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Walsh v. Jagst

United States District Court, E.D. Michigan, Southern Division

August 29, 2017

EDWARD THOMAS WALSH, Plaintiff,
v.
EDWARD JAGST, et al., Defendants.

         OPINION & 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. 40)

          MARK A. GOLDSMITH United States District Judge

         This is 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 encounter.

         Pending 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).

         In the 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).

         A hearing on these motions was held on August 15, 2017. For the reasons that follow, both motions are denied.

         I. Motion to Admit Testimony and/or Report of Dr. Charles Stern

         Defendants' 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 testify.

         Walsh 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.

         Defendants 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 instant context.

         As an 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”).

         Defendants seek to admit Dr. Stern's report through Federal Rule of Evidence 608. See id.[1] 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.

         Even if 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 ...

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