Patricia I. Ermini v. Mike Scott ( 2019 )

Case: 18-11220 Date Filed: 09/10/2019 Page: 1 of 29
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11220
________________________
D.C. Docket No. 2:15-cv-00701-GAP-CM
PATRICIA I. ERMINI,
a.k.a. Patricia I. Mapes,
Plaintiff–Appellee,
versus
MIKE SCOTT,
in his official capacity as Sheriff of Lee County, Florida,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 10, 2019)
Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.
NEWSOM, Circuit Judge:
Case: 18-11220 Date Filed: 09/10/2019 Page: 2 of 29
This case arises out of a routine wellness check that went badly awry. The
underlying episode began with three Lee County deputies stopping by to check on
71-year-old Patricia Ermini at the request of her daughter—and ended with the
deputies shooting Ermini five times. Ermini—who, incredibly, survived—later
sued, bringing a litany of state- and federal-law claims against the deputies and Lee
County Sheriff Mike Scott. Only one claim made it past summary judgment—a
state-law cause of action against Sheriff Scott in his official capacity, seeking to
hold him vicariously liable for the deputies’ negligence in conducting the check.
That claim went to trial, the jury ruled in Ermini’s favor, and the district court
thereafter denied Scott’s motion for new trial.
Scott now appeals the judgment against him as well as the court’s post-
judgment order refusing his new-trial request. Scott argues (1) that the district
court improperly instructed the jury that if it concluded that he proved Florida’s
“alcohol defense,” Ermini couldn’t recover; (2) that by introducing evidence
regarding certain aspects of the deputies’ conduct during the check, Ermini
impermissibly pursued a nonexistent and precluded “negligent-use-of-force” claim;
(3) that Ermini’s lawyer made a forbidden “golden-rule” argument when she asked
the jurors to “imagine if someone was in [their] house”; and (4) that the trial court
abused its discretion by admitting immaterial character evidence concerning two
deputies’ post-event (and unrelated) terminations from the Lee County Sheriff’s
2
Case: 18-11220 Date Filed: 09/10/2019 Page: 3 of 29
Office. Because we find no errors that merit a new trial, we affirm the judgment in
Ermini’s favor.
I
A
Following a worrisome telephone conversation, Patricia Ermini’s daughter,
Maine resident Robin LaCasse, called the Lee County Sheriff’s Office to request a
wellness check on her elderly mother. During the call, Ermini had seemed
distraught—and possibly suicidal—and LaCasse hadn’t been able to get back in
touch with her. LaCasse told the Sheriff’s Office that Ermini might have been
drinking wine and that she had a handgun in her home. Shortly after LaCasse’s
phone call, Deputies Richard Lisenbee, Robert Hamer, and Charlene Palmese were
dispatched to Ermini’s home; they knew that Ermini could be intoxicated and that
she owned a gun.
Lisenbee arrived on the scene first, banged on the door, and yelled “Sheriff’s
Office,” but got no response. When he opened the unlocked door, Lisenbee found
the house dark, quiet, and in disarray, an empty wine bottle on the floor. He
retreated out of the house and waited for backup. When Palmese arrived, she and
Lisenbee reentered the home and announced themselves, but again got no
response. The deputies opted to wait for Hamer before continuing the wellness
check. Once all three officers were on the scene, they again announced themselves
3
Case: 18-11220 Date Filed: 09/10/2019 Page: 4 of 29
and entered the dark living room with their flashlights illuminated and their
weapons drawn. They made their way to the closed double doors leading to
Ermini’s master bedroom.
Lisenbee opened the right door and shined his flashlight into the room,
where he saw Ermini lying in bed. Ermini awoke, confused by the strangers in her
bedroom—she testified that she remembered asking “who’s there?” and telling the
intruders that she had a gun and to get out of her house. She also testified that she
recalled the deputies saying that they were with the Sheriff’s Department and her
responding that she hadn’t called the Sheriff and that they had better get out of her
house. Lisenbee began backing out of the bedroom as Ermini, clothed only in her
undergarments, moved toward the door.
The deputies and Ermini recall very differently the critical moments that
followed. Hamer testified that Ermini walked toward him with both hands on her
gun, which she pointed directly at him. Ermini doesn’t remember grabbing her
gun or pointing it at anyone. In any event, Hamer, who was outside the bedroom,
fired seven rounds through the partially closed bedroom door, five of which hit
Ermini, who collapsed onto the floor. (Further to the parties’ dispute, Ermini’s
gun was found on the floor to the left of where she fell after being shot, and a
bullet from her weapon was later found lodged in the ceiling.) Hamer began
providing emergency medical care to a still-confused Ermini, who (according to
4
Case: 18-11220 Date Filed: 09/10/2019 Page: 5 of 29
the officers and paramedics) repeatedly asked why the deputies were in her home
and why they were trying to kill her. Ermini was taken to the hospital for further
treatment, and she survived.
B
Ermini sued Deputies Lisenbee, Hamer, and Palmese, as well as Sheriff
Scott and William Murphy, an additional officer who hadn’t been on the scene.
