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                                                                          [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                   No. 18-11220
                             ________________________

                     D.C. Docket No. 2:15-cv-00701-GAP-CM

PATRICIA I. ERMINI,
a.k.a. Patricia I. Mapes,

                                                                 Plaintiff–Appellee,

                                       versus

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
                          ________________________

                                (September 10, 2019)

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

NEWSOM, Circuit Judge:
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      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


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Office. Because we find no errors that merit a new trial, we affirm the judgment in

Ermini’s favor.

                                         I

                                         A

      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


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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


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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.

                                          B

      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,


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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




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district court denied both motions. Scott appeals the district court’s judgment and

its order denying his motion for new trial. 1

                                              II

       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.


1
 Although Scott’s notice of appeal also referenced his renewed motion for judgment as a matter
of law, he didn’t address that motion in his briefing, so we won’t consider it here.

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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

                                               A

       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”


2
  “We review jury instructions de novo to determine whether they misstate the law or mislead the
jury to the prejudice of the objecting party.” Palmer v. Bd. of Regents of the Univ. Sys. of Ga.,
208 F.3d 969, 973 (11th Cir. 2000) (citations omitted). So long as the jury “instructions
accurately reflect the law,” however, a district court has “wide discretion as to the style and
wording employed.” McCormick v. Aderholt, 293 F.3d 1254, 1260 (11th Cir. 2002).

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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

award?” Id. The judge answered, correctly, that they would indeed have an effect:

“[T]he comparison factor, if you find both parties negligent, has a significant

impact upon the award that the Court enters.” Id.

      In concluding that federal law governed the question whether the judge had

acted properly, the Seventh Circuit began with the proposition that “[r]ules of

general applicability and purely managerial character governing the jury, such as

the form in which a civil jury is instructed, are quintessentially procedural.” Id.


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From that premise, the court concluded that a district judge’s decision to inform

the jury about the legal effect of its findings is an issue of procedure: “We think it

follows that whether the federal court should try to keep the jury in the dark about

the legal effect of the jury’s answers to the questions posed to it by the special

verdict is also a question of federal law.” Id. The court wrote that its classification

of the issue as procedural could result either from “an interpretation of [Federal]

Rule [of Civil Procedure] 49(a),” which governs special verdicts, or from the

application of “a federal common law of special verdicts to supplement the rule.”

Id. (The same, we think, could be said with respect to Rule 51, which governs jury

instructions. See Fed. R. Civ. P. 51.)

      We agree with the Seventh Circuit’s conclusion that federal law controls.

The decision whether to inform the jury about the legal effect of its findings—or,

whether instead, in the Seventh Circuit’s words, to “keep the jury in the dark”—

has nothing to do with the substance of the applicable legal rule or the merits of the

issues before the court. Instead, it has everything to do with the fair and efficient

management of the trial. To be sure, a party may take issue with the fairness or

efficiency of the district court’s decision; but it must do so by reference to federal

law, not state.




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                                          B

      So then, does federal law preclude a district court judge from informing

jurors about the legal effects of their factual findings? We hold that it doesn’t.

      It’s true, of course, that “[a] judge has no general duty to inform the jury of

the legal consequences of its verdict.” Beul, 233 F.3d at 450 (citations omitted).

And it may even be the case that “in some circumstances the giving of such

information might interfere with the jury’s appraisal of the facts.” Id. But there is

most assuredly “no rule against giving the information.” Id. And indeed, we agree

with the Seventh Circuit that it is “difficult to conceive” of a scenario in which

merely informing jurors of the legal consequences of their findings—i.e., telling

them the whole truth—would constitute reversible error. Id. Rule 49 expressly

allows judges to use general verdict forms with special interrogatories, which

“reveal to the jury the legal consequences of its specific findings,” and “there is no

purpose in forbidding [judges] to do the same thing with a special verdict.” Id.

And we can think of no reason why a different rule should apply to jury

instructions. We hold, therefore, that a district court may inform the jury about the

legal effect of its finding so long as it does so accurately. And here no one

contends—nor could they—that the court’s instructions were inaccurate.

      Scott leans heavily on Harrison v. Gregory, and understandably so, as the

court there granted a new trial, in part because the jury was told that if it concluded


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the defendant had proved Florida’s alcohol defense, the plaintiff couldn’t recover.

