First Midwest Bank v. City of Chi. (337 F. Supp. 3d 749, 2018)

United States District Court for the Eastern District of Illinois 2018-08-29

Crimes and Criminal Procedure Judiciary and Judicial Procedure

Citations

Full opinion text

Harry D. Leinenweber, Judge

After seven years of litigation and a month-long trial, a jury found in Plaintiff Michael LaPorta's favor on his claim that the City of Chicago had de facto policies that sustained serious flaws in its police force, namely: failing to investigate officers accused of misconduct; failing to discipline officers who deserved it; and failing to maintain an adequate Early Warning System to identify and correct problematic behavior. The jury further found that the last two of those policies constituted the moving force behind a January 2010 incident in which CPD Officer Patrick Kelly shot LaPorta in the head, causing severe and lasting injuries. For these injuries, the jury awarded LaPorta $44.7 million in damages. Before the Court are the parties' post-trial motions. Going forward, this opinion presumes familiarity with this Court's other rulings in this case, especially LaPorta v. City of Chicago , 277 F.Supp.3d 969 (N.D. Ill. 2017) (summary judgment ruling) and LaPorta v. City of Chicago , 102 F.Supp.3d 1014 (N.D. Ill. 2015) (motion to dismiss ruling).

I. CHICAGO'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW

Federal Rule of Civil Procedure 50(a) allows a district court to enter judgment against a party who has been fully heard on an issue during a jury trial if "a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." FED. R. CIV. P. 50(a)(1). Under the stringent judgement-as-a-matter-of-law standard, the court construes the facts strictly in favor of the party that prevailed at trial. Schandelmeier-Bartels v. Chi. Park Dist. , 634 F.3d 372, 376 (7th Cir. 2011) (citations omitted). "Although the court examines the evidence to determine whether the jury's verdict was based on that evidence, the court does not make credibility determinations or weigh the evidence." Id. (citations omitted). However, the court disregards all evidence favorable to the moving party that the jury is not required to believe. Harvey v. Office of Banks & Real Estate , 377 F.3d 698, 707 (7th Cir. 2004) (citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). At bottom, the court determines whether a rational jury could have found for the plaintiffs. Id. (citation omitted).

A. Failure to Prove Constitutional Violation

The City recycles its first JMOL argument from the summary judgment stage, contending once more that LaPorta's theory of liability cannot get off the ground given that under DeShaney v. Winnebago County Department of Social Services , 489 U.S. 189, 201-02, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), local governments cannot be liable for failing to prevent due process violations effected by private actors. Simply enough, the City contends that Kelly acted only as a private citizen during the evening in question, and as such his coincidental profession plays no part in the liability analysis. But as the Court already described, this misses the mark by mischaracterizing LaPorta's claim. See LaPorta v. City of Chicago , 277 F.Supp.3d 969, 986-87 (N.D. Ill. 2017) (denying summary judgment to City on same argument). LaPorta's Monell claim asserts that it is the City itself-and not Kelly-that supplies the "color of law" requirement under § 1983. See Gibson v. City of Chicago , 910 F.2d 1510, 1519 (7th Cir. 1990) (describing analogous Monell claim). Under LaPorta's theory, "the City's policies caused the harm." Cazares v. Frugoli , No. 13 C 5626, 2017 WL 1196978, at *14 (N.D. Ill. Mar. 31, 2017). Such a claim is not appropriately considered under DeShaney , and as such the City's objection predicated upon the same cannot defeat LaPorta's claim nor entitle the City to judgment as a matter of law. See Obrycka v. City of Chicago , No. 07 C 2372, 2012 WL 601810, at *5-6 (N.D. Ill. Feb 23, 2012) (St. Eve., J.).

B. Evidence of Kelly's Reckless Indifference

The City argues in the alternative that even if DeShaney does not apply, LaPorta failed to produce sufficient evidence that Kelly acted intentionally or with reckless indifference when he shot LaPorta. (Chicago also argues that the "reckless indifference" standard has no place in the due process analysis; the Court dispatches this argument below at Part II.A.2.) First, LaPorta presented expert testimony undermining Kelly's version of events (Balash Tr. 1879:12-1880:11 (explaining that contrary to Kelly's statement that LaPorta picked up and cocked the gun, said model cannot be manually cocked in the manner Kelly described), 1887:6-21 (expressing disbelief at Kelly's story that his firearm had twice malfunctioned during Kelly's recruit school training) ), and concluding that the shooting was no suicide (id. 1892:1-1912:13 (describing the evidence and concluding that Kelly shot LaPorta) ). The jury also heard evidence from Defendant's witnesses that undermined the case for this being an accidental shooting. (See Brudenell Tr. 2689:18-21 (agreeing that the shooting did not occur as a result of someone dropping the gun); Wyant Tr. 2641:19-2642:3 (testifying that he had never heard of a Sig Sauer P226-the model of Kelly's firearm-misfiring).) Moreover, Kelly took the stand. On cross-examination, LaPorta's counsel asked whether Kelly removed the gun from its holster, held it in his hand, and then pulled the trigger and shot LaPorta in the head. Kelly responded by invoking the Fifth. As this is a civil case, the jury was permitted to take an adverse inference from Kelly's invocation. See Hillmann v. City of Chicago , 834 F.3d 787, 793 (7th Cir. 2016) (citations omitted); see also infra at Part II.B.1.

Beyond all this, the City objects that LaPorta never painted a clear enough picture of Kelly's alleged motive in carrying out this shooting. But LaPorta did not have to prove motive to prevail in this case, and the circumstantial evidence adduced at trial certainly forms a sufficient basis for a reasonable jury to find that Kelly deliberately or with reckless indifference shot LaPorta in the head. See Harvey , 377 F.3d at 707.

C. Failure to Maintain an EWS

LaPorta presented substantial evidence of the City's failure to maintain an Early Warning System. This evidence included the findings from an April 2016 report put out by the City-created Police Accountability Task Force ("PATF"), which noted that:

No dedicated system exists to identify and address patterns or practices. While they are charged with investigating police misconduct, IPRA [the Independent Police Review Authority] and BIA [the Bureau of Internal Affairs] historically have not engaged in efforts to identify officers whose records suggest repeated instances of misconduct or bias. They also historically have not engaged in efforts to identify broader patterns or practices either of misconduct. The persistent failure of IPRA and BIA to examine pattern and practice evidence substantially contributes to the police accountability vacuum in Chicago.