Among other claims, Ermini alleged excessive force and false arrest under the
Fourth Amendment, battery, negligent infliction of emotional distress, and
negligence in conducting the wellness check under Florida law. Only Ermini’s
vicarious-liability claim against Scott for the allegedly negligent wellness check
survived summary judgment. That claim went to trial, and the jury ultimately
ruled in Ermini’s favor, awarding her $750,000 in damages.
Several aspects of the pre-trial and trial proceedings are relevant to this
appeal. We’ll take them chronologically. First, before trial, Scott submitted a
motion in limine under Federal Rules of Evidence 403 and 404(b) to exclude
evidence surrounding Lisenbee’s and Hamer’s post-event (and unrelated)
terminations from the Sheriff’s Office. The district court held a telephonic hearing
and denied the motion, stating that it would allow limited questioning about the
timing of and general reasons for the officers’ terminations but that it would
exclude additional details and written reports. Second, during closing arguments,
5
Case: 18-11220 Date Filed: 09/10/2019 Page: 6 of 29
Ermini’s lawyer asked the jury, “Can you imagine if someone was in your house
that you wouldn’t try to figure out who is that[?]” Scott’s lawyer objected, stating
“That’s not right, golden rule.” The district court overruled the objection without
further elaboration.
The third item pertains to Scott’s “alcohol defense,” which, under Florida
law, prevents a plaintiff from recovering damages if either her “normal faculties
were impaired” or she had a blood-alcohol level of 0.08% or higher, and as a result
she was more than 50% responsible for her own harm. Fla. Stat. § 768.36(2)(a)–
(b) (2019). The district court instructed the jury that if it found that Scott had
proved the alcohol defense by a preponderance of the evidence, Ermini couldn’t
recover. A similar statement was included on the special verdict form given to the
jury, which informed jurors that if they found in Scott’s favor on the defense, they
didn’t need to fill out the remainder of the form. Scott objected to the court’s
alcohol-defense instruction at trial.
Following the jury’s verdict, Scott moved for a new trial and renewed his
motion for judgment as a matter of law. As relevant here, he argued that the
evidence about Lisenbee’s and Hamer’s terminations should have been excluded
and that Ermini had improperly introduced evidence about the deputies’ use of
force, which Scott said had no place in a negligent-wellness-check case. The
6
Case: 18-11220 Date Filed: 09/10/2019 Page: 7 of 29
district court denied both motions. Scott appeals the district court’s judgment and
its order denying his motion for new trial. 1
II
Scott’s first argument challenges the district court’s jury instructions and
verdict-form entry pertaining to Florida’s alcohol defense, which is codified at Fla.
Stat. § 768.36. The district court instructed the jury as follows:
On the first defense, the issue for you to decide is whether Patricia
Ermini was under the influence of any alcoholic beverage to the
extent that her normal faculties were impaired, or the plaintiff had a
blood alcohol level of .08 or higher; and whether as a result of the
influence of such alcoholic beverage, Patricia Ermini was more than
50 percent at fault for her own harm.
If you find that the sheriff has proven this defense by a
preponderance of the evidence, then plaintiff’s claim is barred and
your verdict is for the sheriff.
(emphasis added). Scott objected to the italicized portion of the charge,
which wasn’t included in the parties’ proposed instructions. The verdict form
similarly informed the jury that if it found that Scott had proved the alcohol
defense, it didn’t need to complete the remainder of the form.
Scott contends that he is entitled to a new trial because the district court
improperly told the jury about the legal effect of any finding under the alcohol
defense—namely, that if proved the defense would bar Ermini from recovering.
1
Although Scott’s notice of appeal also referenced his renewed motion for judgment as a matter
of law, he didn’t address that motion in his briefing, so we won’t consider it here.
7
Case: 18-11220 Date Filed: 09/10/2019 Page: 8 of 29
That information, he says, was unnecessary and was likely to evoke sympathy for
Ermini. In particular, Scott asserts that just as evidence of a party’s liability
insurance is inadmissible at trial, see Fed. R. Evid. 411, information about the legal
effect of an alcohol-impairment finding should be verboten since it too has the
potential to improperly influence the jurors’ emotions. We disagree.2
A
Before jumping into the merits, we must determine at the outset whether
state or federal law governs Scott’s argument. We know, as a general matter, that
in a diversity case in federal court, “[t]he substance of jury instructions . . . is
governed by the applicable state law, but questions regarding procedural aspects of
jury charges are controlled by federal law and federal rules.” Pate v. Seaboard
R.R., Inc., 819 F.2d 1074, 1081–82 (11th Cir. 1987) (citations omitted). This case,
though, poses a more specific issue, which turns out to be a question of first
impression for this Court: What law applies—state or federal—when deciding
whether a district court judge properly informed the jury about the legal effect of
its finding under state law? More particularly, is informing the jury about the legal
effect of a factual finding bound up in the “substance of [the] jury instructions”
2
“We review jury instructions de novo to determine whether they misstate the law or mislead the
jury to the prejudice of the objecting party.” Palmer v. Bd. of Regents of the Univ. Sys. of Ga.,
208 F.3d 969, 973 (11th Cir. 2000) (citations omitted). So long as the jury “instructions
accurately reflect the law,” however, a district court has “wide discretion as to the style and
wording employed.” McCormick v. Aderholt, 293 F.3d 1254, 1260 (11th Cir. 2002).