221 So. 3d 1273, 1277–78 (Fla. Dist. Ct. App. 2017). Harrison, though, is doubly

distinguishable. First, it arose under state law, and as we’ve just explained, federal

law governs whether and under what circumstances a federal district court judge

may inform the jury about the legal effect of its findings. Second, Harrison is

different in an important respect. The problem there wasn’t so much that the jury

found out about the legal effect of its finding regarding Florida’s alcohol defense,

but rather that the plaintiff’s lawyer had, in closing, attempted to “inflame the

minds and passions of the jurors” by harping on the unfairness of the statutory

defense: “By the way,” he said, “50 percent or more at fault, there’s no recovery.”

Id. at 1277. 3 The situation here, where the district court impassively—and

accurately—instructed the jury concerning the legal effect of its alcohol-defense

finding, strikes us as entirely different. Walther v. Omaha Public Power District,

412 F.2d 1164 (8th Cir. 1969), on which Scott also relies, is also off-point. There,

the Eighth Circuit merely concluded that the legal effect of a jury’s finding needn’t

necessarily be included in a jury instruction, not that it can’t be included. See id. at

1169–70.


3
  In this connection, it is worth noting that Scott’s own lawyer made a similar comment during
his closing argument here: “[B]y the way, if [Ermini’s] own intoxication impairment factored
into this incident, precipitated the incident, caused the incident, then this claim is barred.” He
went on to tell the jurors that if they found in Scott’s favor with regard to the alcohol defense,
“that ends this case.”

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       To summarize: Federal law controls this issue, and federal law doesn’t

preclude district court judges from accurately informing jurors of the effects of

their findings—in either their instructions or their verdict forms. Accordingly, it

wasn’t improper for the judge here to provide an accurate statement of law

explaining the legal effect of the jury’s finding under Florida’s alcohol defense.

                                                III

       Scott next asserts that he is entitled to a new trial on the ground that Ermini

effectively used her negligent-wellness-check claim as a Trojan Horse to reassert

her claims about the deputies’ use of force, which the district court had dismissed

pretrial. Although his position is difficult to discern, Scott seems to be making

either (or both) of two different arguments. First, he contends that Ermini’s

introduction of evidence about the deputies’ use of force converted her otherwise

cognizable (even if he would say losing) negligent-wellness-check claim into an

invalid “negligent-use-of-force” claim that Florida law doesn’t recognize. Second,

and separately, because the district court rejected Ermini’s claims surrounding the

officers’ use of force at summary judgment, Scott asserts that her claim is

precluded. We disagree on both counts.4



4
 Our “review of a district court’s denial of a motion for new trial is very limited.” Blu-J, Inc. v.
Kemper C.P.A. Grp., 916 F.2d 637, 643 (11th Cir. 1990). “Absent an abuse of discretion, the
district court’s disposition of a motion for a new trial will not be disturbed on appeal, especially
when that disposition was to deny the motion.” Id.

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                                          A

      We’ll start with Scott’s contention that Ermini used the guise of a negligent-

wellness-check claim to try a non-cognizable negligent-use-of-force claim. And

we’ll begin at the beginning, with Ermini’s complaint. Ermini’s complaint

expressly alleged that Scott’s deputies negligently performed a wellness check—

not that they engaged in a negligent use of force. (To be sure, Ermini asserted that

the deputies used force excessively, in violation of federal constitutional standards,

but not that they used force negligently, in violation of state law.) In particular,

Ermini alleged that “S[cott], acting through his deputies, owed a special duty of

care to [her] because of the manner in which his deputies responded to a 911 call

for a wellness check,” and that the deputies later “fail[ed] to exercise reasonable

care in conducting the wellness check.” And the district court certainly seemed to

appreciate the distinction: While the court granted summary judgment in the

deputies’ favor on Ermini’s excessive-force claims, it denied them summary

judgment on the negligent-wellness-check claim, finding that “triable issues of fact

exist[ed] as to whether the deputies exercised reasonable care in carrying out the

welfare check, which increased the risk of harm to [Ermini], and whether

[Ermini’s] actions were a reasonably foreseeable consequence of the negligent acts

or omissions of the deputies.”