(Tr. 2356:18-2357:3.) Alderman Moore, a member of the Chicago City Council, concurred with these findings. (Moore Tr. 887:23-888:15.) In the same vein, a January 2017 report issued by the DOJ and the U.S. Attorney's Office for the Northern District of Illinois observed that:

The lack of a functional early intervention system coupled with inadequate supervision has placed officers and members of the public at risk. These longstanding systemic deficiencies in CPD's early intervention systems have prevented CPD from taking two steps that are crucial to ensuring officer safety and wellness as well as ensuring policing that is effective and lawful. First, CPD does not adequately and accurately identify officers who are in need for this type of action and, second, CPD does not consistently or sufficiently address officer behavior where CPD identifies negative patterns. Because of these failures, CPD officers are able to engage in problematic behavior with impunity which can and do escalate into serious misconduct. This has dramatic consequences for the public.

(Tr. 2249:1-15.)

Chicago takes issue with the PATF and DOJ reports, arguing that neither zeroes in on the proper time frame-that being the few years preceding the 2010 shooting, when perhaps some intervention could have changed Kelly's behavior and thus averted LaPorta's injury all together. This rejoinder is not as effective as Chicago hopes. First, as described in greater detail below, the PATF report reviewed CPD records dating back to 2007, and the DOJ report referred in sweeping terms to "longstanding" and "systemic" deficiencies in CPD policies. (See infra at Part II.B.3.) And second, LaPorta developed evidence beyond these reports that back up his contention that Chicago lacked an effective EWS during the pertinent years. Tisa Morris, the former chief administrator for the Office of Professional Standards, testified that during her tenure from 2004 to 2007, she was not aware of any system in place to identify and discipline repeat offenders. (Id. 1163:18-20, 1176:25-1177:1, 1229:24-1230:9.) Lou Reiter, LaPorta's police-practices expert, backed up the ineffective-EWS conclusion as well, stating that during his 25 years working with CPD, he observed "historic and systemic deficiencies ... in the areas of administrative investigations, or CR investigations, and not implementing an early warning system and of condoning or encouraging the code of silence." (Reiter Tr. 306:8-17.)

Chicago also tries to rebut LaPorta's evidence by explaining that the City maintained two systems during the pertinent time frame: The Behavioral Intervention System and the Personal Concerns Program, which together comprised an EWS. But Reiter cast doubt on the efficacy of these systems, explaining that they were used very rarely. (See, e.g. , Reiter Tr. 328:22-329:10 (testifying that because the odds of being put into BIS were "negligible," BIS provided officers no deterrent for bad conduct).) Ultimately, this, as well as Chicago's other objections to the strength of LaPorta's case, go to the weight of the evidence presented. But weighing the evidence is a task for the jury, and one that it reasonably carried out. The Court will not second-guess their determination. That is not the Court's role. See Schandelmeier-Bartels , 634 F.3d at 376. Chicago's renewed JMOL Motion is denied in relevant part.

D. Failure to Discipline

In the second version of LaPorta's Monell claim, he charges that Chicago had a widespread practice of failing to discipline adequately those officers who committed misconduct. The jury was persuaded by this theory also. As above, the City claims the jury spoke in error, that LaPorta failed to adduce sufficient evidence to permit a reasonable jury to find in his favor on this theory. Once more, the Court disagrees.

The PATF report presented at trial painted a bleak picture of CPD's disciplinary practices. In many cases, the report found that officers are simply not disciplined for sustained complaints. (Tr. 2349:14-21.) That owes in part to an "opaque, drawn-out, and unscrutinized disciplinary process" that frequently enables officers "to avoid meaningful consequences." (Id. 2349:18-21.) The report also called that process "haphazard," "unpredictable," and "arbitrary." (Id. 2245:6-7, 2354:18-19.) Contrary to Chicago's objection described above, the report focused on the relevant time frame, examining data from 2007 through 2010. (Id. 2349:6-2360:17; Emanuel Statement Tr. 249:3-251:24.) Beyond this, LaPorta held out evidence of Kelly's disciplinary record as an exemplar. Kelly accumulated eighteen CRs in the five years prior to the shooting. But according to Reiter, Kelly was not properly disciplined for any of these complaints. (Reiter Tr. 318:2-15.)

From this evidence, a reasonable jury could conclude that the City had a practice of failing to discipline officers adequately. That is all LaPorta must now show to prevail against the City's renewed JMOL Motion. The Motion is denied in relevant part.

E. Failure to Investigate

Finally, LaPorta argued, and the jury agreed, that the City had a widespread practice of not only failing to discipline malfeasant officers, but also of failing to investigate misconduct in the first place. LaPorta's statistics expert testified that 46% of the complaints filed from 2004 to 2011 concluded with a finding of "no affidavit" and were not investigated. (Rothman Tr. 2199:7-21.) Chicago rebuts that this number is unfairly inflated: State law blocks investigation into such unsupported complaints, Chicago explains, so the City's nonfeasance results from legal proscription and not from some anti-investigatory policy. But 50 ILCS 725/6, the state law Chicago relies upon, clearly applies only in the absence of an on-point collective bargaining agreement between the City and the Fraternal Order of the Police. There is such an agreement here. (Reiter Tr. 387:12-19 (describing the collective bargaining agreement).) That agreement loosens the state law stranglehold on police-conduct investigations by permitting the chief administrators of IPRA and BIA to override the affidavit requirement where such override is deemed "necessary and appropriate." (Id. ) And according to Former CPD Commander Eugene Roy, CPD supervisors can recommend that investigations proceed even when the complaint is not supported by sufficient evidence. (Roy Tr. 955:7-10.) These workarounds permit Chicago to investigate no-affidavit complaints, but the City rarely does so. (See Reiter Tr. 387:9-19 (reciting from PATF report that the IPRA/BIA override is rarely used and not to the extent it could and should be).) Indeed, the DOJ report explains that such overrides are not encouraged among IPRA investigators, and those investigators are not trained on how to obtain such overrides anyway. (Tr. 2246:8-16.)

To any extent, the City's failures to investigate extend beyond its high rate of nonfeasance vis-à-vis those complaints unsupported by affidavit. As the DOJ report concluded, "The City does not investigate the majority of cases it is required by law to investigate.... Those cases that are investigated suffer from serious investigative flaws that obstruct objective fact finding." (Tr. 2242:25-2243:5.) The report further stated that the City's investigative techniques are often biased, and the concluding reports are often drafted in a manner favorable to the officer by omitting conflicting or contrary evidence. (Tr. 2358:12-21.) The PATF report propounded similar findings. (See, e.g. , Tr. 2357:12-14 ("Since its inception, IPRA has had the power to examine patterns of complaints when investigating police misconduct but has not exercised it.").)

