United States District Court, W.D. Pennsylvania
LEON D. FORD, Plaintiff,
POLICE OFFICER DAVID DERBISH Defendant. POLICE OFFICER DAVID DERBISH, Cross-Claim Plaintiff,
CITY OF PITTSBURGH, Cross-Claim Defendant.
ORDER RE: ECF NO. 502
Maureen P. Kelly, Chief Magistrate Judge.
before the Court is Defendant's Motion for
Reconsideration, ECF No. 502, and Plaintiffs Response to
Defendant Derbish's Motion to Reconsider, ECF No. 504.
parties and their counsel are well aware, the instant action
was filed on September 13, 2013. ECF No. 1. In the over
four-year history of this case, which involves over 500
docket entries, the Court has dealt with a multitude of
motions, considered and ruled on over 35 motions in limine
and related briefing, conducted all pretrial proceedings and
presided over a more than three-week jury trial of this case.
During this course of time, the parties, through their
counsel, have raised, and at times raised again, all possible
the conclusion of the first trial on October 10, 2017, at
which the jury deadlocked on the issue of whether Defendant
David Derbish used excessive force in shooting Plaintiff Leon
Ford in violation of his rights under Section 1983 of the
Civil Rights Act and the Fourth Amendment of the United
States Constitution, this Court conducted a 90-minute status
conference on October 20, 2017, with counsel to discuss the
retrial and the scheduling of the same. ECF No. 496. The
Court clearly informed counsel for both sides that the retrial
will not involve new evidence, witnesses or issues and that
the rulings on the motions in limine remain the same.
the Court's rulings during the October 20, 2017, status
conference, on November 20, 2017, remaining Defendant David
Derbish filed the instant Motion for Reconsideration seeking
to file new motions in limine, new jury instructions and a
new verdict slip, all of which he states "will be
materially different from the first trial in this
matter." ECF No. 502 ¶¶ 19, 21. Defendant
Derbish does not specify the subject matter of the new
proposed motions in limine or jury instructions.
District courts have the discretion to admit or exclude new
evidence on retrial. See Habecker v. Clark Equip,
Co., 36 F.3d 278, 288 (3d Cir. 1994) ("Habecker
III"); see also Martin's Herend Imports, Inc. v.
Diamond & Gem Trading United States of Am. Co., 195
F.3d 765, 774 (5th Cir. 1999); Cleveland v. Piper
Aircraft Corp., 985 F.2d 1438, 1449 (10th Cir. 1993); 11
Charles Alan Wright, Arthur R. Miller, and Kay Kane, Federal
Practice and Procedure, § 2803, at 50 (2d ed. 1995). The
Court must be guided by considerations of fairness to the
parties, see Martin's Herend Imports, 195 F.3d
at 774; Cleveland. 985 F.2d at 1449-50, and avoid
undue prejudice to either party. See Habecker v. Clark
Equip. Co., 942 F.2d 210, 218 (3d Cir. 1991)
("Habecker II"). Only where a court
perceives a manifest injustice in limiting evidence at
retrial must it allow additional testimony and
exhibits. See Martin's Herend Imports,
195 F.3d at 775.
Total Containment, Inc. v. Dayco Prods., 177
F.Supp.2d 332, 338 (E.D. Pa. 2001) (emphasis added).
discussed during the status conference, there is no need for
this Court, nor is it in the interests of the efficient
administration of justice, to allow either party to
relitigate issues already thoroughly reviewed and decided by
the Court. Further, nothing set forth in Defendant's
Motion for Reconsideration indicates that additional
pre-trial evidentiary rulings are necessary to prevent a
only difference between the first trial and the second trial
will be that the claims have been narrowed. The new trial
will not include Plaintiffs claim of assault and battery
(Count VI) against former Defendant Andrew Miller, which was
not the primary claim of Plaintiff, the primary claim being
the excessive force claim against Defendant Derbish (Counts I
and II) in shooting Plaintiff. Accordingly, it is the
intention of this Court to revise the jury instructions that
were used during the first trial to exclude reference to then
Defendant Andrew Miller and to the assault and battery claim.
Similarly, as to the verdict slip, it is the intention of
this Court to revise the verdict slip that was used during
the first trial to exclude reference to then Defendant Andrew
Miller and to the assault and battery claim. As is the
practice of this Court, and as followed in the first trial,
all counsel will be provided with copies of the jury
instructions and the verdict slip prior to the closing
arguments and given the opportunity to raise any objections.
NOW, this 5th day of December, 2017, upon
consideration of Defendant's Motion for Reconsideration,
ECF No. 502, and Plaintiffs Response to Defendant
Derbish's Motion to Reconsider, ECF No. 504, IT IS HEREBY
ORDERED that the Motion for Reconsideration is DENIED.
 In the Motion for Reconsideration,
Defendant appears to imply that the Court has abandoned its
proper neutral role and displayed favoritism to one party,
ECF No. 502 ¶¶ 13, 25. This implication is not
accurate as the Court has not favored either party,