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      Even so, Scott insists that as matters unfolded at trial, Ermini’s negligent-

wellness-check claim devolved into a non-cognizable—and thus forbidden—

negligent-use-of-force claim. We don’t think so. Ermini didn’t invent and litigate

a new cause of action; rather, there is simply an inevitable overlap between the

facts underlying her negligent-wellness-check claim and those surrounding the

deputies’ use of force. And although Florida doesn’t recognize claims for

negligent use of force, it does recognize the commonsense proposition that

“distinct act[s] of negligence” can occur in conjunction with alleged excessive-

force incidents. City of Miami v. Sanders, 672 So. 2d 46, 48 (Fla. Dist. Ct. App.

1996). Just so here—the wellness check involved distinct acts of alleged

negligence during which an allegedly excessive use of force occurred.

      To bolster his claim, Scott asserts that “[m]uch of [Ermini’s] counsel’s

questions and argument” focused on the officers’ use of force, but he musters only

two examples from the trial record: (1) Ermini’s lawyer suggesting that she never

pointed her gun at the deputies; and (2) her lawyer referencing the deputies’ failure

to issue a warning prior to opening fire. Two instances do not “much” of Ermini’s

argument make. Moreover, the facts surrounding the use of force are inextricably

intertwined with those surrounding the wellness check—it’s all one seamless story.

Accordingly, it seems to us essentially inevitable that Ermini’s lawyer properly

would elicit testimony pertaining to the use of force in the course of trying the


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negligent-wellness-check claim. Indeed, excluding all information about the

officers’ force would have made it nearly impossible for the jury to do its job.

Could jurors have even possibly determined Ermini’s damages, for instance, if they

had been precluded from hearing any information about the specific conduct that

caused her injury?

      In any event, the fact that Ermini’s lawyer mentioned a few details about the

force used by the deputies doesn’t negate or invalidate the trial’s overarching focus

on their negligence in performing the wellness check, nor does it convert Ermini’s

negligent-wellness-check claim into a nonexistent negligent-use-of-force claim.

The complaint, the jury instructions, and the verdict form all properly focused on

the vicarious-liability claim against Scott and his statutory defenses. And when

Ermini’s lawyer examined her witnesses—particularly the officers—she

questioned them extensively about their conduct in connection with the wellness

check even before any shots were fired. She asked the deputies, for instance, about

their dark uniforms, whether the lights outside Ermini’s home were on, whether the

house’s interior was dark and if (and how) they used their flashlights, whether their

patrol cars were visible from the road, whether they checked the perimeter of the

home before entering, whether they used Ermini’s name when speaking to her, and

what, if any, wellness-check-related training or experience they had received prior

to the incident. None of those questions had anything to do with the officers’ use


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of force. The fact that Ermini’s lawyer also occasionally touched on force-related

topics doesn’t convert the cause of action. The circumstances surrounding the

wellness check and the use of force are bound up in the same unfortunate

incident—it’s difficult, if not impossible, to tell the former story without

occasionally verging into the latter.

                                           B

      Scott separately contends—albeit obliquely—that Ermini’s introduction of

evidence pertaining to the deputies’ use of force should have been barred by some

form of preclusion doctrine. Again, we disagree.

      To the extent that any such doctrine is in play here, we think it is “direct

estoppel,” which is a variety of issue preclusion. DuChateau v. Camp, Dresser &

McKee, Inc., 713 F.3d 1298, 1301 (11th Cir. 2013). “Direct estoppel, as opposed

to collateral estoppel, governs the preclusive effect of a litigated issue in a separate

proceeding within a single suit.” Cotton v. Heyman, 63 F.3d 1115, 1118 n.1 (D.C.

Cir. 1995); see also DuChateau, 713 F.3d at 1301–03. To the extent Scott means

to argue that Ermini was barred from “relitigating” at trial force-related facts that

had already been adjudicated against her at summary judgment—in particular,

whether Ermini pointed her gun at the deputies and whether they warned her

before shooting—his argument fails. A partial summary judgment on some of a

plaintiff’s claims cannot directly estop other claims that proceed to trial.


