JUANITA ARRINGTON , MICHAEL COKES , and ISIAH STEVENSON v. CITY OF CHICAGO and DEAN W. EWING

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 23-2093, 23-2102 & 23-2284
JUANITA A RRINGTON , M ICHAEL C OKES ,
and I SIAH S TEVENSON ,
Plaintiffs-Appellants,
v.
C ITY OF C HICAGO and DEAN W. EWING,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 1:17-cv-05345 & 1:17-cv-04839 — Thomas M. Durkin, Judge.
____________________
A RGUED S EPTEMBER 13, 2024 — DECIDED A UGUST 1, 2025
____________________
Before EASTERBROOK, JACKSON -A KIWUMI , and K OLAR ,
Circuit Judges.
JACKSON -A KIWUMI , Circuit Judge. On July 1, 2016, in a sub-
urban shopping center parking lot, Michael Cokes, Isaiah Ste-
venson, and Ronald Arrington waited in a Pontiac for their
fellow passenger, Jimmie Malone. While they waited, Malone
robbed a restaurant manager. When Malone returned to the
car with the spoils of that robbery, the three men drove him

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2 Nos. 23-2093, 23-2102 & 23-2284
away from the scene, pulled over on the side of a road, and
let him take over as the driver. Later, when Illinois state troop-
ers stopped the car, the men refused orders to exit. Instead,
they again stuck with Malone, who sped off.
The state troopers pursued the car. During the chase,
Malone floored it sixty miles per hour northbound down a
southbound-only residential road. Hoping to assist in the
pursuit, Chicago Police Department Officer Dean Ewing
drove his unmarked Ford Explorer fifty-five miles per hour
eastbound on an intersecting street. Tragically, the cars col-
lided at the intersection. Ewing’s Ford broadsided and
flipped the Pontiac. The impact seriously injured Cokes, Ste-
venson, and all four officers in Ewing’s Ford. It killed Malone
and Arrington.
Cokes, Stevenson, and Juanita Arrington (as the adminis-
trator of Ronald Arrington’s estate) eventually sued the City
of Chicago and Officer Ewing, alleging a variety of torts re-
lated to the collision. Following a nine-day trial, a jury found
in the defendants’ favor on all claims. After unsuccessfully
moving for a new trial, the plaintiffs brought these consoli-
dated appeals challenging the district court’s decisions on af-
firmative defenses, jury instructions, and the admissibility of
evidence. For the reasons discussed below, we conclude that
the district court did not commit legal error or abuse its dis-
cretion. We affirm.
I
A. Pre-Chase Developments
The morning of the deadly collision, Cokes and Stevenson
later recounted at trial, Arrington and Malone picked them
up in a gold Pontiac that belonged to Malone’s girlfriend.

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Nos. 23-2093, 23-2102 & 23-2284 3
Arrington was driving at the time. He picked up Cokes first
and then Stevenson, who had asked for a ride to visit his chil-
dren. On the way there, Malone directed Arrington to stop the
car at a Tinley Park, Illinois, shopping center.
A witness testified that Arrington circled the center’s
parking lot twice before parking. Malone then got out and
told Arrington he had to “take care of some business.” The
same witness testified, as did Cokes, that Malone chased a
woman, grabbed her by the back of her jacket, and then ran in
the opposite direction.
As Malone hurried back to the Pontiac, Arrington re-
versed out of the parking space with the passenger door still
open. Arrington then drove away, and the other occupants
began “bickering” with Malone. As a result of the bickering,
Arrington eventually pulled over, refused to drive any far-
ther, and told Malone: “[Y]ou can drive your own car.”
Malone, who Stevenson testified was known as a “getaway
driver,” switched seats and resumed the escape.
While Malone drove away, the woman he robbed spoke
with police. She told them that he had taken a bank bag con-
taining $1,300, and she provided a description of the vehicle:
a gold Pontiac with tinted windows and no license plate. A
car matching that description then passed Illinois State Police
Troopers Brian Walker and Charles Dixon, who in their sepa-
rate squad cars had received a report of a robbery over the
Illinois State Police Emergency Radio Network. Both Walker
and Dixon followed the Pontiac to an exit ramp where Walker
activated his lights and siren. The Pontiac briefly came to a
stop at that point. As Walker and Dixon approached the Pon-
tiac, they repeatedly yelled for the occupants to exit the car.
But nobody heeded the commands.