8
Case: 18-11220 Date Filed: 09/10/2019 Page: 9 of 29
within the meaning of Pate, and thus governed by the underlying state law, or is it
instead a “procedural aspect[]” of the charge governed by federal law?
We join the Seventh Circuit in holding that this issue is controlled by federal
law, as it pertains to procedure, not substance. In Beul v. ASSE International, Inc.,
233 F.3d 441 (7th Cir. 2000), the Seventh Circuit faced the question whether state
or federal law governed a district court’s handling of a question posed to it by a
jury during its deliberations. The question pertained to the special verdict form,
which required the jury “to enter separately . . . the amount of damages and the
percentage of the plaintiff’s comparative fault and not make the ‘bottom line’
computation, which involve[d] deducting from the amount of damages that amount
times the plaintiff’s percentage of comparative fault.” Id. at 449. In particular, the
jury asked, “What bearing do the negligence factors”—i.e., the fault percentages
assigned to the parties—“have on the amounts we may or may not choose to
award?” Id. The judge answered, correctly, that they would indeed have an effect:
“[T]he comparison factor, if you find both parties negligent, has a significant
impact upon the award that the Court enters.” Id.
In concluding that federal law governed the question whether the judge had
acted properly, the Seventh Circuit began with the proposition that “[r]ules of
general applicability and purely managerial character governing the jury, such as
the form in which a civil jury is instructed, are quintessentially procedural.” Id.
9
Case: 18-11220 Date Filed: 09/10/2019 Page: 10 of 29
From that premise, the court concluded that a district judge’s decision to inform
the jury about the legal effect of its findings is an issue of procedure: “We think it
follows that whether the federal court should try to keep the jury in the dark about
the legal effect of the jury’s answers to the questions posed to it by the special
verdict is also a question of federal law.” Id. The court wrote that its classification
of the issue as procedural could result either from “an interpretation of [Federal]
Rule [of Civil Procedure] 49(a),” which governs special verdicts, or from the
application of “a federal common law of special verdicts to supplement the rule.”
Id. (The same, we think, could be said with respect to Rule 51, which governs jury
instructions. See Fed. R. Civ. P. 51.)
We agree with the Seventh Circuit’s conclusion that federal law controls.
The decision whether to inform the jury about the legal effect of its findings—or,
whether instead, in the Seventh Circuit’s words, to “keep the jury in the dark”—
has nothing to do with the substance of the applicable legal rule or the merits of the
issues before the court. Instead, it has everything to do with the fair and efficient
management of the trial. To be sure, a party may take issue with the fairness or
efficiency of the district court’s decision; but it must do so by reference to federal
law, not state.
10
Case: 18-11220 Date Filed: 09/10/2019 Page: 11 of 29
B
So then, does federal law preclude a district court judge from informing
jurors about the legal effects of their factual findings? We hold that it doesn’t.
It’s true, of course, that “[a] judge has no general duty to inform the jury of
the legal consequences of its verdict.” Beul, 233 F.3d at 450 (citations omitted).
And it may even be the case that “in some circumstances the giving of such
information might interfere with the jury’s appraisal of the facts.” Id. But there is
most assuredly “no rule against giving the information.” Id. And indeed, we agree
with the Seventh Circuit that it is “difficult to conceive” of a scenario in which
merely informing jurors of the legal consequences of their findings—i.e., telling
them the whole truth—would constitute reversible error. Id. Rule 49 expressly
allows judges to use general verdict forms with special interrogatories, which
“reveal to the jury the legal consequences of its specific findings,” and “there is no
purpose in forbidding [judges] to do the same thing with a special verdict.” Id.
And we can think of no reason why a different rule should apply to jury
instructions. We hold, therefore, that a district court may inform the jury about the
legal effect of its finding so long as it does so accurately. And here no one
contends—nor could they—that the court’s instructions were inaccurate.
Scott leans heavily on Harrison v. Gregory, and understandably so, as the
court there granted a new trial, in part because the jury was told that if it concluded
11
Case: 18-11220 Date Filed: 09/10/2019 Page: 12 of 29
the defendant had proved Florida’s alcohol defense, the plaintiff couldn’t recover.
221 So. 3d 1273, 1277–78 (Fla. Dist. Ct. App. 2017). Harrison, though, is doubly
distinguishable. First, it arose under state law, and as we’ve just explained, federal
law governs whether and under what circumstances a federal district court judge
may inform the jury about the legal effect of its findings. Second, Harrison is
different in an important respect. The problem there wasn’t so much that the jury
found out about the legal effect of its finding regarding Florida’s alcohol defense,
but rather that the plaintiff’s lawyer had, in closing, attempted to “inflame the
minds and passions of the jurors” by harping on the unfairness of the statutory
defense: “By the way,” he said, “50 percent or more at fault, there’s no recovery.”