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       We have held that a jury verdict on one claim can directly estop another

claim in the same suit. DuChateau, 713 F.3d at 1301–02 (holding that a jury

verdict on a claim of employment retaliation directly estopped the plaintiff’s

appeal of the district court’s rejection of her claim of pregnancy discrimination

because both claims required proof of adverse employment action). But partial

summary judgment is materially different from a jury verdict. Unlike a jury

verdict, a partial summary judgment is not a “final decision” under 28 U.S.C.

§ 1291. State Treasurer of Michigan v. Barry, 168 F.3d 8, 11 (11th Cir. 1999).5

Accordingly, the district court’s interlocutory order rejecting some of Ermini’s

claims at summary judgment does not preclude her negligent-wellness-check

claim. 6




5
  The only way for Ermini to obtain appellate review of the district court’s partial summary
judgment against her would have been to seek discretionary interlocutory review, 28 U.S.C.
§ 1292(b), or extraordinary relief such as a writ of mandamus. And a failure to seek permissive
interlocutory review does not transform an otherwise nonfinal order into a final decision entitled
to preclusive effect. 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 4418, at 524 (3d ed. 2016) (“[F]ailure to seize opportunities for
avowedly interlocutory review should not transform a potentially reviewable order into issue
preclusion.”).
6
 Moreover, and in any event, both of the issues on which Scott seems to predicate his estoppel-
based argument—whether Ermini pointed her gun at the deputies and whether they warned her
before shooting—were assumed in Ermini’s favor at summary judgment, not against her; the
district court accepted for the sake of argument that Ermini didn’t point her gun at the deputies
and that they didn’t warn her before opening fire, but granted summary judgment on her
excessive-force claim anyway.

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                                              IV

       Next, the “golden-rule.” Scott objects to the following statement that

Ermini’s lawyer made at closing: “The fact of the matter is that . . . actually, the

evidence supports Ms. Ermini’s version, which is a logical thing. Can you imagine

if someone was in your house that you wouldn’t try to figure out who is that[?]”

(emphasis added). Scott asserts that this statement violates the prohibition on

“golden-rule” arguments. We disagree. 7

                                               A

       A “golden-rule” argument invites jurors to “put themselves in the shoes of

the plaintiff and do unto him as they would have him do unto them under similar

circumstances.” Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir. 1978).

The risk is that such a statement asks jurors to “decide the case on the basis of

sympathy rather than from an objective review of the evidence.” Dempsey v. Mac

Towing, Inc., 876 F.2d 1538, 1540 n.1 (11th Cir. 1989). An unremedied golden-

rule argument will ordinarily result in reversal. Id.

       A golden-rule objection typically arises when a lawyer asks jurors to place

themselves in the plaintiff’s position with respect to the calculation of damages.

See, e.g., Ivy, 585 F.2d at 741 & n.10. For example, asking the jury, “If you were


7
 We review a district court’s ruling regarding allegedly improper statements by counsel for an
abuse of discretion. Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988) (citation
omitted).

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in the plaintiff’s shoes, how much do you think you would deserve?” would be a

clear-cut violation. “The rationale for prohibiting such an argument is that the

jury’s sympathy will be unfairly aroused, resulting in a disproportionate award of

damages.” Burrage v. Harrell, 537 F.2d 837, 839 (5th Cir. 1976); see also Har-

Pen Truck Lines, Inc. v. Mills, 378 F.2d 705, 714–15 (5th Cir. 1967). The question

here is whether Ermini’s lawyer’s statement—which pertained not to the

appropriate measure of damages but rather to Scott’s liability for the deputies’

actions—violated the prohibition on golden-rule arguments as explicated in our

case law. We conclude that it didn’t.

                                                  B

       Although many courts treat golden-rule arguments as universally improper, 8

we have historically permitted certain golden-rule-ish statements in the liability

context. Most notably for present purposes, in McNely v. Ocala Star-Banner

Corp., we held that defense counsel didn’t violate the prohibition on golden-rule

arguments when he “invit[ed] the jury to put itself in the defendants’ position when



8
  See, e.g., Caudle v. District of Columbia, 707 F.3d 354, 360 (D.C. Cir. 2013) (holding that “[i]t
is no more appropriate for a jury to decide a defendant’s liability . . . based on an improper
consideration than to use the same consideration to determine damages”); Mich. First Credit
Union v. Cumis Ins Soc’y, Inc., 641 F.3d 240, 249 (6th Cir. 2011); Ins. Co. of N. Am., Inc. v. U.S.
Gypsum Co., 870 F.2d 148, 154 (4th Cir. 1989); Edwards v. City of Philadelphia, 860 F.2d 568,
574–75 (3d Cir. 1988); Joan W. v. City of Chicago, 771 F.2d 1020, 1022 (7th Cir. 1985) (stating
that “[t]here is no reason for . . . a distinction [between different types of golden rule statements]
because the jury’s departure from its neutral role is equally inappropriate regardless of the issue
at stake”).

