr. Flythe.

The defendants bring this motion in limine to exclude certain expert testimony and other evidence at trial. See ECF No. 84. Specifically, the defendants ask this Court to (1) exclude the expert deposition and trial testimony and report of Dr.

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Bronson Levin, (2) exclude the expert deposition and trial testimony and report of Dr. Myron Weiner, (3) exclude the trial testimony and report of Chief Timothy Longo, concerning the supervision and fitness for duty of Officer Eagan, and limit his testimony to the actions of Officer Vazquez and Officer Eagan in responding to the second sighting and the shooting incident itself; and (4) prohibit the examination of any witnesses, introduction or use of exhibits, or the elicitation of testimony or presentation of evidence of any kind relating to Officer Eagan's fitness for duty before or during the shooting incident, or his positive drug test and termination after the incident. See Def.'s Mot. 7-8, ECF No. 84. For the reasons that follow, the Court will grant the defendants' motion. In addition, the Court has decided four evidentiary issues that arose at the Pretrial Conference on March 10, 2014, and those are discussed below in Section E.


A. Legal Standard

" While neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence expressly provide for motions in limine, the Court may allow such motions 'pursuant to the district court's inherent authority to manage the course of trials.'" Barnes v. District of Columbia, 924 F.Supp.2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)). " Motions in limine are designed to narrow the evidentiary issues at trial." Williams v. Johnson, 747 F.Supp.2d 10, 14 (D.D.C. 2010). " Rule 103(d) of the Federal Rules of Evidence mandates that the court must conduct a jury trial to the extent practicable so that inadmissible evidence is not suggested to the jury by any means." Daniels v. District of Columbia, No. CV 11-1331 (BAH), 2014 WL 535213, at *2 (D.D.C. Feb. 11, 2014) (citing Fed.R.Evid. 103(d)). Importantly, a trial judge's discretion " extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial." Barnes, 924 F.Supp.2d at 79 (quoting Graves v. District of Columbia, 850 F.Supp.2d 6, 11 (D.D.C. 2011)).

" In evaluating the admissibility of proffered evidence on a pretrial motion in limine the court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to Federal Rules of Evidence 401 and 402." Daniels, 2014 WL 535213, at *3. Under the Federal Rules of Evidence, " [e]vidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed.R.Evid. 401. A court " may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. " Unfair prejudice within its context means an undue tendency to suggest [making a] decision on an improper basis, commonly, though not necessarily, an emotional one." United States v. Ring, 706 F.3d 460, 472, 403 U.S.App. D.C. 410 (D.C. Cir. 2013), cert. denied, 134 S.Ct. 175, 187 L.Ed.2d 43 (2013) (quoting Advisory Committee's Note, Fed.R.Evid. 403); see also Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980) (explaining that evidence is unfairly prejudicial " if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to

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base its decision on something other than the established propositions in the case." ) (citations omitted). Under Rule 403, " the court must 'engage in on-the-spot balancing of probative value and prejudice and . . . exclude even factually relevant evidence when it fails the balancing test." Daniels, 2014 WL 535213, at *3 (quoting United States v. Moore, 651 F.3d 30, 63, 397 U.S.App. D.C. 148 (D.C. Cir. 2011)).

B. Expert testimony of Drs. Weiner & Levin

The Court begins its analysis with the relevance of each of these expert reports. Dr. Weiner's expert toxicologist/pharmacologist report and deposition address Officer Eagan's use of methamphetamines or other drugs around the time of the shooting. See ECF Nos. 84-4 & 84-5. Dr. Levin's testimony meanwhile addresses Officer Eagan's fitness for duty on the day of the shooting. See ECF Nos. 84-1 & 84-3. Essentially, both experts testify to Officer Eagan's subjective mental state on the day of the shooting. But this information is not relevant to Officer Eagan's defense of qualified privilege, which in turn is available to the District as Officer Eagan's employer. As the D.C. Court of Appeals has explained, " an officer [] is justified in using reasonable force to repel an actual assault, or if he reasonably believes he is in danger of bodily harm. Use of deadly force, however, is lawful only if the user actually and reasonably believes, at the time such force is used, that he or she (or a third person) is in imminent peril of death or serious bodily harm." Etheredge v. District of Columbia, 635 A.2d 908, 916 (D.C. 1993) (internal quotation marks and citations omitted). The officer's judgment is " to be reviewed 'from the perspective of a reasonable officer on the scene,' with allowance for the officer's need to make quick decisions under potentially dangerous circumstances." See Rogala v. District of Columbia, 161 F.3d 44, 57, 333 U.S.App. D.C. 145 (D.C. Cir. 1998) (quoting Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)); see also id. (" This standard is similar to the excessive force standard applied in the Section 1983 context." ). And, as the Supreme Court has explained in the excessive force context, " the reasonableness inquiry . . . is an objective one: the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397 (emphasis added). Thus, any evidence regarding Officer Eagan's subjective judgment is not probative on the issue of the objective reasonableness of his actions.

Moreover, Officer Eagan's judgment is not at issue here. This is not a case where an officer confused a wallet for a gun. Here, both officers said Mr. Flythe had a knife, he tried to use it against both of them, and a knife was recovered from the scene. Witnesses say there was no knife, so the question of fact is whether both officers are lying, not ...

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