Ricky Hall v. Jaeho Jung ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-2102
RICKY HALL,
Plaintiff-Appellant,
v.
JAEHO JUNG,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 7645 — John Z. Lee, Judge.
ARGUED FEBRUARY 25, 2016 — DECIDED APRIL 12, 2016
Before BAUER, MANION, and KANNE, Circuit Judges.
BAUER, Circuit Judge. More experienced attorneys often
stress to younger attorneys the importance of preserving the
record during trial. This case illustrates the importance of not
only preservation of the record but also of compliance with
procedural rules. Plaintiff-appellant, Ricky Hall, appeals from
a jury verdict in favor of defendant-appellee, Chicago Police
Officer Jaeho Jung. Hall challenges four of the district court’s
rulings on evidentiary issues. Because Hall failed to provide us
2 No. 15-2102
with transcripts memorializing the proceedings regarding
three of the four rulings, we are precluded from reaching the
merits of Hall’s claims on those rulings. Hall’s fourth challenge
does not warrant reversal.
I. BACKGROUND
On February 19, 2012, Officer Jung was working as an
officer with the Chicago Police Department on an overnight
shift with his partner, Officer Jeffrey Jones. While on patrol in
a marked police car in the area of 79th Street and Stony Island
Avenue, the officers approached a food vendor named the
“Maxwell Street Hot Dog Stand” and saw a woman run into
traffic waving her hands to get their attention. Officer Jung
stopped the car and saw the woman’s face covered in blood.
The woman told the officers that her name was Ashley Woody
and that her husband had just pushed her and struck her in the
face. Woody pointed west toward Stony Island Avenue, where
Hall was standing, to identify her husband.
Officer Jung turned the car around, parked, and walked
towards Hall. Hall was irate, screaming and swearing at
Woody. Officer Jung approached Hall and attempted to calm
him down. Hall moved away from Officer Jung and continued
to scream profanities. Hall did not comply with Officer Jung’s
commands to “stop, put his hands behind his back, calm down,
[and] stop screaming.”
Officer Jones also approached Hall and grabbed Hall’s right
side. Hall attempted to twist away from Officer Jones by
swinging his body to the left. The momentum Hall generated
caused him to fall to the ground. Officer Jung used the oppor-
tunity to perform an arm bar and wrist lock on Hall in order to
No. 15-2102 3
place him into handcuffs. Officer Jones testified that he felt the
need to perform an emergency takedown because Hall was
actively resisting arrest and attempting to flee.
After he was placed in handcuffs, Hall started kicking his
legs in an attempt to roll onto his side and get up from the
ground. Officer Jung crisscrossed Hall’s legs to prevent him
from kicking. The officers then picked Hall up into a standing
position in order to get him into the squad car.
Hall continued to resist. He took some steps forward,
twisted his body, and fell to the ground, landing on his left
arm. Eventually, the officers were able to get Hall to the police
station.
At no time during the arrest did Hall complain of pain in
his arm or indicate that he thought his arm was injured or
broken. Several hours later at the police station, Hall com-
plained that his arm hurt; he was taken to the hospital, where
doctors discovered his left arm was fractured. The entire arrest
of Hall was captured on video by one of the hot dog stand’s
surveillance cameras. The Cook County State’s Attorney filed
criminal charges against Hall for resisting arrest, to which
charge Hall pleaded guilty.
Hall filed suit against Officer Jung and Officer Nicholas
White in state court. He claimed excessive force and counts of
assault and battery pursuant to state law against each of the
defendants. The defendants removed the case to federal court.
The district court granted Officer White’s motion for summary
judgment, and that ruling is not part of this appeal.
4 No. 15-2102
Hall’s excessive force claim against Officer Jung proceeded.
During discovery, the magistrate judge set a deadline of
July 31, 2014, for Hall to disclose his expert witness pursuant
to Federal Rule of Civil Procedure 26(a)(2). While Hall identi-
fied his expert witness as William T. Gaut, Ph.D. by the July 31
deadline, he failed to provide the expert’s report. Officer Jung
moved to strike Hall’s disclosure for failing to comply with
Rule 26(a)(2) requirements. Hall did not file a response to
Officer Jung’s motion to strike. The magistrate judge granted
Officer Jung’s motion and barred Hall from presenting
Dr. Gaut as an expert witness at trial.