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considering [plaintiff’s] alleged work place misconduct and evaluating whether he

was terminated because of his disability.” 99 F.3d 1068, 1071 n.3 (11th Cir.

1996). That statement, we held, “was not in any way directed to the question of

damages; rather it related only to the reasonableness of appellee’s actions”—an

issue that was squarely, and properly, before the jury. Id. (emphasis added) (citing

Burrage, 537 F.2d at 839).

      Somewhat farther afield—but in the same vein—we have permitted liability-

related golden-rule statements in criminal cases. In Reese v. Secretary, Florida

Department of Corrections, for instance, we held that a prosecutor’s comment that

a victim experienced “every woman’s wors[t] nightmare,” as well as statements

urging the jury to think about “what was going on in [the victim’s] mind,” weren’t

improper golden-rule arguments because the government had to show that the

crime was “designed to inflict a high degree of pain with utter indifference to . . .

the suffering of others” in order to prove an aggravating factor. 675 F.3d 1277,

1292 (11th Cir. 2012) (first alteration in original) (quoting citation omitted). So

too, in Davis v. Kemp, we deemed the following statement permissible in a death-

penalty case, because the jury could properly consider the defendant’s “future

dangerousness”: “Ask yourselves this question, how would you feel living in this

community if you looked out of your window one night and saw [the defendant]

walking down the street coming up toward your house. If that wouldn’t put a


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feeling of cold terror in your heart, what would?” 829 F.2d 1522, 1528–29 (11th

Cir. 1987).9

       The common tie that binds the liability-related golden-rule-ish statements

that we have deemed permissible? Their connection to an element or factor

genuinely at issue in the case, or their focus on either a party’s behavior or

perception of an incident. Here, Ermini’s lawyer’s argument went directly to the

reasonableness of Ermini’s response to the deputies’ actions during the wellness

check, which bears directly on the foreseeability of her actions—both issues that

jurors would necessarily have had to grapple with in deciding Ermini’s negligent-

wellness-check claim. The statement seems to us essentially indistinguishable

from the reasonableness-related statement that we allowed in McNely.

       Admittedly, Ermini’s lawyer could have chosen her words more carefully—

there’s plenty of case law warning attorneys to steer clear of potentially

inflammatory closing arguments, see, e.g., United States v. Kopituk, 690 F.2d

1289, 1342–43 (11th Cir. 1982)—but, her lone statement in closing didn’t run

afoul of the prohibition on golden-rule statements as we have understood and

applied it.



9
  See also, e.g., Kennedy v. Dugger, 933 F.2d 905, 913 (11th Cir. 1991) (permitting the following
comment about a first-degree-murder victim’s experience: “Can you imagine, in your own
living room not bothering a soul on a Saturday afternoon? . . . [The defendant] walked . . . down
to your own house, and, a total stranger, because you got in his way, destroys you[?]”).

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      What’s more, even if the statement had crossed the line, “[f]or reversible

error to be found in a closing argument, the challenged argument must be ‘plainly

unwarranted and clearly injurious.’” Goldsmith v. Bagby Elevator Co., 513 F.3d

1261, 1282 (11th Cir. 2008) (quoting Peterson v. Willie, 81 F.3d 1033, 1036 (11th

Cir. 1996)). There is no evidence to suggest that Ermini’s lawyer’s statement was

“plainly unwarranted”—again, it seems at the very least to fall within the zone of

statements that we have allowed—let alone “clearly injurious” to Scott’s case. Id.