The City fails to muster any other argument on this score that goes to the sufficiency of the evidence rather than to its weight. As such, a reasonable jury could have concluded, as did the jury here, that Chicago had a widespread policy or practice of failing to investigate officer misconduct. The City's renewed JMOL Motion is thus denied in relevant part.

F. Deliberate Indifference

To place the next building block in LaPorta's case, he had to demonstrate that the City was deliberately indifferent to the harms that might befall those persons who come into contact with under-trained and under-disciplined officers. See City of Canton v. Harris , 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ("[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact."); Sigle v. City of Chicago , No. 10 C 04618, 2013 WL 1787579, at *2 (N.D. Ill. Apr. 25, 2013) (applying same "deliberate indifference" standard to a failure-to-discipline theory). The jury found the City deliberately indifferent in two respects: first, as to the failure to maintain an adequate EWS, and second, as to the failure to discipline adequately. As elsewhere in its motion, the City contends that no jury could have reasonably reached these conclusions.

The PATF report opined that CPD generally lacks a culture of accountability, "largely because no one in top leadership has taken ownership of the issue." (Tr. 2360:1-4.) It continued: "[a]lthough so-called problem officers are either well-known to their supervisors and CPD's leadership or easily identified, few steps are being taken to proactively manage and redirect those officers' conduct." (Id. 2360:1-17.) That was so even though "[t]he effective tools for providing greater oversight and supervision to officers are well-known and widely used in other jurisdictions." (Id. 2360:1-17.) Alderman Moore, who served as the City Council's 30(b)(6) designee, testified that police misconduct "has been ongoing for a long time, probably as long as we've had a police department.... 180 years." (Moore Tr. 887:15-22.) The Alderman also agreed that IPRA and BIA have not historically engaged in efforts to identify broader patterns or practices either of misconduct or racially biased policing within CPD. (Id. 888:3-15.)

Further, the jury heard testimony that the City Council had been warned about the sore need to ameliorate CPD's deficient policies, including by implementing an effective EWS. In June 2007, the City Council held public hearings concerning the deficiencies of the Office of Professional Standards ("OPS"), the precursor to IPRA. (Moore Tr. 892:15-24.) According to Alderman Moore, the complaints voiced at those hearings contributed to the creation of IPRA. (Id. 893:3-21.) One such complainant expressed his "profound fear" that IPRA would "simply recreate and perpetuate another inadequate and ineffective system like [OPS] that we have suffered with since 1974." (Id. 894:22-895:10.) Moore was present for that hearing; at trial, he told the jury: "We knew there were problems." (Id. )

Taken together, this testimony provides a legally sufficient evidentiary basis to allow a reasonable jury to find that the City knew it lacked an effective EWS and failed to discipline malfeasant officers adequately, and yet took no action to right these deficiencies. That carries LaPorta past the renewed JMOL Motion as far as the deliberate indifference requirement is concerned. FED. R. CIV. P. 50(a).

G. Causation

Though the jury agreed LaPorta had proven three systemic failures-the failures to investigate, to discipline, and to maintain an EWS-the jury found that only the latter two of those failures caused Kelly to shoot LaPorta. (Verdict Form, Dkt. 446.) Chicago challenges those two causation findings.

As the Court earlier observed, "[t]he critical question is whether the City's de facto policies ... were the 'moving force' behind Kelly's actions such that execution of the policies 'inflicts the injuries that the government as an entity is responsible [for] under § 1983.' " LaPorta v. City of Chicago , 277 F.Supp.3d 969, 991 (N.D. Ill. 2017) (quoting Estate of Novack ex rel. Turbin v. Cty. of Wood , 226 F.3d 525, 531 (7th Cir. 2000) ). There must be a "direct causal link" between the alleged policy or practice and the constitutional violation. Id. (quoting Obrycka , 2012 WL 601810, at *9 ). Further, "a finding of culpability simply cannot depend on the mere probability that any officer adequately screened will inflict any constitutional injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff." Bd. of Cty. Comm'rs v. Brown , 520 U.S. 397, 412, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (emphasis in original). The jury concluded LaPorta met these requirements at trial, and the Court will not disturb that finding.

To begin, LaPorta offered evidence demonstrating that the City's policies may generally encourage officers to feel immune from consequences. The PATF report noted that "[w]hen case after high-profile case results in punishment that does not match the gravity of the misconduct, it sends a message that the police can act with impunity.... It also leaves those who break the rules emboldened to continue doing so." (Tr. 2355:6-14.) The DOJ report shared in this conclusion, opining that CPD's failure to identify officers in need of behavioral intervention enabled those officers "to engage in problematic behavior with impunity which can and do[es] escalate into serious misconduct[, which] has dramatic consequences for the public ...." (Id. 2249:8-15.) Alderman Moore agreed with that logic. (Moore Tr. 877:19-23 (remarking that if an officer engaged in misconduct and was not held accountable, he "would feel a little bit more of a freedom to engage in further misconduct"); accord Reiter Tr. 348:18-349:1 (concluding same).)

Beyond this, LaPorta presented testimony that Kelly, specifically, was one such officer emboldened by the City's failure to discipline or correct his behavior via an effective EWS, and that this conditioning led Kelly to shoot LaPorta. The jury heard that Kelly was subject to eighteen complaints and yet was never disciplined or put into an EWS program. True, Kelly was twice referred to the BIS program, but Reiter explained that Kelly never actually attended the counseling those programs recommended for him. (Reiter Tr. 326:3-19.) Two of Kelly's eighteen complaints-one in September 2005 and the other in June 2006-concerned an alcohol-intoxicated Kelly battering personal associates during off-duty time. (O'Neill Tr. 3214:19-3224:25, 3247:2-17.) After the latter incident, an examining psychologist noted that Kelly "may have problems related to alcohol and control" and would benefit from intervention designed to teach him "other ways of resolving conflicts with significant others in his life." (Id. 3255:12-3257:20.) According to the evidence at trial, the City never provided that intervention in any form, be it meaningful entry in an EWS program, discipline, or otherwise. Reiter explained that such repeated failures to investigate and discipline reinforces in officers a sense of impunity that extends to their off-duty behavior (Reiter Tr. 306:7-25), and that CPD's failures with respect to Kelly specifically contributed to his personal sense of impunity. (Id. 325:21-326:2; see also id. 346:5-347:3 (describing that one consequence of lacking an adequate EWS is that officers such as Kelly would be encouraged to act with impunity).)

In sum, this testimony suggested that Chicago's administrative failings were the moving force behind Kelly's actions. Keeping in mind the Court's obligation on a JMOL motion to construe the facts strictly in favor of the party that prevailed at trial, the Court refuses to overrule the jury's causation finding. A reasonable jury could have reached this conclusion; that is enough. Chicago's JMOL Motion is denied.