Id. at 1277. 3 The situation here, where the district court impassively—and
accurately—instructed the jury concerning the legal effect of its alcohol-defense
finding, strikes us as entirely different. Walther v. Omaha Public Power District,
412 F.2d 1164 (8th Cir. 1969), on which Scott also relies, is also off-point. There,
the Eighth Circuit merely concluded that the legal effect of a jury’s finding needn’t
necessarily be included in a jury instruction, not that it can’t be included. See id. at
1169–70.
3
In this connection, it is worth noting that Scott’s own lawyer made a similar comment during
his closing argument here: “[B]y the way, if [Ermini’s] own intoxication impairment factored
into this incident, precipitated the incident, caused the incident, then this claim is barred.” He
went on to tell the jurors that if they found in Scott’s favor with regard to the alcohol defense,
“that ends this case.”
12
Case: 18-11220 Date Filed: 09/10/2019 Page: 13 of 29
To summarize: Federal law controls this issue, and federal law doesn’t
preclude district court judges from accurately informing jurors of the effects of
their findings—in either their instructions or their verdict forms. Accordingly, it
wasn’t improper for the judge here to provide an accurate statement of law
explaining the legal effect of the jury’s finding under Florida’s alcohol defense.
III
Scott next asserts that he is entitled to a new trial on the ground that Ermini
effectively used her negligent-wellness-check claim as a Trojan Horse to reassert
her claims about the deputies’ use of force, which the district court had dismissed
pretrial. Although his position is difficult to discern, Scott seems to be making
either (or both) of two different arguments. First, he contends that Ermini’s
introduction of evidence about the deputies’ use of force converted her otherwise
cognizable (even if he would say losing) negligent-wellness-check claim into an
invalid “negligent-use-of-force” claim that Florida law doesn’t recognize. Second,
and separately, because the district court rejected Ermini’s claims surrounding the
officers’ use of force at summary judgment, Scott asserts that her claim is
precluded. We disagree on both counts.4
4
Our “review of a district court’s denial of a motion for new trial is very limited.” Blu-J, Inc. v.
Kemper C.P.A. Grp., 916 F.2d 637, 643 (11th Cir. 1990). “Absent an abuse of discretion, the
district court’s disposition of a motion for a new trial will not be disturbed on appeal, especially
when that disposition was to deny the motion.” Id.
13
Case: 18-11220 Date Filed: 09/10/2019 Page: 14 of 29
A
We’ll start with Scott’s contention that Ermini used the guise of a negligent-
wellness-check claim to try a non-cognizable negligent-use-of-force claim. And
we’ll begin at the beginning, with Ermini’s complaint. Ermini’s complaint
expressly alleged that Scott’s deputies negligently performed a wellness check—
not that they engaged in a negligent use of force. (To be sure, Ermini asserted that
the deputies used force excessively, in violation of federal constitutional standards,
but not that they used force negligently, in violation of state law.) In particular,
Ermini alleged that “S[cott], acting through his deputies, owed a special duty of
care to [her] because of the manner in which his deputies responded to a 911 call
for a wellness check,” and that the deputies later “fail[ed] to exercise reasonable
care in conducting the wellness check.” And the district court certainly seemed to
appreciate the distinction: While the court granted summary judgment in the
deputies’ favor on Ermini’s excessive-force claims, it denied them summary
judgment on the negligent-wellness-check claim, finding that “triable issues of fact
exist[ed] as to whether the deputies exercised reasonable care in carrying out the
welfare check, which increased the risk of harm to [Ermini], and whether
[Ermini’s] actions were a reasonably foreseeable consequence of the negligent acts
or omissions of the deputies.”
14
Case: 18-11220 Date Filed: 09/10/2019 Page: 15 of 29
Even so, Scott insists that as matters unfolded at trial, Ermini’s negligent-
wellness-check claim devolved into a non-cognizable—and thus forbidden—
negligent-use-of-force claim. We don’t think so. Ermini didn’t invent and litigate
a new cause of action; rather, there is simply an inevitable overlap between the
facts underlying her negligent-wellness-check claim and those surrounding the
deputies’ use of force. And although Florida doesn’t recognize claims for
negligent use of force, it does recognize the commonsense proposition that
“distinct act[s] of negligence” can occur in conjunction with alleged excessive-
force incidents. City of Miami v. Sanders, 672 So. 2d 46, 48 (Fla. Dist. Ct. App.
1996). Just so here—the wellness check involved distinct acts of alleged
negligence during which an allegedly excessive use of force occurred.
To bolster his claim, Scott asserts that “[m]uch of [Ermini’s] counsel’s
questions and argument” focused on the officers’ use of force, but he musters only
two examples from the trial record: (1) Ermini’s lawyer suggesting that she never
pointed her gun at the deputies; and (2) her lawyer referencing the deputies’ failure
to issue a warning prior to opening fire. Two instances do not “much” of Ermini’s
argument make. Moreover, the facts surrounding the use of force are inextricably
intertwined with those surrounding the wellness check—it’s all one seamless story.
Accordingly, it seems to us essentially inevitable that Ermini’s lawyer properly
would elicit testimony pertaining to the use of force in the course of trying the
15
Case: 18-11220 Date Filed: 09/10/2019 Page: 16 of 29
negligent-wellness-check claim. Indeed, excluding all information about the
officers’ force would have made it nearly impossible for the jury to do its job.
