Date: 09-01-2018

Case Style:

Case Number: 17-1927

Judge: S

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: Anthony J. Sineni, III

Defendant's Attorney: Personal T. Marchesi and Cassandra S. Shaffer

Description: In the aftermath of a four-day
jury trial culminating in a take-nothing verdict, plaintiffappellant
Tara-Lee Campbell challenges the district court's
exclusion of certain evidence.1 Concluding, as we do, that
Campbell's grounds for attacking one set of challenged evidentiary
rulings were not advanced below and that her remaining challenge
is moot, we affirm the judgment below.
I. BACKGROUND
We sketch the pertinent facts and travel of the case.
On November 19, 2013, members of the Emergency Services Unit (ESU)
of the Cumberland County Sheriff's Office (Sheriff's Office)
executed a search warrant at the home of Campbell and her thenhusband,
Byron Manchester, in Casco, Maine. Defendant-appellee
Brian Ackerman, a detective, had obtained the warrant based on
allegations limning probable cause to believe that Manchester was
a felon in possession of firearms. As matters turned out,
Manchester was not a convicted felon and, thus, the search warrant
was issued on a faulty premise.
1 A district judge presided over the early phases of this
case. The parties then agreed to proceed before a magistrate
judge, see 28 U.S.C. § 636(c); Fed. R. Civ. P. 73(a), who presided
over all subsequent phases (including the trial). We do not
distinguish between these two judicial officers but, rather, take
an institutional view and refer to the rulings below as those of
the district court.
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The ESU was the functional equivalent of a SWAT team.
Its members were equipped with tactical gear and semi-automatic
weapons. At trial, the facts surrounding the execution of the
search were hotly disputed. Campbell testified that Detective
Ackerman — in an effort to move Campbell away from the house —
dragged her across the yard as she stumbled over gravel and rocks.
Detective Ackerman contested this narrative, asserting that he
never touched Campbell and made no effort to restrain her.
Manchester was arrested following the search, but he was
released the same day. No charges were pressed. Even so, the
saga did not end there: Campbell and Manchester sued Detective
Ackerman and the Sheriff's Office in the federal district court,
alleging among other things violations of the Fourth Amendment and
42 U.S.C. § 1983. As relevant here, the complaint alleged that
Campbell's Fourth Amendment rights had been violated by Detective
Ackerman's use of excessive force while executing the search
warrant.2 Notably, the complaint did not endeavor to state any
claim concerning the validity of the warrant.
2 Although the complaint asserted a number of other claims on
behalf of both Campbell and Manchester, the present appeal concerns
only Campbell's excessive force claim. Though Manchester was also
unsuccessful in pursing his claims, he has not appealed. No useful
purpose would be served by describing either Manchester's
allegations or any of the claims other than Campbell's excessive
force claim.
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On November 9, 2016, the district court convened a prefiling
status conference. See D. Me. R. 56(h). At that time,
Campbell agreed that her only cause of action under the Fourth
Amendment and section 1983 was an excessive force claim, explicitly
disavowing any "illegal search claim." Consequently, the parties
stipulated that "[t]he search warrant is relevant only to the
extent it provide[s] grounds for the officers' use of force."
These agreements were confirmed in an order entered by the district
court. See id. (requiring entry of order "reciting the action
taken at [pre-filing status] conference").
Campbell subsequently joined in an attempt to amend the
complaint to add a claim, also in pursuance of the Fourth Amendment
and section 1983, that the search warrant was unlawfully obtained.
The district court denied this motion,3 holding that Campbell could
not "back away" from her earlier agreement and could not belatedly
"attempt to make an illegal search claim." The court made
pellucid, though, that it was not excluding evidence relating to
the procurement or validity of the warrant insofar as such evidence
might be shown to be relevant to the excessive force claim by "the
defendants rely[ing] on the warrant to support any belief that
force of a certain level was required and their knowledge of the
circumstances of the warrant's issuance."
3 On appeal, Campbell does not assign error to the denial of
this motion.
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During the later stages of pretrial proceedings, the
parties skirmished regarding the admissibility of evidence related
to the issuance of the warrant. The defendants moved in limine,
premised on the district court's earlier ruling, to exclude any
trial evidence relating to the procurement of the warrant.
Campbell countered by filing a self-styled motion in limine
offering "supplemental argument" in opposition to the exclusion of
such evidence. The district court resolved these competing motions
on the first day of trial: it ruled provisionally that, consistent
with the parties' prior agreements and with its own earlier
decisions, Campbell could not present evidence relating to either
the procurement or the validity of the search warrant unless she
first laid a foundation establishing the relevance of such evidence
to her excessive force claim.
The trial went forward. On the third day, the district
court formally granted in part and denied in part Campbell's motion
in limine. Specifically, the court allowed the introduction of
evidence concerning Detective Ackerman's involvement in the
decisions about how to execute the warrant (including the decision
to employ a SWAT team) but again refused to allow evidence relating
to either the procurement or the validity of the warrant.
At a separate point in the trial, the district court
made a separate evidentiary ruling, limiting Campbell's testimony
anent the damages that she allegedly sustained. Though the court
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permitted her to testify regarding her claimed emotional distress
and the medical treatment she received, it did not permit her to
testify regarding her medical bills. The court concluded that
this evidence could not be admitted without competent proof (say,
through a physician's testimony) of a causal link between the
incident and the expenses allegedly incurred. Cf. Barnes v.
Anderson, 202 F.3d 150, 159-60 (2d Cir. 1999) (affirming ruling
that plaintiffs must produce expert medical evidence to forge
causal link between defendants' actions and claimed injury).
Following the close of all the evidence, final arguments
of counsel, and the court's charge, the jury retired to deliberate.
It thereafter returned a verdict that, as relevant here, rejected
Campbell's excessive force claim. In a special finding, see Fed.
R. Civ. P. 49(a), the jury found that Detective Ackerman had not
used excessive force vis-á-vis Campbell. This timely appeal
ensued.
II. ANALYSIS
In this venue, Campbell challenges both the district
court's rulings on the motions in limine (which resulted in the
exclusion of evidence concerning the procurement and validity of
the search warrant) and the district court's refusal to admit her
medical bills into evidence. We address these challenges
sequentially.
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A.
To begin, Campbell assigns error to the district court's
exclusion of evidence relating to the procurement and validity of
the warrant. A district court's decision to exclude evidence —
including its ruling on a motion in limine that has the effect of
excluding evidence — is reviewed for abuse of discretion. See
Clukey v. Town of Camden, 894 F.3d 25, 34 (1st Cir. 2018); United
States v. Nguyen, 542 F.3d 275, 279 (1st Cir. 2008).
Before us, Campbell submits that the court below abused
its discretion because the excluded evidence would have
established that the warrant was invalid and because events
surrounding the procurement of the warrant were "facts and
circumstances" shedding light upon the objective reasonableness of
the level of force used during the search.4 Here, however,
Campbell's challenge is stillborn: it suffers from a failure to
launch. She predicates her assignment of error on legal theories
4 In her brief on appeal, Campbell conclusorily asserts that
the district court "should have reasoned there was an alternative
theory" for the admission of the evidence — that it was meant to
show the defendants' "motive and/or plan" under Federal Rule of
Evidence 404(b)(2) or that it was "stand-alone" evidence of motive.
We deem this argument, which is made in a cursory manner bereft of
any developed rationale, to be waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived").
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and arguments that — based on the available record5 — appear to be
raised for the first time on appeal.