II. CHICAGO'S MOTION FOR NEW TRIAL

Chicago contends it is entitled to a new trial due to a bevy of errors this Court allegedly committed in instructing the jury and making evidentiary rulings. A motion for a new trial should only be granted where the verdict is against the manifest weight of the evidence, Sauzek v. Exxon Coal USA, Inc. , 202 F.3d 913, 921 (7th Cir. 2000), or where the trial court's evidentiary rulings or jury instructions resulted in prejudicial error, see Glickenhaus & Co. v. Household Int'l, Inc. , 787 F.3d 408, 414 (7th Cir. 2015) ; EEOC v. Mgmt. Hospitality of Racine, Inc. , 666 F.3d 422, 440 (7th Cir. 2012). The district court has great discretion in determining whether to grant a new trial. Valbert v. Pass , 866 F.2d 237, 239 (7th Cir. 1989) (citation omitted). In weighing such motions, the court views all evidence in the light most favorable to the prevailing party, Wipf v. Kowalski , 519 F.3d 380, 384 (7th Cir. 2008), and keeps in mind that "civil litigants are entitled to a fair trial, not a perfect one," Lemons v. Skidmore , 985 F.2d 354, 357 (7th Cir. 1993).

A. Errors in the Jury Instructions and the Verdict Form

District courts enjoy great latitude in choosing the wording of jury instructions. United States v. Bruce , 109 F.3d 323, 328 (7th Cir. 1997) (citation omitted). New trials are not granted for alleged errors in jury instructions unless, considering those instructions in full, "it appears that the jury was misled and its understanding of the issues was seriously affected to the prejudice of the complaining party." McGeshick v. Choucair , 9 F.3d 1229, 1232 (7th Cir. 1993) (citation and internal quotation marks omitted). The verdict form is considered in light of the instructions given. Happel v. Walmart Stores, Inc. , 602 F.3d 820, 827 (7th Cir. 2010).

Federal Rule of Civil Procedure 51 requires litigants to object to jury instructions before the instructions are given. FED. R. CIV. P. 51(b)-(c) ; see LeBlanc v. Great W. Express , 58 F. App'x 221, 223 (7th Cir. 2003) (applying Rule 51 to verdict-form objections). The objection must be "stat[ed] distinctly." FED. R. CIV. P. 51(c)(1) ; see Schobert v. Ill. Dep't of Transp. , 304 F.3d 725, 729 (7th Cir. 2002) (explaining that the objection "must be specific enough that the nature of the error is brought into focus"). Moreover, "it is not enough simply to submit an alternative instruction." Schobert , 304 F.3d at 729 (citation omitted). When a litigant misses its chance to object timely, the tardy objection is reviewed on a plain error standard. See Lewis v. City of Chi. Police Dep't , 590 F.3d 427, 434 (7th Cir. 2009) (citing FED. R. CIV. P. 51(d)(2) ). That requires the Court to determine from an examination of the entire record whether the defective instruction had a probable impact on the jury's finding. See id. (citations omitted); see also United States v. Medley , 913 F.2d 1248, 1260 (7th Cir. 1990) (citation omitted). "Plain error review of jury instructions is 'particularly light-handed.' " Lewis , 590 F.3d at 433 (quoting United States v. DiSantis , 565 F.3d 354, 361 (7th Cir. 2009) (citation omitted) ).

1. Verdict Form Deficiencies

Chicago alleges it suffered prejudice because the Court confused the jury by instructing them as to deliberate indifference and yet did not provide them with a separate interrogatory on the verdict form asking after their deliberate indifference finding. In rebuttal, LaPorta contends that Chicago waived this objection and in the alternative that the failure to provide the additional interrogatory does not rise to the level of prejudicial error requiring a new trial. See Mgmt. Hospitality of Racine , 666 F.3d at 440.

Whether Chicago waived this objection is a close call. LaPorta contends that the City not only failed to object to the verdict form, but actually submitted this version of the verdict form to the Court, meaning that Chicago proposed the same verdict form to which it now objects. (See Tr. 3371:14-17 (statement from the Court that: "I believe that [the verdict form] submitted by the defendant is clearer than the plaintiff's, so the Court will give the one submitted by the defendant.").) LaPorta's characterization is not wholly accurate. True, Chicago submitted this verdict form; but the City did so in conformance with the Court's earlier and specific orders given to both parties in chambers. (See 12/12/2017 Status Hearing Tr. 6, Dkt. 521-2 (acknowledging that the Court essentially crafted the final verdict form).) As such, the Court will not take Defendant's submission of the ultimately-selected form as an unmitigated endorsement of that form.

That being said, Chicago did not do its utmost to make its objection clear. After the Court selected the defense-submitted form and asked whether either party wanted to add anything on the record, counsel for the City remarked vaguely that "the verdict form itself, we drafted that pursuant to the Court's order yesterday." (Tr. 3372:5-6.) The City somewhat clarified this objection later, explaining that "we did try to come up with a different ... proposed verdict form in light of the Court's ruling that would have included specifically ... a question 4 ... a deliberate indifference finding specifically by the jury." (Tr. 3577:23-3578:5.) While this objection could have been more precisely stated, the Court finds this articulation particular enough to bring the nature of the alleged error into focus and thus avoid waiver under Rule 51. Schobert , 304 F.3d at 729.

Though Chicago did not waive the objection, the City cannot succeed on the objection's merits. To determine whether a verdict form was confusing, courts consider it in light of the instructions given. Happel , 602 F.3d at 827 (citations omitted). The nub of this inquiry is whether "the jury was misled in any way and whether it had [an] understanding of the issues and its duty to determine those issues." Id. (citation and internal quotation marks omitted). Looking through this lens, the Court cannot agree that its instructions and verdict form confused the jury. The Court's deliberate-indifference instruction closely tracked the Seventh Circuit's pattern instruction and clearly stated that the City could not be held liable unless LaPorta proved by a preponderance of the evidence that:

[t]he Chicago City Council knew that because one or more of the [alleged policies] existed and was allowed to continue, it was highly predictable that its off-duty officers would violate the bodily integrity of persons they came into contact with because there was a pattern of similar constitutional violations or it was highly predictable even without a pattern of similar constitutional violations.

(Jury Instructions 18, Dkt. 444; accord Seventh Circuit Civil Pattern Jury Instruction 7.25 (propounding substantially similar model instruction).) This language properly instructed the jury concerning the issues before it. The absence of the specific words "deliberate inference," which are likewise notably absent from the Seventh Circuit's pattern instruction, does not confound the charge. And the absence of an additional interrogatory on the verdict form asking after this instruction does not create an error serious enough to mislead the jurors and work prejudice upon the City. See McGeshick , 9 F.3d at 1232. When viewing the instructions and the form together, the jury was properly advised of the task before them. That suffices. The Motion for New Trial is denied in relevant part.