Officer Jung also disclosed the name of an expert witness;
however, prior to the deadline for his Rule 26(a)(2) disclosure,
he withdrew the expert witness, electing to proceed to trial
without expert witness testimony. After the magistrate judge
closed discovery, Hall filed a motion to proceed with a rebuttal
expert witness, Dr. James A. Williams. The magistrate judge
denied the motion, finding that rebuttal was unnecessary since
there would be no expert opinions to rebut.
Next, Officer Jung moved in limine to preclude Hall from
presenting testimony from his wife Woody. Officer Jung had
been unable to subpoena Woody to take her deposition,
because the address provided by Hall for Woody was actually
a vacant lot. The district court held off ruling to give Hall an
opportunity to produce Woody for her deposition. Hall
secured Woody’s appearance, and her deposition was com-
pleted.
Jury trial began on April 20, 2015. Officer Jung testified as
an adverse witness during Hall’s case-in-chief. Then when Hall
No. 15-2102 5
was to call Woody, she was not present in court; Hall moved
to introduce the transcript of Woody’s deposition in lieu of live
testimony under Federal Rule of Civil Procedure 32(a)(4)(C),
representing that Woody did not appear because “she had a
medical emergency with her daughter.” The district court told
Hall to call Woody the next day; Woody failed to appear that
day as well, reporting to Hall’s counsel that “her feet and legs
[were] numb and she [could not] get out of bed.” Officer Jung
objected to the proposed introduction of her deposition
testimony.
The district court denied Hall’s motion, declining to accept
Woody’s excuses without additional evidentiary support. The
district court expressed concerns regarding Woody’s credibility
“given the history of [the] case and the factual developments
in [the] case.” Specifically, Woody had testified at her deposi-
tion that she did not approach the officers and did not have
blood on her face. The district court found Woody’s credibility
to be a “substantial factor” in the issues for determination at
trial, and that admitting Woody’s deposition testimony would
thwart the jury’s ability to determine her credibility.
Hall also moved during trial, pursuant to Rule 32(a)(4), to
admit the deposition testimony of Dr. Grate Bell, Hall’s
emergency room treating physician. By his own representa-
tions, Hall’s counsel had failed to secure Dr. Bell’s appearance.
On the day that Dr. Bell was to testify, Hall’s counsel called the
hospital and was informed that Dr. Bell was not working that
day. The district court denied Hall’s motion to admit Dr. Bell’s
deposition testimony, finding Dr. Bell was not “unavailable”
according to Rule 32(a)(4)’s requirements. The district court
6 No. 15-2102
found that Hall had subpoenaed Dr. Bell, and that Hall had the
duty to secure her appearance.
Hall also attempted to have admitted his medical records
through his own testimony.1 The medical billing records were
admitted, and the district court allowed the remaining medical
records to come in only for a limited purpose—to show the
treatment Hall received—but “not for the truth of the matter
asserted in those records.” Hall also offered the remaining
medical records into evidence via the testimony of Dr. David
Stasior, who had treated Hall at Cook County Hospital on the
date of his arrest. The district court admitted those records
pertaining to Dr. Stasior’s treatment and allowed Dr. Stasior to
testify about his treatment of Hall. It excluded the medical
records prepared by another hospital and not involving
Dr. Stasior.
Finally, during closing argument, counsel for Officer Jung
made a comment to the jury regarding the absence of Hall’s
family and friends as witnesses at trial. Counsel said: “[Hall]
told you, those people that you could see standing off to the
side in the video, that’s his family. Those are his friends. Did
any one of them come in to testify what happened to
1
We take the facts presented here pertaining to Hall’s attempts to have
admitted into evidence his medical records and the comment that Officer
Jung’s counsel made during closing argument from Officer Jung’s appellate
brief. Hall failed to comply with Federal Rule of Appellate Procedure 10 by
failing to provide us with a complete trial transcript. As such, we have no
transcripts memorializing those proceedings dealing with the admission
and/or exclusion of Hall’s medical records and the closing arguments.
No. 15-2102 7
Mr. Hall?” Hall’s counsel objected and moved for a mistrial.
