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.
from the United States District Court for the Middle District
of Florida D.C. Docket No. 2:15-cv-00701-GAP-CM
WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.
NEWSOM, CIRCUIT JUDGE:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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
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
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?
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 ...