United States District Court, E.D. Michigan, Southern Division
& ORDER DENYING WITH PREJUDICE DEFENDANTS' MOTION IN
LIMINE TO ALLOW THE TESTIMONY AND/OR REPORT OF DR. CHARLES
STERN (Dkt. 39), DENYING WITH PREJUDICE DEFENDANTS'
MOTION TO ADD DR. STERN AS A WITNESS (Dkt. 61), AND DENYING
WITHOUT PREJUDICE DEFENDANTS' MOTION IN LIMINE TO ALLOW
ALL EVIDENCE OF PLAINTIFF'S POLICE ENCOUNTERS (Dkt.
A. GOLDSMITH United States District Judge
a civil rights action brought by Plaintiff Edward Walsh
pursuant to 42 U.S.C. § 1983, alleging violations of his
rights under the Fourth and Fourteenth Amendments. Walsh
seeks to recover for non-economic, emotional damages in
connection with an encounter with Canton Police officers in
his home on January 9, 2013. See Compl. ¶¶
16-20 (Dkt. 1-1). Defendants are four Canton police officers,
who responded to Walsh's 911 calls on the date in
question. Id. ¶¶ 4-7. It is uncontested
that Walsh suffered from a mental illness at the time of the
before this Court are two motions in limine filed by
Defendants. In the first motion, Defendants seek a ruling
that the testimony of Dr. Charles Stern, who has treated
Walsh for his mental health issues in the past, may be
admitted at trial (Dkt. 39). Following Defendants'
challenge to Walsh's competency to prosecute his case
(Dkt. 48), Dr. Stern prepared a medical report ostensibly
bearing upon the issue of Walsh's competency (Dkt. 55-2).
The parties filed supplemental briefs on the issue whether
this report could be admitted at trial (Dkts. 58, 59).
second motion in limine, Defendants seek a ruling that
“all evidence” of Walsh's encounters with
police, including police reports and including evidence both
before and after the January 9, 2013 incident, may be
admitted at trial (Dkt. 40).
hearing on these motions was held on August 15, 2017. For the
reasons that follow, both motions are denied.
Motion to Admit Testimony and/or Report of Dr. Charles
motion in limine establishes that a plaintiff may waive his
psychotherapist-patient privilege by putting his mental
condition at issue through a claim for mental-anguish
damages. It follows, according to Defendants, that Walsh -
having placed his mental condition at issue with respect to
damages - has waived the privilege, permitting Dr. Stern to
does not dispute Defendants' legal premise; instead, he
points out that Defendants stipulated to remove Dr.
Stern from their witness list on October 7, 2016.
See 10/7/2016 Stip. Order (Dkt. 38). At the hearing
on the motion, Defendants' counsel could not explain why
he had stipulated to striking Dr. Stern's name from the
witness list. Nor have Defendants established good cause in
their post-hearing motion for leave to amend the witness list
(Dkt. 61) to add Dr. Stern now - on the eve of trial - when
his role and identity were known to them approximately ten
months ago. More fundamentally, they do not even explain how
Dr. Stern's testimony would bear upon damages - the
original justification offered - and therefore they fail to
carry their basic burden to establish the basic threshold
requirement of relevance under Federal Rule of Evidence 401.
offer a clearer picture of why they want to offer Dr.
Stern's report, as opposed to his testimony: it
attacks Walsh's credibility. See Defs. Supp. Br.
at 3. Admission of the report (or the testimony, for that
matter) is not permissible for this purpose, at least in the
initial matter, “the credibility of witnesses is
generally not an appropriate subject for expert
testimony.” United States v. Hill, 749 F.3d
1250, 1258 (10th Cir. 2014) (emphasis added); see also
id. at 1260 (surveying case law and concluding that
“our sibling circuits that have considered this issue
have uniformly agreed”).
seek to admit Dr. Stern's report through Federal Rule of
Evidence 608. See id. Rule 608 provides, in part, that
“[a] witness's credibility may be attacked or
supported by testimony about the witness's reputation for
having a character for truthfulness or untruthfulness, or by
testimony in the form of an opinion about that
character.” It is not limited to experts or nonexperts.
Rule 608 may be used to admit a witness's relevant,
expertise-based testimony regarding another witness's
character for truthfulness, it may not be used to
“address[ ] the specific believability and truthfulness
of [the accuser]'s story.” See United States v.
Azure, 801 F.2d 336, 8th Cir. 1986). Yet, that is
exactly what Dr. Stern's report does. Dr. Stern's
conclusion is as follows:
It is my opinion that Mr. Walsh's statements and
accusations toward . . . the police . . . make him a totally
unreliable accuser. He will make any statement and
behave in any manner that he believes will prevent
him from taking responsibility for his actions. . . .
Specifically, in relation to his charges against the
police, given his mental illness, his antisocial