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4 Nos. 23-2093, 23-2102 & 23-2284
B. Police Chase and Collision
Within about twenty seconds of stopping, Malone sped
away. Walker gave chase. As he followed Malone, Walker re-
ported his location to the state police emergency radio dis-
patchers at frequent intervals. He also asked for Chicago Po-
lice Department (CPD) assistance.
When asked to describe Malone’s driving, Stevenson tes-
tified that Malone fled away “[c]razy as hell, driving wild and
reckless.” Walker testified that Malone drove erratically,
through red lights, into oncoming taffic, and at speeds ex-
ceeding seventy-five miles per hour through dense residential
areas. During the chase, the Pontiac entered an alley and its
left rear passenger door—where Arrington was seated—
opened briefly, and someone may have attempted to exit the
car.
CPD Officer Ewing, who was on patrol in an unmarked
Ford Explorer carrying three other officers, received an alert
from the Office of Emergency Management Communications
(OEMC) about “a pursuit at 123rd [Street] and Halsted
[Street]” involving a gold Pontiac wanted for armed robbery.
Based on his experience, Ewing suspected that the pursuing
state trooper was alone. So, to assist that trooper with his pur-
suit, Ewing drove four blocks from South 119th Street and
Halsted Street to the reported area. He did so without obtain-
ing supervisory approval to engage in an interjurisdictional
pursuit as required under CPD general orders.
Since the Illinois State Police and CPD use different radio
networks, Ewing could not hear Walker’s location call-outs in
real time. OEMC provided multiple delayed updates to
Ewing and the officers with him. Based on those OEMC call-

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Nos. 23-2093, 23-2102 & 23-2284 5
outs, Ewing believed that the Pontiac was headed eastbound
down West 125th Street from South Union Avenue, which
would have meant the car was southeast of him and about
five blocks away. With that location in mind, Ewing acceler-
ated to “catch up with [the Pontiac].”
Ewing activated his emergency lights. Disregarding a stop
sign, he entered the intersection of West 124th Street and
South Union Avenue with his foot still pressing on the accel-
erator. Relying on a review of the squad car’s black box (the
Event Data Recorder), a crash reconstruction expert, Adam
Hyde, testified about Ewing’s driving leading up to the crash.
Hyde testified that Ewing briefly pressed his brake pedal one-
and-a-half seconds before the crash, pressed his accelerator
52.2% one second before the crash, steered milliseconds be-
fore the crash, and firmly pressed the brake pedal two-tenths
of a second before the crash—about fourteen feet from im-
pact. Hyde testified that Ewing moved the steering wheel “to
the right slightly, and then ... move[d] back to the straight-
ahead position.” Hyde also testified that, before Ewing took
his foot off the gas and braked briefly, he approached the in-
tersection at full throttle (“pedal to the metal”).
Meanwhile, Malone was himself traveling full throttle at
approximately sixty miles per hour northbound on South Un-
ion Avenue, a one-way-southbound street with a speed limit
of thirty miles per hour. Dr. Jeremy Bauer, a forensic biome-
chanics and accident reconstruction expert, testified that
Malone never once pressed the brake pedal in the five seconds
before impact. Ewing testified that, as he entered the intersec-
tion, he “saw a flash” and “tried to stop.” He testified that the
Pontiac entered his field of vision less than one second before
the impact.

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6 Nos. 23-2093, 23-2102 & 23-2284
C. Post-Collision Developments
Malone and Arrington did not survive the collision. Cokes
and Stevenson did, but they sustained injuries and were ar-
rested and charged with felony robbery. Of the $1,300 that
was stolen by Malone, $800 was recovered from Malone’s per-
son and $200 was recovered from Cokes’s clothing. Stevenson
and Cokes both later pleaded guilty to misdemeanor theft in
connection with the incident.
The Civilian Office of Police Accountability (COPA), Chi-
cago’s independent agency that reviews police conduct, in-
vestigated the incident. That investigation culminated in a
twenty-nine-page report recommending that Ewing receive
two ninety-day suspensions for speeding and disregarding a
stop sign. The report concluded that “Ewing’s lack of due care
and due regard when operating his vehicle” was one of three
causes of the crash, along with Malone’s traffic violations and
the “problematic and delayed” radio communications. As for
Ewing’s conduct specifically, the report found that Ewing vi-
olated CPD policies and Illinois law by operating his squad
car without due regard for the safety of other traffic.
D. District Court Proceedings
Cokes, Stevenson, and Arrington’s estate sued the City of
Chicago and Officer Ewing in the Circuit Court of Cook
County. They brought the following claims: excessive use of
force in violation of the Fourth Amendment under 42 U.S.C.
§ 1983; civil battery; willful and wanton conduct; willful and
wanton negligence; indemnification; respondeat superior;
and a claim under Monell v. New York Department of Social Ser-
vices, 436 U.S 658 (1978). The defendants then removed the
case to federal court.

