United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
ROBERT L. MILLER, Jr., District Judge.
The court of appeals affirmed my grant of summary judgment to the defendants with one exception. The court of appeals also reversed Judge Rudy Lozano's dismissal of plaintiff Estate of Nicholas D. Rice's state law claims against one set of defendants; I resolved those claims through a post-remand grant of summary judgment to the defendants. The exception to the affirmance of my order remains for resolution, but the proceedings have slowed because of disagreement over the scope of that exception-in other words, over the scope of the remand.
The court of appeals' decision is found at Rice ex rel. Rice v. Correctional Medical Svcs. , 675 F.3d 650 (7th Cir. 2012), and Part II-A of that opinion-the section of the opinion discussing my error leading to partial remand-is found at 675 F.3d at 663-666. At the first post-remand conference in this court, it became clear that the parties disagreed over the issues and parties remaining in the case. I invited written submissions, and resolved the differences then known, which related to which defendants remained in the case and the state law claims (as well as issues about new summary judgment motions and whether a joint trial should be held). Unfortunately, the scope of the remanded conditions-of-confinement claim wasn't among the disputes identified for resolution.
The final pretrial conference was scheduled for twelve calendar days before the two-week trial. As the final pretrial conference approached, it became glaringly clear to me that the two sides were preparing for very different trials as a result of disparate construction of the appellate opinion. The defendants filed a motion in limine seeking to limit the trial to what they understood to be the proper scope; their motion sought to exclude seven expert witness and seventeen other classes of evidence. The Estate's responses defended its evidence with an entirely different view of what the issues would be at trial. On September 24, immediately after briefing on the defendants' motion in limine was complete (and two days before the final pretrial conference), I granted the motion in limine in its entireity, explaining why I read the appellate opinion as the defendants did, and inviting the parties to use the final pretrial conference to discuss the trial date. At that conference, I granted the Estate's motion to continue the trial (over the defendants' objection) and scheduled a five-day trial limited to the issues the defendants and I understood to have been remanded for trial.
At the same conference, the Estate asked me to certify for appeal, under 28 U.S.C. § 1292(b), my September 24 ruling on the defendants' motion in limine and the earlier summary judgment ruling on the state law claim. I invited letter briefs to allow a quick, but informed, decision. The defendants submitted one such brief, and the Estate submitted two.
The Estate's request is made possible by 28 U.S.C. § 1292(b), which allows a district court, under appropriate circumstances, to certify a question for a permissive appeal. The court of appeals can then accept jurisdiction over the appeal pursuant to Fed. R. App. P. 5, creating an exception to the general rule that a final judgment is a prerequisite for an appeal. 28 U.S.C. § 1292(a). The permissive appeal requires approval of both the district court and the circuit court. Both courts must find that the proposed appeal presents a question of law, that the question of law is controlling, that the question of law is contestable, and the resolution of the question promises to speed up the litigation. Ahbrenholtz v. Board of Trustees of Univ. of Illinois , 219 F.3d 674, 675 (7th Cir. 2000).
Ordinarily, it's best to treat each of these four components of appealability under § 1292(b) separately, but the unusual posture of this case enlaces the factors to the point they are best discussed together.
Under § 1292(b), the court of appeals reviews an order, not whatever the district court tries to certify. Yamaha Motor Corp., U.S.A. v. Calhoun , 516 U.S. 199, 205 (1996). The most salient characteristic of the Estate's request for certification is that the September 24 order the Estate seeks to challenge is the grant of a motion in limine. A ruling on a motion in limine is interlocutory, see Clarett v. Roberts , 657 F.3d 664, 669-671 (7th Cir. 2011), unless the court "rules definitely on the record." Fed.R.Evid. 103(a)(2); see, e.g., Wipf v. Kowalski , 519 F.3d 380, 385 (7th Cir. 2008). I haven't made a definitive ruling on the admissibility of the classes of evidence listed in the defendants' motion in limine. My general practice is to make orders in limine interlocutory, requiring only that counsel not raise the issues within the jury's hearing until we can discuss it again outside the jury's hearing. This allows me to reconsider the probative value of a piece of evidence as trial developments occur. See, e.g., Farfaras v. Citizens Bank and Trust of Chicago , 433 F.3d 558, 564-565 (7th Cir. 2006). That approach seems sound in this case: evidence that would be relevant only to some slowly evolving conditions-of-confinement claim not considered by the court of appeals might (or might not) be relevant to the issue of damages arising from deliberate indifference to Mr. Rice's cell and hygiene.
So the record stands now, the Estate seeks an interlocutory appeal of an interlocutory order. My view of the scope of the issue remanded to me (as distinct from the admissibility of evidence) might well be definitive, but § 1292(b) doesn't allow permissive appeals of opinions or general views; only an order is reviewable.
This order is designed to be subject to change during trial. It's difficult to describe any such order as "controlling", since it might not even control what evidence is admitted at trial.
A permissive appeal must involve a question of law. Generally, that requirement looks for interpretative questions under statutes, the constitution, regulations, see Ahrenholz v. Trustees, 219 F.3d at 676, and even new and lightly examined tests under the civil rules. In re Text Messaging Antitrust Litigation , 630 F.3d 622, 626 (7th Cir. 2010). A question of law is one the circuit court can resolve "quickly and cleanly without having to study the record." Ahrenholz v. Trustees, 219 F.3d at 677; In re Text Messaging , 630 F.3d at 626 ("in this case there is no question of huntng through a record or immersing ourselves in a complicated contract").
It's enticingly simple to suggest that in this case, the court of appeals would simply need to look over its opinion and tell us all what the opinion meant to accomplish-no record spelunking required. But again, the order the Estate wants to appeal is an order in limine. The court of appeals might need no more than an hour to say whether its opinion remanded a bigger chunk of the Estate's overall claims than the defendants and I think. But it would be another matter altogether for the court of appeals to decide, for example, whether the scope of the remand was such that Dr. Kathryn Burns should be allowed to testify about the adequacy of medical and psychiatric care that people other than these defendants provided to Mr. Rice while he was in the county jail and whether that care fell within acceptable professional standards. It would be another matter altogether for the court of appeals to decide whether, in light of the scope of the remand, the Estate should be allowed to present evidence of the county jail population, or the lack of video recordings, or a razor cut on Mr. Rice's neck. Those questions entwine the rules of evidence with the facts of the case. I have found no case in which a permissive appeal of a twenty-four-point order in limine was held to present "a question of law."
As the first gatekeeper through which a § 1292(b) appeal must pass, I am encouraged to explain for the appellate court's benefit why I think "the case satisfies the statutory criteria." Matter of Hamilton , 122 F.3d 13, 14 (7th Cir. 1997). I try never to denigrate any party's argument, but even if we focus only on the scope of the remand and ignore what was actually ordered, I would be hard-pressed to say, much less explain why, the proposed appeal presents a "contestable" issue.
I've been unable to decipher precisely how the Estate reads the appellate opinion. From the Estate's pretrial submissions-its trial brief and its responses to the defendants' motion in limine and to the Estate's witnesses and exhibits-it appeared that the Estate thought everything that happened to Nicholas Rice while in the Elkhart County Jail could be shoehorned into a conditions-of-confinement claim. As I understood the Estate, the jury was to hear (for example) about alleged deliberate indifference to serious medicals needs presented by Mr. Rice's schizophrenia, and about alleged deliberate indifference to the need to protect Mr. Rice from attacks by other inmates, and about alleged due process violations by punishing pretrial detainee Nicholas Rice. As I understood the Estate, the jury also would hear about Mr. Rice's death in jail custody and the ...