2. Jury Instructions Concerning Standard for Evaluating Kelly's Conduct

Chicago next contends a new trial is warranted by the Court's alleged error in instructing the jury that LaPorta had to prove Kelly intentionally or with reckless indifference shot LaPorta. As the emphasis suggests, it is the second phrase with which Chicago takes issue. The City submits that "reckless indifference" is simply inapt here, and the Court should have instead instructed the jury on a "shocks the conscience" standard of culpability under City of Sacramento v. Lewis , 523 U.S. 833, 846-47, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Before advancing to the merits of this dispute, the Court notes that as above, LaPorta charges that Chicago waived this objection. The Court and both parties discussed this and the other proposed instructions at length in chambers and, as Chicago now recounts, it there objected to the reckless indifference instruction. However, the City failed to reiterate that objection with clarity on the record the following morning (see Tr. 3356:1-3372:22) as required to avoid waiver under Rule 51. Schobert , 304 F.3d at 729 (proposing an alternative instruction is not enough to overcome waiver when objection not clearly stated). Still, there is an exception to this formal-objection requirement: The objection may survive waiver if (1) the party's position was made clear to the court and (2) any further objection would have been unavailing and futile. See Carter v. Chi. Police Officers , 165 F.3d 1071, 1078 (7th Cir. 1998) (citations omitted). Chicago made its objection clear off-record, it just simply failed to rearticulate that objection the next day. The Court is thus loath to charge Chicago with waiver here, where defense counsel might have presumed-albeit unwisely, given Rule 51's requirements-that reiterating the objections would be futile given the Court's earlier, off-the-record rulings.

Ultimately, whether the Court is lenient on this point does not affect the success of Chicago's objection. The objection fails, whether on the plain error standard applied to forfeited objections, Lewis , 590 F.3d at 433 (citing FED. R. CIV. P. 51(d)(2) ), or on the prejudice standard applied to typical, and not waived, allegations of error, McGeshick , 9 F.3d at 1232.

There is nothing inherent to a failure-to-discipline Monell claim demanding that the plaintiff prove the specific officer who effectuated the harm acted in a way that shocked the conscience, or was even reckless. See generally Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Such claims assert that the municipality itself is the state actor; it is the municipality's action in maintaining a deficient policy that supplies § 1983's "color of law requirement," Gibson v. City of Chicago , 910 F.2d 1510, 1519 (7th Cir. 1990), and it is the municipality's deliberate indifference that is the lynchpin for liability, Sornberger v. City of Knoxville , 434 F.3d 1006, 1029-30 (7th Cir. 2006) (citations omitted).

This particular suit, however, calls for an examination of Kelly's mental state because of LaPorta's particular theory of the case: that Chicago's administrative failings caused Kelly to believe he could act with impunity, including on the occasion of the shooting. Kelly cannot both have acted feeling free of consequences and acted negligently; something more than negligence was required. Had LaPorta instead theorized that Kelly accidentally shot him as a result of the City's deliberate indifference with respect to its failures to train officers to handle their firearms safely, LaPorta would only need to prove Kelly shot LaPorta negligently. Chicago no doubt objects to this hypothetical on the basis that negligence cannot violate the Due Process Clause. See Ruehman v. Sheahan , 34 F.3d 525, 528 (7th Cir. 1994) ("Negligence ... does not violate the due process clause."). But in this case, the constitutionally-violative mental state is supplied by the deliberately-indifferent City, not by the officer who implements the harms the City ignores. Kelly's mental state is only spurred onto the stage by LaPorta's particular theory of why (or how) Kelly acted the way he did. With this in mind, the Court instructed the jury on a reckless indifference standard. Compare Jury Instructions 18, Dkt. 444, with Archie v. City of Racine , 847 F.2d 1211, 1219 (7th Cir. 1988) ("An act is reckless in the pertinent sense when it reflects complete indifference to risk[.]"). In the context of this case, that instruction was not improper.

In the final twist to this argument, Chicago contends that even if it was not error to instruct the jury that the City could not be held liable unless Kelly acted with at least reckless indifference, the Court still erred by failing to define "reckless indifference." The City complains that without that further clarification, the jury might have understood the City could be held liable so long as Kelly acted "recklessly"-i.e. , like a "loose cannon" (Roy Tr. 957:1-959:10)-irrespective of Kelly's intent in so acting. The Court disagrees.

Before addressing the merits of this argument, the Court notes that Chicago did not raise this objection at trial. Though, as laid out above, the Court is disinclined to label as forfeit those arguments extensively developed in chambers, the Court will not extend the same leniency to jury-instruction objections that Chicago never introduced until present. If Chicago found the deliberate indifference instruction to be opaque, the onus was on the City to say so before the Court delivered it to the jury. FED. R. CIV. P. 51(b)-(c). The Court accordingly reviews Chicago's argument on a plain error standard. United States v. Medley , 913 F.2d 1248, 1260 (7th Cir. 1990) (citation omitted).

When reviewing a challenge to a jury instruction, courts "must view the instruction as a whole and consider the challenged instruction 'both in the context of the other instructions given and in light of the allegations of the complaint, opening and closing arguments and the evidence of record.' " U.S. ex rel. Tyson v. Amerigroup Ill., Inc. , 488 F.Supp.2d 719, 727 (N.D. Ill. 2007) (quoting Sims v. Mulcahy , 902 F.2d 524, 533 (7th Cir. 1990) ). From the Complaint onward, LaPorta's case always turned upon the idea that Kelly felt empowered to act with impunity-that he could engage in wrongdoing without facing the consequences. (See, e.g. , 7th Am. Compl. ¶ 77 ("[Chicago's administrative failings] caused Patrick Kelly, and other officers similarly situated, to act with impunity and to feel and act as though their acts of misconduct would go unpunished and uninvestigated.").) Plaintiff's counsel framed the case in that way from beginning, (Pl.'s Opening Tr. 152:3-6 ("Kelly [ ] repeatedly acted with impunity because he learned that misconduct, regardless of how severe or even criminal, it goes unpunished"), 197:14-16 ("[T]he City is liable because Patrick Kelly knew that he could mess around and get away with it") ), to end, (Pl. Closing Tr. 3439:16-22 ("[Kelly] was not disciplined for any of his acts of violence or domestic battery, even after the City had notice time after time of his propensity for this violent, reckless, bad behavior.... Officer Kelly was acting with impunity in a way in which he knew he was immune from consequences without fear of repercussion.") ). The Court believes that within the context of this suit, the jury understood that Kelly's awareness of his own misconduct was the fulcrum upon which the merits turned. Chicago's suggestion that the "reckless indifference" instruction would somehow dupe the jury into ignoring this otherwise omnipresent theory of liability is not credible enough for the Court to agree the City suffered a "miscarriage of justice." Medley , 913 F.2d at 1260 (reciting plain error standard). Providing that instruction without further clarification did not constitute plain error in this case.