Could jurors have even possibly determined Ermini’s damages, for instance, if they
had been precluded from hearing any information about the specific conduct that
caused her injury?
In any event, the fact that Ermini’s lawyer mentioned a few details about the
force used by the deputies doesn’t negate or invalidate the trial’s overarching focus
on their negligence in performing the wellness check, nor does it convert Ermini’s
negligent-wellness-check claim into a nonexistent negligent-use-of-force claim.
The complaint, the jury instructions, and the verdict form all properly focused on
the vicarious-liability claim against Scott and his statutory defenses. And when
Ermini’s lawyer examined her witnesses—particularly the officers—she
questioned them extensively about their conduct in connection with the wellness
check even before any shots were fired. She asked the deputies, for instance, about
their dark uniforms, whether the lights outside Ermini’s home were on, whether the
house’s interior was dark and if (and how) they used their flashlights, whether their
patrol cars were visible from the road, whether they checked the perimeter of the
home before entering, whether they used Ermini’s name when speaking to her, and
what, if any, wellness-check-related training or experience they had received prior
to the incident. None of those questions had anything to do with the officers’ use
16
Case: 18-11220 Date Filed: 09/10/2019 Page: 17 of 29
of force. The fact that Ermini’s lawyer also occasionally touched on force-related
topics doesn’t convert the cause of action. The circumstances surrounding the
wellness check and the use of force are bound up in the same unfortunate
incident—it’s difficult, if not impossible, to tell the former story without
occasionally verging into the latter.
B
Scott separately contends—albeit obliquely—that Ermini’s introduction of
evidence pertaining to the deputies’ use of force should have been barred by some
form of preclusion doctrine. Again, we disagree.
To the extent that any such doctrine is in play here, we think it is “direct
estoppel,” which is a variety of issue preclusion. DuChateau v. Camp, Dresser &
McKee, Inc., 713 F.3d 1298, 1301 (11th Cir. 2013). “Direct estoppel, as opposed
to collateral estoppel, governs the preclusive effect of a litigated issue in a separate
proceeding within a single suit.” Cotton v. Heyman, 63 F.3d 1115, 1118 n.1 (D.C.
Cir. 1995); see also DuChateau, 713 F.3d at 1301–03. To the extent Scott means
to argue that Ermini was barred from “relitigating” at trial force-related facts that
had already been adjudicated against her at summary judgment—in particular,
whether Ermini pointed her gun at the deputies and whether they warned her
before shooting—his argument fails. A partial summary judgment on some of a
plaintiff’s claims cannot directly estop other claims that proceed to trial.
17
Case: 18-11220 Date Filed: 09/10/2019 Page: 18 of 29
We have held that a jury verdict on one claim can directly estop another
claim in the same suit. DuChateau, 713 F.3d at 1301–02 (holding that a jury
verdict on a claim of employment retaliation directly estopped the plaintiff’s
appeal of the district court’s rejection of her claim of pregnancy discrimination
because both claims required proof of adverse employment action). But partial
summary judgment is materially different from a jury verdict. Unlike a jury
verdict, a partial summary judgment is not a “final decision” under 28 U.S.C.
§ 1291. State Treasurer of Michigan v. Barry, 168 F.3d 8, 11 (11th Cir. 1999).5
Accordingly, the district court’s interlocutory order rejecting some of Ermini’s
claims at summary judgment does not preclude her negligent-wellness-check
claim. 6
5
The only way for Ermini to obtain appellate review of the district court’s partial summary
judgment against her would have been to seek discretionary interlocutory review, 28 U.S.C.
§ 1292(b), or extraordinary relief such as a writ of mandamus. And a failure to seek permissive
interlocutory review does not transform an otherwise nonfinal order into a final decision entitled
to preclusive effect. 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 4418, at 524 (3d ed. 2016) (“[F]ailure to seize opportunities for
avowedly interlocutory review should not transform a potentially reviewable order into issue
preclusion.”).
6
Moreover, and in any event, both of the issues on which Scott seems to predicate his estoppel-
based argument—whether Ermini pointed her gun at the deputies and whether they warned her
before shooting—were assumed in Ermini’s favor at summary judgment, not against her; the
district court accepted for the sake of argument that Ermini didn’t point her gun at the deputies
and that they didn’t warn her before opening fire, but granted summary judgment on her
excessive-force claim anyway.
18
Case: 18-11220 Date Filed: 09/10/2019 Page: 19 of 29
IV
Next, the “golden-rule.” Scott objects to the following statement that
Ermini’s lawyer made at closing: “The fact of the matter is that . . . actually, the
evidence supports Ms. Ermini’s version, which is a logical thing. Can you imagine
if someone was in your house that you wouldn’t try to figure out who is that[?]”
(emphasis added). Scott asserts that this statement violates the prohibition on
“golden-rule” arguments. We disagree. 7
A
A “golden-rule” argument invites jurors to “put themselves in the shoes of
the plaintiff and do unto him as they would have him do unto them under similar
circumstances.” Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir. 1978).
