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Ermini v. Scott

United States Court of Appeals, Eleventh Circuit

September 10, 2019

PATRICIA I. ERMINI, a.k.a. Patricia I. Mapes, Plaintiff-Appellee,
MIKE SCOTT, in his official capacity as Sheriff of Lee County, Florida, Defendant-Appellant.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:15-cv-00701-GAP-CM

          Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.


         This case arises out of a routine wellness check that went badly awry. The underlying episode began with three Lee County deputies stopping by to check on 71-year-old Patricia Ermini at the request of her daughter-and ended with the deputies shooting Ermini five times. Ermini-who, incredibly, survived-later sued, bringing a litany of state- and federal-law claims against the deputies and Lee County Sheriff Mike Scott. Only one claim made it past summary judgment-a state-law cause of action against Sheriff Scott in his official capacity, seeking to hold him vicariously liable for the deputies' negligence in conducting the check. That claim went to trial, the jury ruled in Ermini's favor, and the district court thereafter denied Scott's motion for new trial.

         Scott now appeals the judgment against him as well as the court's post-judgment order refusing his new-trial request. Scott argues (1) that the district court improperly instructed the jury that if it concluded that he proved Florida's "alcohol defense," Ermini couldn't recover; (2) that by introducing evidence regarding certain aspects of the deputies' conduct during the check, Ermini impermissibly pursued a nonexistent and precluded "negligent-use-of-force" claim; (3) that Ermini's lawyer made a forbidden "golden-rule" argument when she asked the jurors to "imagine if someone was in [their] house"; and (4) that the trial court abused its discretion by admitting immaterial character evidence concerning two deputies' post-event (and unrelated) terminations from the Lee County Sheriff's Office. Because we find no errors that merit a new trial, we affirm the judgment in Ermini's favor.



         Following a worrisome telephone conversation, Patricia Ermini's daughter, Maine resident Robin LaCasse, called the Lee County Sheriff's Office to request a wellness check on her elderly mother. During the call, Ermini had seemed distraught-and possibly suicidal-and LaCasse hadn't been able to get back in touch with her. LaCasse told the Sheriff's Office that Ermini might have been drinking wine and that she had a handgun in her home. Shortly after LaCasse's phone call, Deputies Richard Lisenbee, Robert Hamer, and Charlene Palmese were dispatched to Ermini's home; they knew that Ermini could be intoxicated and that she owned a gun.

         Lisenbee arrived on the scene first, banged on the door, and yelled "Sheriff's Office," but got no response. When he opened the unlocked door, Lisenbee found the house dark, quiet, and in disarray, an empty wine bottle on the floor. He retreated out of the house and waited for backup. When Palmese arrived, she and Lisenbee reentered the home and announced themselves, but again got no response. The deputies opted to wait for Hamer before continuing the wellness check. Once all three officers were on the scene, they again announced themselves and entered the dark living room with their flashlights illuminated and their weapons drawn. They made their way to the closed double doors leading to Ermini's master bedroom.

         Lisenbee opened the right door and shined his flashlight into the room, where he saw Ermini lying in bed. Ermini awoke, confused by the strangers in her bedroom-she testified that she remembered asking "who's there?" and telling the intruders that she had a gun and to get out of her house. She also testified that she recalled the deputies saying that they were with the Sheriff's Department and her responding that she hadn't called the Sheriff and that they had better get out of her house. Lisenbee began backing out of the bedroom as Ermini, clothed only in her undergarments, moved toward the door.

         The deputies and Ermini recall very differently the critical moments that followed. Hamer testified that Ermini walked toward him with both hands on her gun, which she pointed directly at him. Ermini doesn't remember grabbing her gun or pointing it at anyone. In any event, Hamer, who was outside the bedroom, fired seven rounds through the partially closed bedroom door, five of which hit Ermini, who collapsed onto the floor. (Further to the parties' dispute, Ermini's gun was found on the floor to the left of where she fell after being shot, and a bullet from her weapon was later found lodged in the ceiling.) Hamer began providing emergency medical care to a still-confused Ermini, who (according to the officers and paramedics) repeatedly asked why the deputies were in her home and why they were trying to kill her. Ermini was taken to the hospital for further treatment, and she survived.


         Ermini sued Deputies Lisenbee, Hamer, and Palmese, as well as Sheriff Scott and William Murphy, an additional officer who hadn't been on the scene. Among other claims, Ermini alleged excessive force and false arrest under the Fourth Amendment, battery, negligent infliction of emotional distress, and negligence in conducting the wellness check under Florida law. Only Ermini's vicarious-liability claim against Scott for the allegedly negligent wellness check survived summary judgment. That claim went to trial, and the jury ultimately ruled in Ermini's favor, awarding her $750, 000 in damages.