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Nos. 23-2093, 23-2102 & 23-2284 7
Once in federal court, the plaintiffs amended their com-
plaints, and the defendants submitted amended answers,
which included affirmative defenses. The plaintiffs moved to
strike those affirmative defenses as untimely. The district
court denied that motion without prejudice but allowed for
limited discovery on the contested issues. The parties subse-
quently filed cross-motions for summary judgment. The court
denied the defendants’ motion. It also denied the plaintiffs’
motion for partial summary judgment as to three of the de-
fendants’ affirmative defenses: failure to mitigate damages;
joint enterprise; and failure to control driver or take precau-
tions. But it granted summary judgment to the plaintiffs as to
several of the defendants’ affirmative defenses, including the
defense of unavoidable collision. Lastly, the plaintiffs filed
motions in limine, including (1) a motion to admit the COPA
report and (2) a motion to bar testimony by Stevenson and
Cokes about Arrington’s conduct and conversations leading
up to the crash pursuant to the Illinois Dead Man’s Act. The
district court denied both motions in limine but allowed for
the introduction of the COPA report if Ewing were to “open
the door via his own volunteered testimony or testimony he
elicits from others.” Arrington v. City of Chicago, No. 1:17-cv-
05345, Order, Dkt. 286 at *5 (N.D. Ill. Aug. 8, 2022).
With those evidentiary issues settled, trial commenced on
the plaintiffs’ claims against Ewing for excessive force, bat-
tery, willful and wanton conduct, and negligence. (The City
of Chicago was not listed on the jury verdict forms because it
stipulated before trial that Ewing was acting within the scope
of his authority, so it would pay any compensatory damages.)
While testifying at trial, Ewing vaguely referenced a nonex-
istent ruling that his crash was unavoidable. The plaintiffs ar-
gued that this opened the door to introduction of the COPA

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8 Nos. 23-2093, 23-2102 & 23-2284
report. The district court overruled those objections but ad-
monished Ewing and struck some of Ewing’s testimony. At
the conclusion of trial, the jury ruled in the defendants’ favor
on all counts. Nevertheless, as noted in the special verdict
forms, the jury rejected the defendants’ joint enterprise theory
of imputed negligence that, if proven, would have meant that
any contributory fault attributed to Malone would be at-
tributed to the plaintiffs as well. See Grubb v. Ill. Terminal Co.,
8 N.E.2d 934, 938–39 (Ill. 1937) (“[W]hen two or more persons
are engaged in a joint enterprise or undertaking in the use of
an automobile, the contributory negligence of one will bar re-
covery by either, where the claimed damage arises out of a
matter within the scope of a joint undertaking….”).
After trial, the plaintiffs moved for a new trial under Fed-
eral Rule of Civil Procedure 59. They argued, in relevant part,
that the district court erred with three decisions: (1) allowing
the defendants to pursue a joint enterprise theory of imputed
negligence; (2) concluding that the Illinois Dead Man’s Act
did not govern this case and allowing questioning and testi-
mony as to Arrington’s conduct and communications; and (3)
precluding the plaintiffs from introducing the COPA report.
The court denied those motions.
Now on appeal, the plaintiffs challenge the district court’s
denial of their motions for a new trial. When ruling on their
post-trial motions, the district court restated the reasons for
its rulings before and during trial, and defended its decisions
about the three issues identified above. With the first two
issues—allowing the joint enterprise defense and deeming
the Illinois Dead Man’s Act inapplicable—the court reasoned
that any error would have been harmless considering the
evidence and the jury’s findings. As for the third issue—

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Nos. 23-2093, 23-2102 & 23-2284 9
barring the COPA report—the district court added that
Ewing had not opened the door to the report’s introduction
and the court had cured any “minimal prejudice” from
Ewing’s statements by striking his testimony, admonishing
him, and offering limiting instructions.
In Part II below, we evaluate the district court’s decision
on the joint enterprise defense. In Part III, we examine the
court’s evidentiary decisions on the Illinois Dead Man’s Act
and the COPA report.
II
The plaintiffs raise two related but distinct challenges to
the district court’s decision allowing the defendants to intro-
duce a joint enterprise theory of contributory negligence at
trial. First, they argue that the district court abused its discre-
tion in allowing the defendants to plead the theory late,
thereby limiting discovery on the issue. Second, they argue it
was legal error for the court to permit the defendants to plead
the theory at all under Illinois law.
“We review for abuse of discretion a district court’s dis-
cretionary decision to allow late assertion of an affirmative
defense but review de novo the underlying legal issues.” Bur-
ton v. Ghosh, 961 F.3d 960, 964 (7th Cir. 2020) (citations omit-
ted). When reviewing the district court’s decision to deny
plaintiffs’ motion for judgment as a matter of law as to the
joint enterprise defense theory, we construe the facts in favor
of the defendants. Whitehead v. Bond, 680 F.3d 919, 925 (7th Cir.
2012) (“Because the defendants prevailed at trial, we construe
the facts strictly in their favor.”).

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10 Nos. 23-2093, 23-2102 & 23-2284
A. Timing of the Joint Enterprise Theory
The plaintiffs argue that the defense was untimely raised
but their argument is waived. Here is what happened: when
the plaintiffs moved to strike the defense, the district court,
rather than granting the motion, gave the plaintiffs an extra
thirty days of discovery into the issues raised by the defense.
The court also set a status conference for the conclusion of that
added discovery period to address whether the remedy was
adequate. The plaintiffs did not object to the amount of added
time or request a further extension. Yet, they now argue for
the first time on appeal that the added discovery time was a
“woefully inadequate” remedy. That argument is untimely.
Lane v. Structural Iron Workers Loc. No. 1 Pension Tr. Fund, 74
F.4th 445, 450 (7th Cir. 2023) (“It is a cardinal rule of appellate
practice that we ignore arguments not presented below.”).
Thus, regardless of any merit, we cannot reach this timing ar-
gument.
B. Pleading the Joint Enterprise Theory
In addition to their timing argument, the plaintiffs con-
tend that the district court erred as a matter of law in allowing
the defendants to plead as an affirmative defense a joint en-
terprise theory of contributory negligence. The plaintiffs’ ar-
gument has two parts. First, they argue that Illinois state law
precludes application of the theory to cases like this one. Sec-
ond, they argue that there was insufficient evidence to plead
the theory. For the reasons below, both contentions are una-
vailing.
1. The theory’s application to criminal ventures
As an initial matter, Cokes and Stevenson argue that the
district court erred by expanding the joint enterprise theory

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Nos. 23-2093, 23-2102 & 23-2284 11
of contributory negligence beyond the bounds delimited by
Illinois courts. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938) (requiring federal courts to apply state substantive law
in certain circumstances). At issue here is the district court’s
jury instructions which set forth the joint enterprise theory’s
elements as follows:
One of the issues to be decided by you is
whether Ronald Arrington, Isiah Stevenson, Mi-
chael Cokes and Jimmie Malone were engaged
in a joint enterprise. A joint enterprise exists if
these four elements are present:
(1) An agreement, express or implied, be-
tween Ronald Arrington, Isiah Stevenson,
Michael Cokes and Jimmie Malone; and
(2) A common purpose to be carried out by
Ronald Arrington, Isiah Stevenson, Michael
Cokes and Jimmie Malone; and
(3) A mutual profit-seeking endeavor for
that purpose between Ronald Arrington,
Isiah Stevenson, Michael Cokes and Jimmie
Malone; and
(4) An understanding between them that
each had a right to share in the control of the
operation of the car.
As to the third element, the mutual profit-seek-
ing endeavor need not be a lawful endeavor.
As to the fourth element, the question for you to
decide is whether there was a right in each to

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12 Nos. 23-2093, 23-2102 & 23-2284
share the control of the operation of the car ra-
ther than the actual exercise of the right.
As revealed by its answers to the special verdict questions, the
jury found that the plaintiffs had a “common purpose” but
were not engaged in a joint enterprise because they did not
have a “mutual profit-seeking endeavor” and did not have
“an understanding between them that each had a right to
share in the control of the operation of the Pontiac Grand
Prix.”
Relying on Illinois state caselaw and pattern jury instruc-
tions, Cokes and Stevenson argue that Illinois courts have
limited the application of this theory and have required those
raising it to prove that the supposed joint venturers had an
agreement to carry out a legally legitimate business enter-
prise. They cite, for example, the Illinois Pattern Jury Instruc-
tions, which provide the elements of a joint enterprise theory
of imputed negligence as follows:
A joint enterprise exists if these four elements
are present:
(1) An agreement, express or implied, be-
tween ____ and ____; and
(2) A common purpose to be carried out by
____ and ____; and
(3) A common business interest in that pur-
pose between ____ and ____; and
(4) An understanding between them that
each had a right to share in the control of the
operation of the car.

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Nos. 23-2093, 23-2102 & 23-2284 13
As to the fourth element, the question for you to
decide is whether there was a right in each to
share the control of the operation of the car ra-
ther than the actual exercise of the right.
Ill. Pattern Civil Jury Instructions, § 72.04. In light of those au-
thorities, the plaintiffs argue that the district court erred by
substituting the requirement for a “common business inter-
est” (what the plaintiffs refer to as the “legitimate purpose”
element), with an instruction requiring a “mutual-profit seek-
ing endeavor.”
The problem with this argument is that there is no Illinois
caselaw or statutory authority expressly limiting the joint en-
terprise theory to legitimate business ventures. Aptly stated
by the district court, “[T]he case law does not clearly foreclose
application of the joint enterprise rule to an alleged criminal
enterprise.” Arrington v. City of Chicago, No. 1:17-cv-05345,
2022 WL 3357272, at *3 (N.D. Ill. Aug. 15, 2022). Acknowledg-
ing the frequent use of terms like “business enterprise” or
“common business purpose” by Illinois state courts, the dis-
trict court properly reasoned that such language is meant to
distinguish a “true joint enterprise” from “one in which the
vehicle occupants are sharing a car as a matter of convenience
or because they are simply going to the same place.” Id. at *3
(discussing cases). In support of that interpretation, the dis-
trict court noted that “historical applications of the rule [in Il-
linois] … show that it does not require the level of formality
that the term ‘business’ might suggest.” Id. (citing Grubb, 8
N.E.2d at 938–39 (finding a joint enterprise where sisters
agreed to travel together to buy home decorations)).
As for the Illinois pattern jury instruction, cited by Cokes
and Stevenson, two points are worth noting. First, although a

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14 Nos. 23-2093, 23-2102 & 23-2284
“helpful starting point,” pattern jury instructions are not nec-
essarily binding. United States v. Edwards, 869 F.3d 490, 496–97
(7th Cir. 2017) (“Pattern instructions are not intended to be
used mechanically and uncritically.”); United States v. Smith,
109 F.4th 888, 894 (7th Cir. 2024) (“Illinois pattern jury instruc-
tions are used only when they accurately state the law.” (quot-
ing People v. Peete, 252 N.E.2d 689, 695 (Ill. App. Ct. 2001))).
Second, the Illinois pattern jury instruction that Cokes and
Stevenson rely on approvingly cites not only Grubb, but also
the Second Restatement of Torts, which broadly defines joint
enterprises and does not limit them to legal ventures. Ill. Pat-
tern Civil Jury Instructions, § 72.04 Comment; see also Restate-
ment (Second) of Torts, § 491 Comment b. (“A ‘joint enter-
prise’ is in the nature of a partnership, but is a broader and
more inclusive term…. A joint enterprise includes a partner-
ship, but it also includes less formal arrangements for coopera-
tion, for a more limited period of time and a more limited pur-
pose.” (emphasis added)); id. Comment c. (“The elements
which are essential to a joint enterprise are commonly stated
to be four: … (3) a community of pecuniary interest in that
purpose, among the members ….”).
On appeal, Cokes and Stevenson point to intermediate Il-
linois appellate courts’ dicta that arguably expresses unease
with the liberal application of the theory in Grubb. But the
plaintiffs have not identified any authority overruling Grubb
or even expressly disagreeing with Grubb on this point. In-
deed, some of the cases Cokes and Stevenson cite on this point
support the district court’s ruling. See, e.g., Matesevac v. County
of Will, 416 N.E.2d 807, 811 (Ill. App. Ct. 1981) (affirming jury
instruction on joint enterprise where purpose of the trip was
to view farmhouse for rent). Thus, plaintiffs’ argument that

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Nos. 23-2093, 23-2102 & 23-2284 15
Illinois law precludes the application of the joint defense the-
ory to this criminal case is uncompelling.
2. There was more than “a mere scintilla” of
evidence of a joint enterprise
The plaintiffs’ second challenge to the defendants’ joint
enterprise theory is that it was not supported by sufficient ev-
idence and should not have been considered by the jury. Spe-
cifically, they argue that “the record is devoid of evidence
supporting the elements of the doctrine, expanded or not.”
Recall, the district court properly instructed the jury that
those elements are: (1) an agreement; (2) a common purpose;
(3) a mutual profit-seeking endeavor for that purpose; and (4)
an understanding that each had a right to share in the control
of the operation of the car. So instructed, the jury rejected the
theory, finding the defendants proved only the second ele-
ment (common purpose).
To prevail on this argument about the sufficiency of the
evidence, Cokes and Stevenson must overcome a staggeringly
deferential standard. See Filipovich v. K & R Exp. Sys., Inc., 391
F.3d 859, 863 (7th Cir. 2004) (“A legally sufficient amount of
evidence need not be overwhelming, but it must be more than
a ‘mere scintilla.’” (quoting Massey v. Blue Cross-Blue Shield of
Ill., 266 F.3d 922, 924 (7th Cir. 2000))); see also May v. Chrysler
Group, LLC, 716 F.3d 963, 971 (7th Cir. 2013) (observing that
appellate court engages in a “highly charitable assessment of
the evidence”).
The district court correctly concluded that there was
clearly “more than a mere scintilla” of evidence to allow the
defendants to plead that theory. We agree based on the evi-
dence the court considered, as well as other evidence before

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16 Nos. 23-2093, 23-2102 & 23-2284
the jury. Circumstantial as it was, the evidence included: (1)
video recordings of the lead-up to the robbery showing the
Pontiac possibly “stalking” the robbery victim when circling
the lot twice; (2) the plaintiffs’ knowledge of Malone’s repu-
tation as a “getaway driver”; (3) that Arrington reversed the
car, reoriented it, and drove Malone away when Malone re-
turned from the robbery; (4) that the plaintiffs let Malone
drive the car and did not exit the car despite at least three op-
portunities to do so—namely, in the parking lot, on the high-
way before Malone took over as driver, and when Malone
briefly stopped for the state troopers; (5) Cokes and Steven-
son’s subsequent convictions for theft in connection with the
robbery; and (6) the cash recovered from Cokes’ clothing. As
such, the theory was supported by more than a “mere scintilla
of evidence.” The district court did not err in allowing the de-
fendants to plead and submit evidence on a joint enterprise
theory of imputed negligence.
For these reasons, we affirm the district court’s decision to
allow the defendants to plead and argue a joint enterprise the-
ory of contributory negligence. Before proceeding, we pause
to address what may be a source of confusion for the plain-
tiffs. One way for the jury to find that the plaintiffs were con-
tributorily negligent was to impute Malone’s negligence onto
them under a joint enterprise theory. Another way to reach
that same outcome, was for the jury to find that the plaintiffs
failed to take precautions by, for example, letting Malone
drive and not getting out of the car when they had the chance.
With the exception of the COPA report’s admissibility, all the
issues the plaintiffs challenge on appeal go to that first ave-
nue: the defendants’ joint enterprise theory. But the jury re-
jected that theory and instead opted for the another avenue,
which plaintiffs do not challenge on appeal: the jury may have

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Nos. 23-2093, 23-2102 & 23-2284 17
implicitly found that Ewing was not a proximate cause of the
plaintiffs’ injuries. This is one of the reasons why the plain-
tiffs’ challenges to the joint enterprise defense cannot upend
the jury verdict.
III
We turn to the two issues the plaintiffs raise about the dis-
trict court’s evidentiary decisions. First, Arrington’s estate ar-
gues that the Illinois Dead Man’s Act should have governed
the admissibility of conversations and events that occurred in
Arrington’s presence. Second, the plaintiffs challenge the dis-
trict court’s decision to bar the introduction of the COPA re-
port.
A. Illinois Dead Man’s Act
Subject to some exceptions, the Illinois Dead Man’s Act
precludes adverse parties or persons from testifying to any
conversation involving the decedent or any event which took
place in the presence of the decedent. See 735 ILCS 5/8-201. In
denying the motion in limine filed by Arrington’s estate, the
district court concluded that the Illinois Dead Man’s Act does
not apply under Federal Rule of Evidence 601 because the es-
tate’s “various state claims ... all overlap with the federal
claim that arises from the same crash.” Arrington, at *2 (Aug.
15, 2022). On appeal, Arrington’s estate argues that the district
court erred in reaching that conclusion. We review a district
court’s interpretations of the rules of evidence de novo. United
States v. Hamzeh, 986 F.3d 1048, 1052 (7th Cir. 2021).
1. Rule 601 governed, not Illinois law
Federal Rule of Evidence 601 provides a default presump-
tion of witnesses’ competency to testify. Estate of Suskovich v.
Anthem Health Plans of Va., Inc., 553 F.3d 559, 570 (7th Cir.

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18 Nos. 23-2093, 23-2102 & 23-2284
2009). But in civil cases it also carves out from that presump-
tion state law exceptions that “govern[] a witness’s compe-
tency regarding a claim or defense for which state law sup-
plies the rule of decision.” Fed. R. Evid. 601. “[T]he legislative
history of Rule 601 reveals that the purpose of this exception
was, precisely, to preserve state dead man’s laws in cases ...
where state law supplies the rule of decision.” Lovejoy Elecs.,
Inc. v. O’Berto, 873 F.2d 1001, 1005 (7th Cir. 1989) (citing H.R.
Rep. No. 650, 93d Cong., 1st Sess.9 (1973)). One such state law
is, of course, the Illinois Dead Man’s Act. Thus, the question
presented in this appeal is whether state law supplied the
“rule of decision” for purposes of Rule 601. In cases involving
only state claims, the answer is easy. But, in cases involving
mixed federal and state claims, the answer is not so obvious.
The Supreme Court and our court have not supplied an
answer to that question, but we can gain insight from a well-
reasoned district court decision on the issue. In Donohoe v.
Consolidated Operating & Production Corporation, Judge Milton
Shadur was presented with the question of whether to apply
the Illinois Dead Man’s Act to a federal case involving a mix-
ture of state and federal claims. 736 F. Supp. 845, 860–61 (N.D.
Ill. 1990), rev’d on other grounds, 982 F.2d 1130 (7th Cir. 1992).
Judge Shadur began his analysis by observing that “where a
federal claim is at issue[,] the Dead-Man’s Act is inapplica-
ble.” Id. at 860 (citing Sundstrand Corp. v. Sun Chemical Corp.,
553 F.2d 1033, 1051 (7th Cir. 1977)). He then turned to the Sen-
ate Judiciary Committee Notes to Federal Rule of Evidence
501 (governing privileges), which similarly provides for def-
erence to state evidentiary standards when state law supplies
the rule of decision. Id. at 860–61. Those notes read: “If the rule
proposed here results in two conflicting bodies of privilege
law applying to the same piece of evidence in the same case,

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Nos. 23-2093, 23-2102 & 23-2284 19
it is contemplated that the rule favoring reception of the evi-
dence should be applied.” Id. (quoting Notes of Committee on
the Judiciary, Senate Report No. 93-1277). Applying the prin-
ciples from the notes on Rule 501 to Rule 601, Judge Shadur
ruled that the Illinois Dead Man’s Act did not govern and
therefore the decedent’s contested statements and activities
were admissible. Id. at 861 (“[T]his Court finds the reasoning
of the Judiciary Committee to be equally persuasive as to the
issue of witness competency as it is to privilege.”). That deci-
sion followed from the fact that the decedent-related testi-
mony related to not only the plaintiff’s state common law
fraud claims but also the plaintiff’s federal securities and
racketeering claims. Id. at 846, 860–61.
Applying that reasoning to this case, the next question
would be whether the decedent-related testimony in this case
relates to both the state and federal claims brought by Arring-
ton’s estate. As for what “relates to” means in this context,
there are two additional decisions from which we can gain in-
sight.
First, in Estate of Suskovich, we concluded that Rule 601—
rather than Indiana’s Dead Man’s Statute—applied to the
competency of witnesses “insofar as the evidence relate[d] to
any of the federal claims.” 553 F.3d at 570 (citing approvingly
Donohoe, 736 F. Supp. at 860–61). In that case, the plaintiff es-
tate raised two federal law claims and one state law claim for
the failure of the decedent’s employer to properly classify him
as an employee rather than a contractor. Id. The disputed tes-
timony “related to” both the state and federal claims, and the
Indiana Dead Man’s Statute would have applied only to tes-
timony that “related solely to the [state] common law claims.”
Id. at 561, 571 (emphasis added). The second case is Estate of

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20 Nos. 23-2093, 23-2102 & 23-2284
Chlopek v. Jarmusz, in which the plaintiff asserted state and
federal claims against a Chicago police officer who shot and
killed an individual who refused to drop a handgun. 877 F.
Supp. 1189, 1190–91, 1193 (N.D. Ill. 1995) (adopting the
Donohoe approach and concluding that the Illinois Dead
Man’s Act did not bar the officer’s testimony because that tes-
timony related to both the state law and federal law claims.).
Arrington’s estate argues that these two decisions are in-
applicable because they predate an amendment to Rule 601.
But that argument is a nonstarter because the amendment
was purely stylistic. See F ED. R. EVID. 601 Committee Note on
2011 Amendment. So, we proceed to the analysis.
As in Estate of Suskovich and Estate of Chlopek, the decedent-
related testimony in this case was relevant not only to the es-
tate’s state tort law claims, but also a federal claim. Specifi-
cally, the testimony related to the Arrington estate’s § 1983
claim, which required evidence that the officer’s conduct was
the proximate cause of the estate’s damages. See Clarett v. Rob-
erts, 657 F.3d 664, 673 (7th Cir. 2011) (describing plaintiff’s
burden of proving that the officer’s “use of excessive force
was the proximate cause of [the plaintiff’s] injury or harm” (em-
phasis added)). Of course, Arrington’s conduct—aiding
Malone’s escape and then declining opportunities to exit the
vehicle—was relevant to whether he was contributorily neg-
ligent for the ensuing accident and injuries, meaning Ewing’s
conduct was not the sole proximate cause. Brownell v. Figel,
950 F.2d 1285, 1287, 1295 (7th Cir. 1991) (“[The plaintiff’s]
drunken driving set in motion a chain of events, all of which
were reasonably foreseeable, leading to his injury. Because
the acts of [the defendants] did not proximately cause [the
plaintiff’s] injuries, the district court properly granted

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Nos. 23-2093, 23-2102 & 23-2284 21
defendants’ motion for summary judgment [on the plaintiff’s
§ 1983 excessive force claim].”).
Citing our decision in Santiago v. Lane, Arrington’s estate
argues that contributory negligence is not a defense to a
§ 1983 claim. 894 F.2d 218 (7th Cir. 1990). But Santiago dealt
with an Eighth Amendment deliberate indifference claim and
merely held that “contributory negligence is not a defense to
an allegation of intentional or reckless conduct.” Id. at 219,
224. Here, unlike in Santiago, law enforcement’s exertion of
force at least arguably did not rise to the level of intentional
or reckless conduct. Indeed, Arrington’s estate itself alleged
negligence and the jury found that Ewing did not intention-
ally cause the collision. Accordingly, evidence of contributory
negligence was admissible to defend against the Arrington es-
tate’s § 1983 claim. In turn, Arrington’s actions and state-
ments were relevant to that claim. Thus, adopting the reason-
ing in Donohoe, the testimony at issue was properly admitted
under Rule 601.
2. Any error did not have a substantial effect
Even if we were to assume that the district court did err
and the Illinois Dead Man’s Act governed rather than Rule
601, reversal would still be inappropriate because any error
likely did not impact the verdict. “We review evidentiary rul-
ings for abuse of discretion. But we will not reverse unless the
error likely affected the outcome of the trial.” Jackson v. Esser,
105 F.4th 948, 963 (7th Cir. 2024) (citation omitted). “An error
is harmless unless it ‘likely had a substantial effect on the
jury’s verdict and the result was inconsistent with substantial
justice.’” Id. at 964 (quoting Jordan v. Binns, 712 F.3d 1123, 1137
(7th Cir. 2013)).

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22 Nos. 23-2093, 23-2102 & 23-2284
We agree with the district court’s observation that the ad-
mitted evidence was mostly favorable to Arrington. That evi-
dence included testimony establishing that: (1) Arrington
tried to convince Malone to surrender; (2) Arrington was un-
happy with Malone’s robbery and argued with him about it;
(3) Arrington eventually refused to drive after the robbery;
and (4) Arrington refused Malone’s money when Malone
tried to pass some to the backseat. Moreover, the district court
barred the only disputed testimony that was unquestionably
adverse to Arrington: Stevenson’s post-crash statement to
Trooper Walker that “[Arrington] knew what he was getting
into.” With that in mind, we cannot say that any error on this
issue had a substantial effect on the jury’s verdict.
B. COPA Report
Federal Rule of Evidence 403 provides for the exclusion of
relevant evidence if the “probative value is substantially out-
weighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative ev-
idence.” Fed. R. Evid. 403. In rulings both before and during
trial, the district court barred the introduction of the COPA
report under Rule 403 because it found the risk of unfair prej-
udice, confusion of issues, and waste of time substantially
outweighed the report’s probative value. We generally re-
view a district court’s evidentiary rulings for abuse of discre-
tion. Common v. City of Chicago, 661 F.3d 940, 946 (7th Cir.
2011). In doing so, we give special deference to a district
court’s Rule 403 findings, and reverse “only when no reason-
able person could take the view adopted by the trial court.”
Id. (citation modified).

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Nos. 23-2093, 23-2102 & 23-2284 23
It is difficult for us to find an abuse of discretion here given
that the plaintiffs were free to introduce all the evidence relied
upon by COPA during its investigation. And, indeed, the
plaintiffs did introduce much of that evidence with the help
of two experts on accident reconstruction and police practices.
Effectively, this means that the only information in the COPA
report that was kept from the jury was COPA’s legal and ad-
ministrative conclusions—exactly the sort of information
Rule 403 is intended to safeguard against. Cf. Young v. James
Green Mgmt., Inc., 327 F.3d 616, 623–25 (7th Cir. 2003) (affirm-
ing decision to exclude EEOC findings of discrimination from
evidence in jury trial); Vance v. Peters, 97 F.3d 987, 994–95 (7th
Cir. 1996) (affirming decision to exclude report from state em-
ployee review officer concluding that correctional officer had
used excessive force). Thus, we cannot say that no reasonable
person would have taken the view that the district court did
here.
Moving beyond the COPA report’s initial admissibility,
the plaintiffs also contend that Ewing’s testimony opened the
door to the report and called for the report’s introduction as a
remedial measure. To support their contention that Ewing
opened the door to the report’s admission, the plaintiffs point
to his comments implying that he was exonerated. For exam-
ple, he remarked on the witness stand that the crash was
“ruled” unavoidable and the incident was “designated as a
non-preventable accident.” According to the plaintiffs,
Ewing’s statements, together with testimony from a defense
expert that the expert had reviewed a COPA investigative re-
port, invited the jury to infer that COPA had investigated the
incident and cleared Ewing of wrongdoing. With this infer-
ence in mind, the plaintiffs argue that the district court’s re-
fusal to admit the report after the defense opened the door on

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24 Nos. 23-2093, 23-2102 & 23-2284
multiple occasions and plaintiffs objected, “compounded [the
court’s] initial error.”
The plaintiffs’ desire to share COPA’s findings with the
jury is imminently rational. But the district court permissibly
resorted to less drastic measures given its concern that intro-
ducing the report would be an incommensurate remedy to the
alleged door-opening by the defense. The more conservative
measures the court chose included striking Ewing’s testi-
mony, admonishing him, and instructing the jury to disregard
the inappropriate portions of his statements. Of course, when
it comes to ameliorating the effect on jurors of statements like
Ewing’s, it is hard to put the “genie back in the bottle” or “un-
ring the bell,” so to speak. So, it is understandable that the
plaintiffs wanted to correct Ewing’s misstatements in a more
direct and forceful manner. Yet, under the highly deferential
standard of review that binds us, the plaintiffs have not
shown this issue merits remand for a new trial.
IV
Despite the shadow that the joint enterprise theory cast
over the trial and the possibility that the plaintiffs suffered
from guilt by association with Malone as a result, for the rea-
sons explained above, it is hard to conclude that a new trial is
warranted. Johnson v. Gen. Bd. of Pension & Health Benefits of the
United Methodist Church, 733 F.3d 722, 730 (7th Cir. 2013) (new
trial may be granted only “where the verdict is against the
clear weight of the evidence or the trial was not fair to the
moving party”). We see no error and no abuse of discretion in
the denial of the plaintiffs’ motions for a new trial. The judg-
ment is AFFIRMED.

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