The risk is that such a statement asks jurors to “decide the case on the basis of
sympathy rather than from an objective review of the evidence.” Dempsey v. Mac
Towing, Inc., 876 F.2d 1538, 1540 n.1 (11th Cir. 1989). An unremedied golden-
rule argument will ordinarily result in reversal. Id.
A golden-rule objection typically arises when a lawyer asks jurors to place
themselves in the plaintiff’s position with respect to the calculation of damages.
See, e.g., Ivy, 585 F.2d at 741 & n.10. For example, asking the jury, “If you were
7
We review a district court’s ruling regarding allegedly improper statements by counsel for an
abuse of discretion. Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988) (citation
omitted).
19
Case: 18-11220 Date Filed: 09/10/2019 Page: 20 of 29
in the plaintiff’s shoes, how much do you think you would deserve?” would be a
clear-cut violation. “The rationale for prohibiting such an argument is that the
jury’s sympathy will be unfairly aroused, resulting in a disproportionate award of
damages.” Burrage v. Harrell, 537 F.2d 837, 839 (5th Cir. 1976); see also Har-
Pen Truck Lines, Inc. v. Mills, 378 F.2d 705, 714–15 (5th Cir. 1967). The question
here is whether Ermini’s lawyer’s statement—which pertained not to the
appropriate measure of damages but rather to Scott’s liability for the deputies’
actions—violated the prohibition on golden-rule arguments as explicated in our
case law. We conclude that it didn’t.
B
Although many courts treat golden-rule arguments as universally improper, 8
we have historically permitted certain golden-rule-ish statements in the liability
context. Most notably for present purposes, in McNely v. Ocala Star-Banner
Corp., we held that defense counsel didn’t violate the prohibition on golden-rule
arguments when he “invit[ed] the jury to put itself in the defendants’ position when
8
See, e.g., Caudle v. District of Columbia, 707 F.3d 354, 360 (D.C. Cir. 2013) (holding that “[i]t
is no more appropriate for a jury to decide a defendant’s liability . . . based on an improper
consideration than to use the same consideration to determine damages”); Mich. First Credit
Union v. Cumis Ins Soc’y, Inc., 641 F.3d 240, 249 (6th Cir. 2011); Ins. Co. of N. Am., Inc. v. U.S.
Gypsum Co., 870 F.2d 148, 154 (4th Cir. 1989); Edwards v. City of Philadelphia, 860 F.2d 568,
574–75 (3d Cir. 1988); Joan W. v. City of Chicago, 771 F.2d 1020, 1022 (7th Cir. 1985) (stating
that “[t]here is no reason for . . . a distinction [between different types of golden rule statements]
because the jury’s departure from its neutral role is equally inappropriate regardless of the issue
at stake”).
20
Case: 18-11220 Date Filed: 09/10/2019 Page: 21 of 29
considering [plaintiff’s] alleged work place misconduct and evaluating whether he
was terminated because of his disability.” 99 F.3d 1068, 1071 n.3 (11th Cir.
1996). That statement, we held, “was not in any way directed to the question of
damages; rather it related only to the reasonableness of appellee’s actions”—an
issue that was squarely, and properly, before the jury. Id. (emphasis added) (citing
Burrage, 537 F.2d at 839).
Somewhat farther afield—but in the same vein—we have permitted liability-
related golden-rule statements in criminal cases. In Reese v. Secretary, Florida
Department of Corrections, for instance, we held that a prosecutor’s comment that
a victim experienced “every woman’s wors[t] nightmare,” as well as statements
urging the jury to think about “what was going on in [the victim’s] mind,” weren’t
improper golden-rule arguments because the government had to show that the
crime was “designed to inflict a high degree of pain with utter indifference to . . .
the suffering of others” in order to prove an aggravating factor. 675 F.3d 1277,
1292 (11th Cir. 2012) (first alteration in original) (quoting citation omitted). So
too, in Davis v. Kemp, we deemed the following statement permissible in a death-
penalty case, because the jury could properly consider the defendant’s “future
dangerousness”: “Ask yourselves this question, how would you feel living in this
community if you looked out of your window one night and saw [the defendant]
walking down the street coming up toward your house. If that wouldn’t put a
21
Case: 18-11220 Date Filed: 09/10/2019 Page: 22 of 29
feeling of cold terror in your heart, what would?” 829 F.2d 1522, 1528–29 (11th
Cir. 1987).9
The common tie that binds the liability-related golden-rule-ish statements
that we have deemed permissible? Their connection to an element or factor
genuinely at issue in the case, or their focus on either a party’s behavior or
perception of an incident. Here, Ermini’s lawyer’s argument went directly to the
reasonableness of Ermini’s response to the deputies’ actions during the wellness
check, which bears directly on the foreseeability of her actions—both issues that
jurors would necessarily have had to grapple with in deciding Ermini’s negligent-
wellness-check claim. The statement seems to us essentially indistinguishable
from the reasonableness-related statement that we allowed in McNely.