3. Spoliation and Probable Cause Instructions

Chicago also asserts it suffered prejudice because the Court erroneously instructed the jury as to spoliation of three pieces of evidence: Kelly's phone and text messages; Kelly's service weapon, and a CPD-created video of the shooting scene. After describing those pieces of evidence, the Court instructed the jury:

[T]he City of Chicago contends that it had no lawful basis to obtain Kelly's texts and no texts occurred after the 911 call; Kelly's service weapon was returned after all possible ISP testing was completed; and a video never existed.

You may assume that such evidence would have been unfavorable to the City of Chicago if you find by a preponderance of the evidence that: One, the City of Chicago intentionally failed to preserve the evidence or permitted the evidence to be destroyed; and two, the City of Chicago intentionally failed to preserve the evidence or permitted the evidence to be destroyed in bad faith.

(Jury Instructions 16, Dkt. 444.) Chicago does not object to the language of this instruction-and wisely so, given how closely the instruction tracks the Seventh Circuit's pattern instruction. (Compare id. , with Seventh Cir. Pattern Instruction 1.20.) The City simply contends the instruction should not have been given at all. The Court disagrees.

Before giving a spoliation instruction, courts require "a showing of an intentional act by the party in possession of the allegedly lost or destroyed evidence[.]" Spesco, Inc. v. General Elec. Co. , 719 F.2d 233, 239 (7th Cir. 1983). Absent such a showing, the instruction can be unduly argumentative. Id. LaPorta made the requisite showing here. One senior officer at the scene of the shooting testified that he "wanted [the scene] worked up as if it were a homicide." (McNicholas Tr. 719:10-12.) Another said at the scene that Kelly should be considered a suspect in the shooting. (Doherty Tr. 2585:6-15.) Despite this clear acknowledgment of the need to investigate Kelly's involvement, Chicago and its officers failed to take the routine step of preserving that suspect's phone and messages-a failure made more suspect by the City's corresponding preservation of LaPorta's phone as part of CPD's investigation into the crime of attempt suicide. (Weber Tr. 1036:12-1037:20.)

As for the missing video: Chicago simply contends it never existed. (See Kaput Tr.

7902-791:10; Barsch Tr. 2966:12-17 (both representing that no video was created to their knowledge).) But LaPorta produced CPD documents obtained in discovery that state the contrary. (CPD Case Supplementary Report, Trial Ex. PTX 126 at 7, Dkt. 508-11 (reciting among "evidence": "O/A and C/U video of scene").) The spoliation instruction identified the respective parties' positions and then properly permitted the jury to weigh the credibility of the conflicting evidence and determine whether an adverse inference was appropriate. This is exactly the mechanism anticipated by the Pattern Instructions, and it was not error to apply it here.

Finally, the gun. According to LaPorta's trial exhibits, CPD seized Kelly's firearm on January 13, 2010. But then, on June 7, 2013, more than two years after LaPorta filed this case in state court, CPD simply gave the gun back. (CPD Property Inventory Record, Trial Ex. PTX 98, Dkt. 508-3.) Chicago contends it had no duty to hold on to Kelly's firearm. This strains credulity. The gun was the operative piece of evidence in what had, by the time of CPD's surrender of the weapon, already been alleged to be an intentional shooting. These facts certainly suffice for the requisite showing to warrant the spoliation instruction.

In sum, LaPorta passed the bar for an instruction on all three pieces of evidence. And even if that were not the case, Chicago has failed to demonstrate that this error-if one existed-so confused the jury's understanding of the issues as to work serious prejudice upon the City. McGeshick , 9 F.3d at 1232.

Chicago adds to its spoliation objection a perfunctory claim that it suffered prejudice from the Court's refusal to instruct the jury on the meaning of probable cause. The City contends that without this instruction, the spoliation instruction could have improperly led the jury to conclude that the City had a duty to retain the three pieces of evidence discussed above. First, the Court is not persuaded by the jury-confusion argument: As already set forth, the spoliation instruction adequately explained what task the jury faced. Second, no part of the jury's verdict hinged upon probable cause determinations, so their understanding of this legal issue is oblique to their verdict in this case. The probable cause instruction was properly refused.

4. Patricia LaPorta Damages Instruction

The City next contends the Court erred in refusing to instruct the jury that LaPorta's mother, Patricia, has no claim for damages in this case and that testimony concerning her pain and suffering should not be considered when reaching the damages verdict. LaPorta responds that the Court instructed the jury to determine damages based on harms sustained by LaPorta alone, so a further "Patricia instruction" was not necessary. The Court agrees. Not only was the jury charged with calculating only LaPorta's damages, the verdict form itemized the potentially compensable areas of injury, and none of those mentioned Patricia. This argument cannot justify the Court ordering a new trial.

In conclusion, the Court finds that none of the above instructions, when taken either in isolation or all together, constitute prejudicial error warranting a new trial.

B. Evidentiary Rulings

Chicago takes issue with several of the Court's evidentiary rulings throughout the trial and contends that even if not independently, these errors cumulatively amount to prejudice against the City and thus justify a new trial. A new trial may be ordered when an evidentiary error had a "substantial influence over the jury, and the result reached was inconsistent with substantial justice." EEOC v. Mgmt. Hospitality of Racine, Inc. , 666 F.3d 422, 440 (7th Cir. 2012) (citation and internal quotation marks omitted). When a party seeking a new trial makes a cumulative-effect argument, that movant must show: "(1) that multiple errors occurred at trial; and (2) those errors, in the context of the entire trial, were so severe as to have rendered [the] trial fundamentally unfair." Christmas v. City of Chicago , 682 F.3d 632, 643 (7th Cir. 2012) (citation and internal quotation marks omitted). The cumulative-effect analysis requires an examination of the entire record, paying particular attention to the nature and number of alleged errors committed; their interrelationship, if any, and their combined effect; how the court dealt with the errors during trial, including the efficacy of any remedial measures; and the strength of the winning party's case. Id.