The district court denied Hall’s motion.
After hearing all of the evidence, including watching the
surveillance video and hearing Officer Jones’ testimony, the
jury found in favor of Officer Jung.
II. DISCUSSION
Hall seeks reversal of the jury verdict based on four
evidentiary rulings of the district court. Specifically, he argues
that the district court erred when it: (1) prohibited Hall from
presenting his expert witness in rebuttal of the officers’
testimony; (2) excluded most of Hall’s medical records;
(3) excluded the deposition testimony of Woody and Dr. Grate
Bell; and (4) denied Hall’s motion for mistrial based upon
comments made by Officer Jung’s counsel during closing
argument. Three of Hall’s claims fail on procedural grounds
because he failed to provide a transcript memorializing the
proceedings and the district court’s analysis and rulings on
those issues. Hall’s remaining claim fails on the merits.
We address first Hall’s claims that fail on procedural
grounds. These claims pertain to the exclusion of Hall’s
rebuttal expert witness testimony, exclusion of Hall’s medical
records, and the comments made by Officer Jung’s counsel
during closing argument. Typically, we would review the
district court’s decisions with regard to these three issues for
abuse of discretion. Because Hall failed to submit trial tran-
scripts memorializing Hall’s motions and the decisions of the
district court, we are unable to review the district court’s
decisions on the merits of these issues. Fed. R. App. P. 10(b).
Hall argues that the district court erred by prohibiting him
8 No. 15-2102
from offering opinion testimony from his expert witness to
rebut the officers’ testimony. Prior to trial, but after discovery
closed, Hall moved to permit testimony of an expert witness,
Dr. James A. Williams, whom Hall had not previously dis-
closed via his Rule 26(a)(2) disclosure. The magistrate judge
denied the motion because Officer Jung had withdrawn his
expert witness and would not be offering any expert opinions
at trial. Hall contends here for the first time that he needed
expert opinion testimony to rebut the expert testimony of the
officers (rather than an expert witness disclosed by Officer
Jung), and that the district court erred by precluding such
testimony without conducting a hearing pursuant to the
standards enunciated in Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993).
The partial record before us shows that Hall did not move
to admit expert testimony in rebuttal of the officers’ testimony
and did not move for a Daubert hearing. Either Hall failed to
make the motion or failed to provide us with the transcript
memorializing the motion. If Hall failed to make the motion, he
has waived the argument on appeal. Smith v. Bray, 681 F.3d
888, 902 (7th Cir. 2012) (citation omitted) (arguments made for
first time on appeal are waived). If he failed to provide us with
the transcript memorializing his motion, he has forfeited his
argument. Hicks v. Avery Drei, LLC, 654 F.3d 739, 743–44 (7th
Cir. 2011) (citations omitted) (appellant’s failure to abide by
Fed. R. App. P. 10 and provide sufficient record for meaningful
review by appellate court renders argument forfeited); see also
Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714,
731 n.10 (7th Cir. 2003).
No. 15-2102 9
While we have held that an unconditional ruling on a
pretrial motion generally preserves the issue for appeal, an
unconditional ruling “resolves only the arguments actually
presented.” Wilson v. Williams, 182 F.3d 562, 567 (7th Cir. 1999)
(“[o]nly arguments that were actually presented to the district
court before trial are preserved for appeal”). Because Hall’s
pretrial motion addressed only expert testimony in rebuttal of
expert testimony (and not in rebuttal of the officers’ lay witness
testimony), it does not preserve the issue for appeal.
Second, Hall complains that the district court erred in
excluding his medical records. However, as mentioned above,
Hall failed to provide us with a complete trial transcript, and
the excerpts he has provided do not contain the proceedings
referring to his attempt to admit any medical records. Because
there are no transcripts or documents contained in the record
reflecting the proceedings, including the district court’s
reasoning or analysis in rendering its decisions with regard to
the admission or exclusion of the medical records, any mean-
ingful review on our part is precluded. Hicks, 654 F.3d at
743–44 (citations omitted).