Admittedly, Ermini’s lawyer could have chosen her words more carefully—
there’s plenty of case law warning attorneys to steer clear of potentially
inflammatory closing arguments, see, e.g., United States v. Kopituk, 690 F.2d
1289, 1342–43 (11th Cir. 1982)—but, her lone statement in closing didn’t run
afoul of the prohibition on golden-rule statements as we have understood and
applied it.
9
See also, e.g., Kennedy v. Dugger, 933 F.2d 905, 913 (11th Cir. 1991) (permitting the following
comment about a first-degree-murder victim’s experience: “Can you imagine, in your own
living room not bothering a soul on a Saturday afternoon? . . . [The defendant] walked . . . down
to your own house, and, a total stranger, because you got in his way, destroys you[?]”).
22
Case: 18-11220 Date Filed: 09/10/2019 Page: 23 of 29
What’s more, even if the statement had crossed the line, “[f]or reversible
error to be found in a closing argument, the challenged argument must be ‘plainly
unwarranted and clearly injurious.’” Goldsmith v. Bagby Elevator Co., 513 F.3d
1261, 1282 (11th Cir. 2008) (quoting Peterson v. Willie, 81 F.3d 1033, 1036 (11th
Cir. 1996)). There is no evidence to suggest that Ermini’s lawyer’s statement was
“plainly unwarranted”—again, it seems at the very least to fall within the zone of
statements that we have allowed—let alone “clearly injurious” to Scott’s case. Id.
Moreover, when evaluating the prejudice resulting from an attorney’s comments,
we examine comments in the context of the entire trial and any curative
instruction, United States v. Hernandez, 145 F.3d 1433, 1438–39 (11th Cir. 1998),
and here the district court judge explicitly instructed the jurors that they “must not
be influenced in any way by either sympathy or prejudice for or against either
party,” and that they “must follow the law . . . even if [they] do not agree with it.”
V
Finally, Scott challenges the admission of Lisenbee’s and Hamer’s
testimony about their post-event terminations from the Sheriff’s Office—which all
agree had nothing to do with the incident involving Ermini but which, Scott says,
tended to paint the deputies in a bad light. The district court allowed limited
questioning about the timing of and general reasons for Lisenbee’s and Hamer’s
firings, but it excluded any related documents containing further details. In
23
Case: 18-11220 Date Filed: 09/10/2019 Page: 24 of 29
particular, when examining Lisenbee, Ermini’s lawyer briefly asked whether he
had been dismissed from the Sheriff’s Office; questioning revealed only that
Lisenbee had been a probationary officer at the time of the Ermini incident and that
he hadn’t “me[t his] probationary requirements.” Ermini’s lawyer also confirmed
that Hamer had been fired for “[c]onduct unbecoming” after he “violate[d] a policy
and fail[ed] to disclose it.” That was the extent of the evidence—no additional
details were elicited, no explanatory records or documentation were introduced,
and the remainder of the deputies’ examinations focused on the incident at issue.10
Because the issue at trial was whether Scott was vicariously liable for the
deputies’ own failure to use reasonable care in conducting the wellness check,
Scott contends that allowing Ermini’s lawyer to question Lisenbee and Hamer
about their terminations—even to a limited extent—violated Federal Rules of
Evidence 404(b) and 403. We discuss the application of those rules in turn.11
10
As a result of the judge’s exclusion of any additional evidence surrounding the deputies’
terminations, jurors didn’t learn (1) that Lisenbee’s failure to meet probationary requirements
was partially related to his “inability to control scenes or suspects through verbal commands”
and that he “had started remedial training two weeks before this incident”; or (2) that Hamer was
dismissed after “an unrelated incident where inappropriate materials were found on his work
computer.”
11
We review a district court’s evidentiary rulings for abuse of discretion. United States v.
Brown, 665 F.3d 1239, 1247 (11th Cir. 2011).
24
Case: 18-11220 Date Filed: 09/10/2019 Page: 25 of 29
A
In relevant part, Federal Rule of Evidence 404(b) states that “[e]vidence of a
crime, wrong, or other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). The rule’s language is broad—it applies to
any “person[,]” not just to plaintiffs, defendants, or parties. Even so, we have held
in both the civil and criminal contexts that Rule 404(b) does not—at least of its
own force—apply when, as here, the challenged other-bad-acts evidence implicates
a witness or another non-party to the litigation. See United States v. Morano, 697
F.2d 923, 926 (11th Cir. 1983) (concluding, in a criminal case, that “Rule 404(b)
does not control” in instances where the evidence in question does not relate to acts
of the defendant, but rather to “an extraneous offense committed by someone other
than the defendant”); Glados, Inc. v. Reliance Ins. Co., 888 F.2d 1309, 1311–12
(11th Cir. 1987) (citing and applying Morano in the context of a civil case).
As we did in United States v. Sellers, we once again “question Morano’s
reasoning,” which seems to us to flatly contradict Rule 404(b)’s clear text:
The plain language of Rule 404(b) refers to “persons,” not
“defendants,” and Rule 404(a) carves out specific exceptions relating
to the “accused,” “victim[s],” and “witness[es].” Where, as
in Morano and this case, the non-defendant’s “extraneous” act, if
proved, directly supports the guilt of the defendant as to the crime
charged, that “extraneous” act should not, it seems, be subject to proof
through the improper character-evidence route condemned by Rule
25
Case: 18-11220 Date Filed: 09/10/2019 Page: 26 of 29
404. Indeed, it is difficult to see how the non-defendant’s act could be
described as “extraneous” in such circumstances.