1. Kelly's Invocation of the Fifth Amendment

In a civil case, "the jury is permitted to hear evidence of a witness's invocation of the privilege and may draw an adverse inference from it." Hillmann v. City of Chicago , 834 F.3d 787, 793 (7th Cir. 2016) (citing Baxter v. Palmigiano , 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) ("[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify[.]") ) (citations omitted). Such inferences may be drawn even when the witness invoking the privilege is a nonparty. Cf. Fujisawa Pharm. Co. v. Kapoor , No. 92 C 5508, 1999 WL 543166, at *9 (N.D. Ill. July 21, 1999) (stating that drawing an adverse inference from a nonparty's silence against a party is permissible when the two share an identity of interests) (citing Daniels v. Pipefitters' Ass'n Local Union No. 597 , 983 F.2d 800, 802 (7th Cir. 1993) ; Kontos v. Kontos , 968 F.Supp. 400, 406 (S.D. Ind. 1997) ). As with most evidentiary rulings, the decision whether to permit the inference falls within the district court's broad discretion. Evans v. City of Chicago , 513 F.3d 735, 740 (7th Cir. 2008) (citation omitted).

The City objects that the Court's instruction permitted the jury to draw an adverse inference against the City itself, which Chicago contends to be a prejudicial error. First, Chicago's interpretation of the instruction is contrary to its clear language, which permitted the jury to draw said inference against only Kelly. (Jury Instructions 15, Dkt. 444 (instructing that when a person asserts his Fifth Amendment rights, "you are permitted to assume that his testimony would be unfavorable to him in any manner that you deem reasonable and supported by the evidence" (emphasis added) ).) Second, even if this instruction permitted the jury to take an adverse inference against the City-which it did not-there would still be no error here. One party's Fifth Amendment invocation may be imputed to another party when the two share certain allied interests sufficient to justify the inference's trustworthiness and advance the search for truth. See Kontos , 968 F.Supp. at 406 (quoting LiButti v. United States , 107 F.3d 110, 124 (2d Cir. 1997) ). Courts engaging in this inquiry have eschewed bright-line rules in favor of a case-by-case analysis demanding that the party urging the inference justify it. State Farm Mut. Auto. Ins. Co. v. Abrams , No. 96 C 6365, 2000 WL 574466, *6, 2000 U.S. Dist. LEXIS 6837, *21 (N.D. Ill. May 11, 2000) (collecting cases).

LaPorta justified the inference here. He could not prove Monell liability unless he could first establish that Kelly shot LaPorta with at least reckless indifference.

Thus, when Kelly took the stand, his interests and the City's aligned. If Kelly admitted to shooting LaPorta deliberately, he would have exposed himself to criminal liability and the City to civil liability under Monell . The relevant interests were in lockstep. The Court agrees with LaPorta that in these circumstances, the adverse inference from Kelly's invocation could have been permitted against the City. Though, as stated above, the Court did not go this far; the instruction permitted an adverse inference only against Kelly, not Chicago. In this regard, the City has fallen short of carrying its heavy burden in justifying a new trial. See BP Amoco Chem. Co. v. Flint Hills Res., LLC , 697 F.Supp.2d 1001, 1025 (N.D. Ill. 2010) (citations omitted).

2. LaPorta's Competency to Testify

Chicago contends that the shooting stripped LaPorta of his competency and as such the Court should not have allowed him to testify. The City argued as much in its motions in limine , but the Court believes now, as it did then, that LaPorta was competent to give testimony. Federal Rule of Evidence 601"creates a broad presumption of competency." Estate of Suskovich v. Anthem Health Plans of Va., Inc. , 553 F.3d 559, 570 (7th Cir. 2009). "Competency of a witness to testify ... is a limited threshold decision ... as to whether a proffered witness is capable of testifying in any meaningful fashion whatsoever." Sauer v. Exelon Generation Co., LLC , 280 F.R.D. 404, 407 (N.D. Ill. 2012) (quoting United States v. Banks , 520 F.2d 627, 630 (7th Cir. 1975) ). Indeed, the Advisory Committee's note to Rule 601 clarifies that "[n]o mental or moral qualifications for testifying as a witness are specified .... A witness wholly without capacity is difficult to imagine . The question is one particularly suited to the jury as one of weight and credibility[.]" FED. R. EV. 601 (emphasis added). That note also remarks that "[d]iscretion is regularly exercised in favor of allowing the testimony" over capacity objections. Id.

Witness-capacity objections face long odds, though the City contends those odds should have played out in its favor here. Dr. Heilbronner testified that LaPorta's injuries undermined his capacity to recall reliably the events leading up the shooting. (Heilbronner Tr. 3037:1-3047:8.) But the doctor also testified that it is "really difficult to say with any certainty exactly when [LaPorta's] memories are reliable and when they aren't"; he also conceded that it was not impossible that LaPorta remembered the events leading up to the shooting. (Id. 3046:1-3052:18.) The question, ultimately, is whether LaPorta's professed memories of the relevant events were reliable. That question goes to the proper weight to be afforded to LaPorta's recollections, which makes this a question for the jury. See FED. R. EV. 601 ; see also United States v. Dawson , 434 F.3d 956, 958 (7th Cir. 2006) (stating that Committee notes to the rules of evidence are "entitled to our respectful consideration"). There is no error here.

3. Admission of the DOJ and PATF Reports

The heart of the next debate is Federal Rule of Evidence 803(8), which creates a hearsay exception for records or statements of a public office. Reports fit within that exception when they contain factual findings resulting from a legally authorized investigation, so long as the party seeking to exclude the report has not shown it lacks trustworthiness. See Daniel v. Cook Cty. , 833 F.3d 728, 740 (7th Cir. 2016) ; Lockwood v. McMillan , 237 F.Supp.3d 840, 846-49 (S.D. Ind. 2017). Permissible reports may contain both opinions and conclusions. Daniel , 833 F.3d at 740 (citation omitted). Still, hearsay statements contained within an admissible report are not themselves made admissible by Rule 803(8). See Lockwood , 237 F.Supp.3d at 849. At trial, the Court found that the DOJ and PATF reports fell within the 803(8) exception and accordingly permitted Plaintiff's counsel to read portions of each into the record. For a number of reasons, Chicago contends that was prejudicial error, though notably the City does not contend that these reports lacked trustworthiness. The Court is not persuaded by any of Chicago's arguments.

First, the City contends that the Court impermissibly allowed counsel to read into the record hearsay statements from the reports under the guise of 803(8). But the City points to zero instances of hearsay in its briefing-indeed, while the read-in portions of the reports recited some hearsay sources (see, e.g. , Tr. 2240:1-2242:3 (DOJ report summarizing report writers having met with a range of lay and expert sources) ), those selections do not actually include the hearsay statements to which they allude.