Third, Hall also complains that the district court committed
reversible error when it denied his motion for a mistrial based
upon a comment of Officer Jung’s counsel during closing
argument. Again, Hall has failed to provide us with a trial
transcript or any excerpts reflecting closing arguments. Nor
does the record contain the district court’s ruling and analysis
on this issue; thus we are unable to engage in any meaningful
review. Id.
10 No. 15-2102
We now turn to the sole issue we can address on the merits.
Hall complains the district court erred when it excluded the
deposition testimony of two of his witnesses. The first witness
was Woody, Hall’s wife. Hall’s counsel informed the district
court on the day scheduled for her testimony that Woody
failed to appear because she “had a medical emergency with
her daughter.” Woody failed to appear the following day as
well; Hall’s counsel represented that “[Woody’s] feet and legs
[were] numb and she [could not] get out of bed.” Hall moved
to admit Woody’s deposition testimony under Rule 32(a)(4)(C),
which the district court denied.
The second witness was Dr. Grate Bell. Although Hall
successfully subpoenaed Dr. Bell, he failed to ensure her
appearance at trial. Hall likewise moved to admit the doctor’s
deposition testimony under Rule 32(a)(4) generally, which the
district court also denied.
Rule 32(a)(4) allows a party to use deposition testimony in
lieu of live testimony at trial against another party when the
court finds the proffered witness is unavailable. A witness is
unavailable under four circumstances: (1) the witness is dead;
(2) the witness is more than 100 miles from the courthouse;
(3) the witness is unable to testify due to “age, illness, infirmity,
or imprisonment”; or (4) the party moving for admission of the
deposition testimony “could not procure the witness’s atten-
dance by subpoena.”2 Fed. R. Civ. P. 32(a)(4). We review a
2
Subsection (E) of Rule 32(a)(4), which provides for use of deposition
testimony upon formal motion with appropriate notice in “exceptional
circumstances,” is inapplicable in this case as Hall did not request the
(continued...)
No. 15-2102 11
district court’s ruling on a motion to admit deposition testi-
mony for abuse of discretion only. Griman v. Makousky, 76 F.3d
151, 153 (7th Cir. 1996).
The district court did not abuse its discretion in excluding
the deposition testimony of either Woody or Dr. Bell. With
regard to Woody, Hall specifically cited Rule 32(a)(4)(C) and
Woody’s “illness” as the basis for the admission. In denying
Hall’s motion, the district court gave a detailed, well-reasoned
analysis. It considered Woody’s performance and truthfulness
in the proceedings up to that point. It noted that Officer Jung
had difficulty in serving Woody with a subpoena, since the
address provided by Hall was in fact a vacant lot. It indicated
that a material point in the litigation was whether Woody was
the woman who waved down the officers on the night of Hall’s
arrest, as Woody had testified at her deposition that she was
not the woman who stopped the officers. The district court
reasoned that because Woody’s credibility was critical to the
assessment of her testimony, Officer Jung would be severely
prejudiced by his inability to rebut her deposition testimony.
In Woody’s absence, Officer Jung would be unable to testify
that Woody was in fact the woman who approached his police
car with blood on her face. Further, the jury’s province of
assessing Woody’s credibility via live testimony would be
divested if Woody’s deposition testimony were read into the
record. The district court recognized its discretion and exer-
cised it in denying Hall’s motion after thoroughly considering
2
(...continued)
admission of Woody’s or Dr. Bell’s deposition testimony via noticed
motion.
12 No. 15-2102
the possible ramifications and prejudice that would result from
substituting Woody’s deposition testimony for live testimony.
The district court did not abuse its discretion in excluding
Woody’s deposition testimony.
Nor did the district court abuse its discretion in excluding
Dr. Bell’s deposition testimony. The district court found that
Dr. Bell was not unavailable under any of the categories under
Rule 32(a)(4). The district court reasoned that Hall successfully
subpoenaed Dr. Bell and simply failed to secure her presence.
The district court even offered to allow Hall to have Dr. Bell
testify at a later point in the trial if Dr. Bell appeared. The
record indicates that Hall failed to obtain Dr. Bell’s schedule
and ensure she would attend the trial. No basis for the doctor’s
absence that would qualify as unavailability under Rule
32(a)(4) is included in the record. The district court did not
abuse its discretion in excluding the deposition testimony.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.