         Several aspects of the pre-trial and trial proceedings are relevant to this appeal. We'll take them chronologically. First, before trial, Scott submitted a motion in limine under Federal Rules of Evidence 403 and 404(b) to exclude evidence surrounding Lisenbee's and Hamer's post-event (and unrelated) terminations from the Sheriff's Office. The district court held a telephonic hearing and denied the motion, stating that it would allow limited questioning about the timing of and general reasons for the officers' terminations but that it would exclude additional details and written reports. Second, during closing arguments, Ermini's lawyer asked the jury, "Can you imagine if someone was in your house that you wouldn't try to figure out who is that[?]" Scott's lawyer objected, stating "That's not right, golden rule." The district court overruled the objection without further elaboration.

         The third item pertains to Scott's "alcohol defense," which, under Florida law, prevents a plaintiff from recovering damages if either her "normal faculties were impaired" or she had a blood-alcohol level of 0.08% or higher, and as a result she was more than 50% responsible for her own harm. Fla. Stat. § 768.36(2)(a)- (b) (2019). The district court instructed the jury that if it found that Scott had proved the alcohol defense by a preponderance of the evidence, Ermini couldn't recover. A similar statement was included on the special verdict form given to the jury, which informed jurors that if they found in Scott's favor on the defense, they didn't need to fill out the remainder of the form. Scott objected to the court's alcohol-defense instruction at trial.

         Following the jury's verdict, Scott moved for a new trial and renewed his motion for judgment as a matter of law. As relevant here, he argued that the evidence about Lisenbee's and Hamer's terminations should have been excluded and that Ermini had improperly introduced evidence about the deputies' use of force, which Scott said had no place in a negligent-wellness-check case. The district court denied both motions. Scott appeals the district court's judgment and its order denying his motion for new trial.[1]


         Scott's first argument challenges the district court's jury instructions and verdict-form entry pertaining to Florida's alcohol defense, which is codified at Fla. Stat. § 768.36. The district court instructed the jury as follows:

On the first defense, the issue for you to decide is whether Patricia Ermini was under the influence of any alcoholic beverage to the extent that her normal faculties were impaired, or the plaintiff had a blood alcohol level of .08 or higher; and whether as a result of the influence of such alcoholic beverage, Patricia Ermini was more than 50 percent at fault for her own harm.
If you find that the sheriff has proven this defense by a preponderance of the evidence, then plaintiff's claim is barred and your verdict is for the sheriff.

         (emphasis added). Scott objected to the italicized portion of the charge, which wasn't included in the parties' proposed instructions. The verdict form similarly informed the jury that if it found that Scott had proved the alcohol defense, it didn't need to complete the remainder of the form.

         Scott contends that he is entitled to a new trial because the district court improperly told the jury about the legal effect of any finding under the alcohol defense-namely, that if proved the defense would bar Ermini from recovering. That information, he says, was unnecessary and was likely to evoke sympathy for Ermini. In particular, Scott asserts that just as evidence of a party's liability insurance is inadmissible at trial, see Fed. R. Evid. 411, information about the legal effect of an alcohol-impairment finding should be verboten since it too has the potential to improperly influence the jurors' emotions. We disagree.[2]


         Before jumping into the merits, we must determine at the outset whether state or federal law governs Scott's argument. We know, as a general matter, that in a diversity case in federal court, "[t]he substance of jury instructions . . . is governed by the applicable state law, but questions regarding procedural aspects of jury charges are controlled by federal law and federal rules." Pate v. Seaboard R.R., Inc., 819 F.2d 1074, 1081-82 (11th Cir. 1987) (citations omitted). This case, though, poses a more specific issue, which turns out to be a question of first impression for this Court: What law applies-state or federal-when deciding whether a district court judge properly informed the jury about the legal effect of its finding under state law? More particularly, is informing the jury about the legal effect of a factual finding bound up in the "substance of [the] jury instructions" within the meaning of Pate, and thus governed by the underlying state law, or is it instead a "procedural aspect[]" of the charge governed by federal law?

         We join the Seventh Circuit in holding that this issue is controlled by federal law, as it pertains to procedure, not substance. In Beul v. ASSE International, Inc., 233 F.3d 441 (7th Cir. 2000), the Seventh Circuit faced the question whether state or federal law governed a district court's handling of a question posed to it by a jury during its deliberations. The question pertained to the special verdict form, which required the jury "to enter separately . . . the amount of damages and the percentage of the plaintiff's comparative fault and not make the 'bottom line' computation, which involve[d] deducting from the amount of damages that amount times the plaintiff's percentage of comparative fault." Id. at 449. In particular, the jury asked, "What bearing do the negligence factors"-i.e., the fault percentages assigned to the parties-"have on the amounts we may or may not choose to ...

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