Chicago also contends the factual and legal issues represented in these reports lack a "close fit" to the issues present in LaPorta's suit. See Daniel , 833 F.3d at 742. This second objection largely centers on the reports' allegedly irrelevant temporal focus: Neither report focuses on those years leading up to the January 2010 shooting, Chicago claims, so they cannot substantiate LaPorta's claims concerning the City's policies predating that event. But the PATF report reviewed IPRA records dating back to 2007. (See Tr. 2350:1-7 (recounting data reviewed in PATF report); Emanuel Statement Tr. 250:7-18 (summarizing scope of PATF report).) Chicago's timeliness argument has more traction with the DOJ report, which professes to be based on data dating back to December 2010. (Compare Tr. 2242 (describing report's review of police misconduct complaints during the five years preceding the DOJ investigation), with Tr. 2238:12-22 (stating investigation began in December 2015).) However, the DOJ report findings do not limit themselves to these data, but rather express "longstanding, systemic deficiencies" in CPD policies. (Tr. 2249:1-7.) The Court thus again finds the report, which, much like the PATF report, consists of directly-relevant subject material, a close enough fit to the issues at bar in the case to fall within 803(8).

And even if this ruling was made in error, the Court believes it was harmless. The portions of the DOJ report read into the record espouse substantially similar conclusions to those reached in the PATF report. The jury would have heard the PATF conclusions whether or not the DOJ report was admitted, so the addition of the cumulative, second report does not rise to the level of prejudicial error. Cf. United States v. Pessefall , 27 F.3d 511, 516 (11th Cir. 1994) (finding no reasonable probability of prejudice stemming from jury's consideration of extrinsic, but cumulative, evidence); United States v. Pitman , 475 F.2d 1335, 1337 (9th Cir. 1973) (rejecting argument for reversal predicated upon inadmissible evidence allowed in at trial that was cumulative of other, admissible evidence, and the record did not otherwise reflect prejudice against appellant).

Finally, Chicago objects that the PATF report cannot qualify under the 803(8) exception because PATF did not receive City funding and does not speak for the City. This argument fails. The City created PATF for the express purpose of reviewing the system for accountability, oversight, and training in place for Chicago's police officers. The resulting findings, summarized in the PATF report, were thus "made by a public officer resulting from a legally authorized investigation," and the incidental inclusion in PATF of non-governmental personnel is "beside the point." Simmons v. City of Chicago , No. 14 C 9042, 2017 WL 3704844, at *8 (N.D. Ill. Aug. 28, 2017) (ruling on motion in limine that the PATF report fit the exception under 803(8).)

4. Expert Testimony

Next, Chicago argued the Court committed prejudicial error in admitting certain expert testimony from two witnesses, Dr. Ziejewski, LaPorta's biomechanics expert, and David Balash, LaPorta's crime-scene forensics expert.

Three parts of Dr. Ziejewski's testimony offend the City: (1) Ziejewski's testimony that it was unlikely that LaPorta, who generally used his right hand to shoot guns while hunting, would have used his left hand to shoot himself; (2) Ziejewski's participation with LaPorta's counsel in an in-court demonstration exemplifying the doctor's opinion of details concerning the shooting; (3) Ziejewski's testimony concerning the gunshot's angle of trajectory.

The first of these challenges zeroes in on eleven lines of Ziejewski's testimony:

Q. What's your second opinion - I'm sorry, third?

A. This would be unlikely for Mr. LaPorta with right-handed gun handling habit to use his left hand on January 12th, 2010.

Q. Did you review deposition testimony of his family?

A. Yes.

Q. And did that deposition testimony reveal that he had a habit or a tendency to use a hand when operating a gun or a rifle?

A. Yes.

Q. Which was that?

A. Right hand.

(Ziejewski Tr. 626:5-15.)

The City contends that this opinion went beyond the scope of the expert's testimony. But as the Court held in ruling on the motions in limine , an expert on human body biomechanics such as Dr. Ziejewski can rely on statements by LaPorta's family for the basic fact that LaPorta is right-hand dominant. (Mot in Limine Tr. 17:7-19.) "The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusion based on that analysis are factual matters to be determined by the trier of fact[.]" Smith v. Ford Motor Co. , 215 F.3d 713, 718 (7th Cir. 2000).

Next, the City objects to the doctor's in-court demonstration of the shooting, contending that said demonstration was not properly disclosed in advance of trial. But as LaPorta points out, the demonstration simply consolidated physical evidence already described and relied upon by the doctor-all of which he discussed without objection from Chicago. (See, e.g. , Ziejewski Tr. 614:1-618:14 (testifying concerning LaPorta's body position, the blood evidence, tissue recovered at the scene, and gunshot residue).) The Court committed no error by permitting that demonstration to go forward.

Finally, but in the same vein, the City contends that the doctor should not have been permitted to testify that the bullet traveled at an angle of somewhere between 35 and 45 degrees because this opinion, too, went undisclosed before trial. The doctor conceded on the stand that he had not previously testified to this angle; he also clarified that he derived that figure by measuring the path of the bony fragments depicted in LaPorta's CT scan. (Id. 633:5-633:23, 634:3-11.) If allowing this testimony constituted error, however, it was not prejudicial. LaPorta also adduced testimony from his forensic science expert, David Balash, who provided substantially similar shooting-angle testimony. (See Balash Tr. 1900:18-1901:9.) Delayed disclosures are prejudicial when said delay impacts the receiving party's ability to prepare for trial. Cf. Mid-Am. Tablewares, Inc. v. Mogi Trading Co. , 100 F.3d 1353, 1363 (7th Cir. 1996) (upholding pre-trial refusal to exclude tardily-disclosed evidence when party seeking exclusion could not demonstrate any prejudice); LG Elecs. v. Whirlpool Corp. , No. 08 C 242, 2010 WL 9506787, at *2 (N.D. Ill. Sept. 7, 2010) (granting pretrial motion to exclude tardily-disclosed evidence because the delay prejudiced opponent's ability to prepare for trial). No such prejudice arose from LaPorta's late disclosure here. Because Balash's substantially similar opinion was timely disclosed, the City did not want for advance notice of this cross-examination topic. The danger of prejudice from an at-trial surprise was thus extinguished, as the disclosure of Dr. Ziejewski's opinion would have been cumulative.

As for David Balash, Chicago lodges two complaints, concerning: (1) Balash's testimony regarding the flaws in CPD's investigation of the LaPorta shooting; and (2) his comments that the prosecuting state's attorney had a faulty understanding of gunshot residue ("GSR") evidence.

With the first challenge, the City focuses on Balash's critiques of a