Our jurisprudence simply does not allow a litigant to
switch horses in mid-stream, abandoning theories and arguments
raised in the trial court and substituting in their place new ones
raised for the first time in the court of appeals. Indeed, "[i]f
any principle is settled in this circuit, it is that, absent the
most extraordinary circumstances, legal theories not raised
squarely in the lower court cannot be broached for the first time
on appeal." Teamsters, Chauffeurs, Warehousemen & Helpers Union
v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992). We
have adhered to this prudential principle with a regularity
bordering on the monotonous. See, e.g., Potvin v. Speedway LLC,
891 F.3d 410, 415 (1st Cir. 2018); Bos. Redev. Auth. v. Nat'l Park
Serv., 838 F.3d 42, 50 (1st Cir. 2016); Clauson v. Smith, 823 F.2d
660, 666 (1st Cir. 1987).

So it is here. When Campbell opposed the government's
motion in limine in the district court, she argued that the
contested evidence was relevant because, without it, the jury would
5 The record on appeal does not contain transcripts of all
relevant conferences that were conducted by telephonic means. Nor
does it contain all the email communications referred to by the
parties. As the appellant, Campbell has the duty to furnish the
record on appeal. See Fed. R. App. P. 10(b)-(c). Consequently,
she must "bear the brunt of an insufficient record." Real v.
Hogan, 828 F.2d 58, 60-61 (1st Cir. 1987); see Teixeira v. Town of
Coventry, 882 F.3d 13, 19 n.4 (1st Cir. 2018).
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think (incorrectly) that she and Manchester had done "something
wrong." Her fallback position was that the evidence was relevant
because it bore upon Detective Ackerman's credibility. She did
not connect — let alone base her argumentation on — the supposed
relevance of the evidence to the reasonableness of the level of
force used by the officers when carrying out the search.
Nor did Campbell fill this gap when she sought to
introduce the contested evidence during the trial. At that time,
she made only confusing allusions to her reasons for wanting to
admit the evidence — and she did not clearly spell out either of
the theories that she now seeks to advance. In this court, she
does not identify any extraordinary circumstances that might tend
to justify her failure to assert these theories and arguments
below. Under Superline, see 953 F.2d at 21, her newly minted
asseverational array cannot make its debut on appeal. Thus, her
claim of error fails.
B.
This brings us to Campbell's second claim of error. The
claim relates to the district court's exclusion of Campbell's
proffered medical bills at trial. Those bills, however, were
relevant only to the issue of damages. See, e.g., Fink v. Foley-
Belsaw Co., 983 F.2d 111, 115 (8th Cir. 1993).
This claim of error need not detain us. It is settled
law that when liability has been resolved against a plaintiff, any
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claims of error relating exclusively to damages are moot. See
A.M. Capen's Co. v. Am. Trading & Prod. Corp., 202 F.3d 469, 471
n.3 (1st Cir. 2000); Sheils Title Co. v. Commonwealth Land Title
Ins. Co., 184 F.3d 10, 18 (1st Cir. 1999); Tiernan v. Blyth,
Eastman, Dillon & Co., 719 F.2d 1, 5 n.5 (1st Cir. 1983). This is
such a case: the medical bills were relevant only to the issue of
damages — and that is the end of the matter. Because the jury
found no liability and Campbell has not successfully challenged
that finding, see supra Part II(A), and all issues regarding
damages (including the issue of whether Campbell's medical bills
should have been admitted into evidence) are moot.

Outcome: We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: