George Vergara v. Scott Frey

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 6, 2023
Decided June 28, 2023
Before
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1433
GEORGE VERGARA,
Plaintiff-Appellant,
v.
SCOTT FREY, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 18-cv-07939
Manish Shah,
Judge.
O R D E R
After losing a jury trial on his civil rights claims against two police officers, see
42 U.S.C. § 1983, George Vergara moved for a new trial. He argued that the officers (1)
improperly withheld documents during discovery and (2) elicited prejudicial testimony
at trial about a prior arrest. The district court denied the motion. Because Vergara was
not prejudiced by the officers’ disclosure of documents and the district court properly
admitted evidence at trial, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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In December 2016, Vergara had a dispute at a tow yard over his car, and two
Forest Park, Illinois police officers—Scott Frey and Patrick Clarke—responded to the
scene. Vergara (who was 73 at the time of the dispute) testified that he was leaving the
tow yard when Frey, without saying anything, grabbed his wrist and knocked him to
the ground, causing him to hit his head on the pavement. Vergara said that Frey then
punched and kicked him.
The officers presented a different account. Frey testified that Vergara was
trespassing and that he grabbed Vergara’s left arm to escort him away. When Vergara
pulled his arm back and clenched his hand into a fist, Frey said that he again grabbed
Vergara’s arm. Vergara continued to resist, and the two men wrestled each other to the
ground. Frey then felt Vergara tugging at his gun holster, trying to take his service
weapon. Frey, concerned for his safety and that of his partner, punched Vergara twice
before Clarke pulled Vergara off Frey and handcuffed him.
Paramedics arrived on the scene, treated Vergara’s injuries, and took him to a
local hospital for closer examination. Later, Vergara was taken to a nearby veterans’
hospital, where X-rays showed that he had a fractured rib and a wrist injury. Vergara
was not prosecuted for any offenses.
Vergara sued the two officers under § 1983. He asserted that Frey used excessive
force against him, that Clarke failed to intervene, and that both officers falsely arrested
him. Before trial, Vergara moved to exclude any evidence of his prior criminal history,
which he maintained would prejudice the jury. The officers countered that they should
be permitted to present evidence that in October 2016—two months before the events at
issue—Vergara had injured his wrist while being arrested by police officers for
disorderly conduct in Oak Park, Illinois. Because Vergara sought damages for a wrist
injury arising out of the December arrest, the officers insisted that the circumstances
surrounding the October arrest and wrist injury were relevant to his claim.
At a pretrial conference, the district court granted Vergara’s motion in part and
denied it in part. The court warned the officers “to be very cautious and narrow” when
referring to Vergara’s criminal history. But the court added that Vergara’s prior
interaction with police could be probative evidence depending on how Vergara
presented his claim for damages.
At trial, Vergara testified about wrist pain and medical treatment post-dating his
December arrest, and so the officers cross-examined Vergara about the wrist injury he

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suffered during the October arrest. The officers first asked him whether the doctors
compared his December wrist X-ray to an October wrist X-ray, and then whether
Vergara had “an interaction” with police in October. At a sidebar, Vergara objected that
the court’s ruling on his motion in limine precluded this line of questioning. The court
overruled the objection, reiterating that, because Vergara had testified that the officers
injured his wrist, they were allowed to elicit testimony about a prior wrist injury. With
the court’s permission, the officers’ counsel asked how Vergara was injured during the
October arrest. Vergara confirmed that an Oak Park police officer took him to the
ground and that the ensuing injury he suffered to his wrist during the October police
encounter was to the same wrist he asserted was injured during the December arrest.
The day after he testified, Vergara asked the court to strike his cross-examination
testimony about the arrest, given the prejudicial nature of the disclosure of his prior
police encounter. The court denied the motion, explaining that the evidence was
relevant to suggest that his injury was caused by another incident and not the
defendants’ actions.
During a conference later in the trial, Vergara objected to the officers’ proposal to
introduce records related to the October incident to refresh the recollection of an Oak
Park officer scheduled to testify the following day. The court overruled Vergara’s
objection and said it would permit the officers to elicit limited testimony about the
possibility that Vergara’s injury had pre-existed the December arrest. The officers could,
for instance, ask about the manner in which Vergara was taken to the ground during
the October interaction and whether the officer made contact with his wrist. To address
Vergara’s concern that evidence of his arrest history would prejudice the jury, the court
offered to instruct the jury that it should consider testimony about the October
interaction only insofar as it related to his alleged injuries. Vergara, however, balked at
the proposal and withdrew any claim arising out his wrist injury; he agreed to stipulate
that he did not suffer a wrist injury in December 2016. The court accepted the
stipulation, and the Oak Park officer did not testify.
The jury found in favor of the officers in all respects. It found that Frey was not
liable for using excessive force, that Clarke was not liable for failing to intervene, and
that neither officer was liable for falsely arresting Vergara.
Vergara moved for a new trial and for relief from the judgment under Federal
Rules of Civil Procedure 59(a)(1)(A) and 60(b)(3), contending that the officers engaged
in misconduct that prevented him from fully presenting his claims at trial. He first

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argued that the officers were obligated to specify before trial which discovery materials
would be used as exhibits, but they had “hidden” and “buried” the post-incident Oak
Park police report and medical records among 1,300 pages of discovery documents.
Moreover, he argued, the officers did not identify those materials as exhibits until mid-
trial. According to Vergara, the late disclosure of exhibits deprived him of time to
investigate the contents of the documents.
Vergara also argued that it was misconduct and fundamentally unfair for the
officers to broadcast his prior arrest to the jury during his cross-examination. He
asserted that the questioning about his October arrest violated the pretrial ruling that
limited references to his criminal history, and that the cross-examination elicited
inadmissible character evidence and portrayed him as a bad person.
The court denied Vergara’s motion, finding no evidence of misconduct on the
officers’ part and concluding that the jury heard appropriate and relevant evidence.
With respect to the allegedly withheld documents, the court explained that the timing
and manner of disclosure was not misconduct: Vergara knew after the pretrial
conference that the officers intended to probe the extent and circumstances of the
October wrist injury, that the court would allow evidence of prior police interaction
depending on how he presented his claim for damages, and that medical records
documenting the injury would be admissible. Based on this knowledge, the court
added, Vergara could have investigated further or could have modified his claim for
damages before trial. As for the alleged misconduct during Vergara’s cross-
examination, the court explained that the officers’ questioning at trial did not violate
any pretrial rulings because the incident was probative with regard to the cause of
Vergara’s wrist injury. The court also emphasized that the officers minimized the risk of
prejudice by characterizing Vergara’s encounter with Oak Park police merely as an
“interaction,” as opposed to an arrest.
On appeal, Vergara challenges the denial of his motion for new trial because the
officers committed prejudicial discovery misconduct and the district court wrongly
agreed to allow the officers to ask about Vergara’s October wrist injury. We review the
denial of motions for a new trial and for relief from the judgment for abuse of
discretion. Venson v. Altamirano, 749 F.3d 641, 651, 656 (7th Cir. 2014). We also review
the district court’s evidentiary rulings for abuse of discretion. Fields v. City of Chicago,
981 F.3d 534, 543 (7th Cir. 2020).

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As to his first argument, Vergara contends that the untimely and cumbersome
manner in which the officers disclosed the Oak Park documents was deliberate
misconduct. He also challenges the court’s conclusion that he was not prejudiced by the
officers’ discovery conduct, arguing that he did not have the opportunity to investigate
the arrest or injury before trial because he was not charged with a crime (and
presumably did not know a police report existed) and the medical records provided
lacked necessary information about the incident.
The court did not abuse its discretion by denying Vergara’s motion. Granting a
new trial is an “extraordinary remedy” only for “exceptional circumstances,” where the
moving party demonstrates not just that misconduct occurred, but that the misconduct
prevented him from fully and fairly litigating his case. Venson, 749 F.3d at 651, 653.
Regardless of the timing of the disclosures, the court was right to conclude that Vergara
was fully capable of investigating and presenting his claims. At the pretrial conference,
the officers informed him that they intended to prove that Vergara suffered an earlier
wrist injury, and Vergara had access to the records then. Further, Vergara personally
knew before trial what had occurred with the police and what injuries he experienced.
In fact, Vergara testified at trial about the arrest, his injuries, and his medical treatment.
Vergara is not entitled to a new trial because, as the district court explained, he had all
the information necessary to conduct further discovery, to plan for trial based upon his
personal knowledge, and to present his case at trial. See Saathoff v. Davis, 826 F.3d 925,
931–32 (7th Cir. 2016).
Vergara argues, second, that the district court committed evidentiary errors in
allowing questioning about the October arrest. He reiterates that the court wrongly
allowed testimony about his prior arrest, see Fed. R. Evid. 608, and that the testimony
invited the jury to infer he was a “troublemaker” or a bad person, id. r. 404(b). He relies
on Nelson v. City of Chicago, in which we explained that prior arrests of a party–witness
are generally inadmissible because the probative value is often outweighed by the risk
of prejudice. 810 F.3d 1061, 1067 (7th Cir. 2016).
But evidentiary rulings will not warrant a new trial unless they have a
“substantial and injurious” influence on the jury verdict, Fields, 981 F.3d at 544, and
Vergara has not come close to showing that this was the case here. Vergara opened the
door to the testimony about his prior arrest and wrist injury when he testified that Frey
and Clarke injured his wrist. As the district court repeatedly explained, questions about
the October arrest and subsequent wrist injury were relevant to whether the officers
injured Vergara’s wrist in December. And the court carefully considered the risk of

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prejudice, first requiring that the officers’ questions at trial be narrowly tailored to the
injury at issue and later emphasizing that Vergara’s encounter with Oak Park police
was characterized merely as an “interaction,” and nothing more inflammatory. This
was not an abuse of discretion. As for Vergara’s reliance on Nelson, that case is
distinguishable because it concerned the inadmissibility of prior arrests as impeachment
evidence, an issue not present here. 810 F.3d at 1068.
AFFIRMED

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