906 F.2d 597, 604 n.11 (1990). We recognize, though, as we did in Sellers, that
we are “bound by [Morano] as precedent”—especially as extended to the civil-
litigation context in Glados. Id. And finally we note—more happily, and again as
we did in Sellers—that Rule 404(b)’s non-applicability probably doesn’t make
much of a difference, because “Morano held that the factors articulated in Rule
404 ‘should be considered in weighing the balance between the relevancy of this
evidence and its prejudice under Rule 403.’” Sellers, 906 F.2d at 604 n.11
(quoting Morano, 697 F.2d at 926). “The functional analysis is thus largely the
same”—it just takes place under the auspices of Rule 403 rather than Rule 404(b).
Id.
So we conclude—in accord with existing precedent, but dubitante—that
Rule 404(b) doesn’t apply here, and we turn to consider whether the admission of
evidence pertaining to Lisenbee’s and Hamer’s terminations violated Rule 403 and,
if so, whether the error in admitting it was harmless.
B
Rule 403 states that a court “may exclude relevant evidence if 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. This Court affords district court judges
26
Case: 18-11220 Date Filed: 09/10/2019 Page: 27 of 29
“the broadest discretion in determining whether evidence should be excluded under
Rule 403.” United States v. Costa, 947 F.2d 919, 924 (11th Cir. 1991) (quoting
citation omitted).
Taking Rule 404(b) considerations into account—as Morano and Sellers
require—we think the challenged testimony here could easily be understood to
convey precisely the kind of propensity-based inference that the Rules of Evidence
aim to prevent—namely, that Lisenbee and Hamer were bad cops (why else the
firings?) with a penchant to act badly, just as Ermini alleges they did the night of
the wellness check. Moreover, the circumstances in this case are unique in that
while Scott is the defendant, he is only vicariously so—practically speaking, the
deputies’ actions are on trial. Accordingly, it seems to us that “the policies
underlying Rule 404(b)”—which again, we are instructed to fold into our Rule 403
analysis— are squarely applicable. Morano, 697 F.2d at 926. All things
considered, we think it clear that the prejudicial value of this evidence could be
thought to substantially outweigh its probative value.
That, though, isn’t the end of the inquiry. Even if a district court abuses its
discretion by admitting prejudicial character evidence, evidentiary error “must
[still] rise above the threshold of harmless error” to warrant reversal. Perry v.
State Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir. 1984) (quoting
Wallace v. Ener, 521 F.2d 215, 222 (5th Cir. 1975)). The burden of proving that
27
Case: 18-11220 Date Filed: 09/10/2019 Page: 28 of 29
an error was not harmless rests with the party asserting it, who must establish that
the error “affect[ed his] . . . substantial rights.” Id. “If . . . the error did not
influence the jury, or had but very slight effect, the verdict and the judgment
should stand . . . .” Kotteakos v. United States, 328 U.S. 750, 764 (1946).
Although we think the district court may well have abused its discretion in
admitting Lisenbee’s and Hamer’s testimony, we conclude that any error was
harmless, for several reasons. First, Ermini’s lawyer’s questioning of the witnesses
was brief and was largely limited to generalities about their dismissals; the district
court properly excluded explanatory records and documents, which would have
introduced additional details. Second, Ermini’s lawyer asked all of her witnesses
about their employment history and current job status, save for those who appeared
in uniform and whose status was therefore obvious—so there wasn’t any undue
focus on Lisenbee and Hamer. Third, Lisenbee and Hamer clarified on cross-
examination that they were not terminated—or even disciplined or criticized—as a
result of anything they did (or didn’t do) in connection with the Ermini incident,
and, further, that the Sheriff’s Office never even concluded that they “violated
policy” during the wellness check.
Because we conclude that Scott hasn’t shown that the deputies’ testimony
about their terminations affected his substantial rights, we find no reversible error.
28
Case: 18-11220 Date Filed: 09/10/2019 Page: 29 of 29
VI
For the foregoing reasons, we hold (1) that it wasn’t improper for the district
court to inform the jury about the legal effect of its finding under Florida’s alcohol
defense; (2) that Ermini didn’t present a nonexistent negligent-use-of-force claim
and that her negligent-wellness-check claim wasn’t precluded; (3) that Ermini’s
lawyer didn’t make a forbidden golden-rule argument; and (4) that any error that
the district court committed in admitting testimony about Lisenbee’s and Hamer’s
dismissals was harmless.12 Accordingly, we affirm the jury’s verdict and the
district court’s judgment, as well as that court’s denial of Scott’s motion for new
trial.
AFFIRMED.
12
Scott also contends that all of these errors, taken together, resulted in cumulative error
sufficient to merit a new trial. Because we find no errors, Scott’s cumulative-error argument
necessarily fails.
29