Moreover, when evaluating the prejudice resulting from an attorney’s comments,

we examine comments in the context of the entire trial and any curative

instruction, United States v. Hernandez, 145 F.3d 1433, 1438–39 (11th Cir. 1998),

and here the district court judge explicitly instructed the jurors that they “must not

be influenced in any way by either sympathy or prejudice for or against either

party,” and that they “must follow the law . . . even if [they] do not agree with it.”

                                           V

      Finally, Scott challenges the admission of Lisenbee’s and Hamer’s

testimony about their post-event terminations from the Sheriff’s Office—which all

agree had nothing to do with the incident involving Ermini but which, Scott says,

tended to paint the deputies in a bad light. The district court allowed limited

questioning about the timing of and general reasons for Lisenbee’s and Hamer’s

firings, but it excluded any related documents containing further details. In


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particular, when examining Lisenbee, Ermini’s lawyer briefly asked whether he

had been dismissed from the Sheriff’s Office; questioning revealed only that

Lisenbee had been a probationary officer at the time of the Ermini incident and that

he hadn’t “me[t his] probationary requirements.” Ermini’s lawyer also confirmed

that Hamer had been fired for “[c]onduct unbecoming” after he “violate[d] a policy

and fail[ed] to disclose it.” That was the extent of the evidence—no additional

details were elicited, no explanatory records or documentation were introduced,

and the remainder of the deputies’ examinations focused on the incident at issue.10

       Because the issue at trial was whether Scott was vicariously liable for the

deputies’ own failure to use reasonable care in conducting the wellness check,

Scott contends that allowing Ermini’s lawyer to question Lisenbee and Hamer

about their terminations—even to a limited extent—violated Federal Rules of

Evidence 404(b) and 403. We discuss the application of those rules in turn.11




10
   As a result of the judge’s exclusion of any additional evidence surrounding the deputies’
terminations, jurors didn’t learn (1) that Lisenbee’s failure to meet probationary requirements
was partially related to his “inability to control scenes or suspects through verbal commands”
and that he “had started remedial training two weeks before this incident”; or (2) that Hamer was
dismissed after “an unrelated incident where inappropriate materials were found on his work
computer.”
11
  We review a district court’s evidentiary rulings for abuse of discretion. United States v.
Brown, 665 F.3d 1239, 1247 (11th Cir. 2011).

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                                          A

      In relevant part, Federal Rule of Evidence 404(b) states that “[e]vidence of a

crime, wrong, or other act is not admissible to prove a person’s character in order

to show that on a particular occasion the person acted in accordance with the

character.” Fed. R. Evid. 404(b)(1). The rule’s language is broad—it applies to

any “person[,]” not just to plaintiffs, defendants, or parties. Even so, we have held

in both the civil and criminal contexts that Rule 404(b) does not—at least of its

own force—apply when, as here, the challenged other-bad-acts evidence implicates

a witness or another non-party to the litigation. See United States v. Morano, 697

F.2d 923, 926 (11th Cir. 1983) (concluding, in a criminal case, that “Rule 404(b)

does not control” in instances where the evidence in question does not relate to acts

of the defendant, but rather to “an extraneous offense committed by someone other

than the defendant”); Glados, Inc. v. Reliance Ins. Co., 888 F.2d 1309, 1311–12

(11th Cir. 1987) (citing and applying Morano in the context of a civil case).

      As we did in United States v. Sellers, we once again “question Morano’s

reasoning,” which seems to us to flatly contradict Rule 404(b)’s clear text:

      The plain language of Rule 404(b) refers to “persons,” not
      “defendants,” and Rule 404(a) carves out specific exceptions relating
      to the “accused,” “victim[s],” and “witness[es].” Where, as
      in Morano and this case, the non-defendant’s “extraneous” act, if
      proved, directly supports the guilt of the defendant as to the crime
      charged, that “extraneous” act should not, it seems, be subject to proof
      through the improper character-evidence route condemned by Rule


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      404. Indeed, it is difficult to see how the non-defendant’s act could be
      described as “extraneous” in such circumstances.

906 F.2d 597, 604 n.11 (1990). We recognize, though, as we did in Sellers, that

we are “bound by [Morano] as precedent”—especially as extended to the civil-

litigation context in Glados. Id. And finally we note—more happily, and again as

we did in Sellers—that Rule 404(b)’s non-applicability probably doesn’t make

much of a difference, because “Morano held that the factors articulated in Rule

404 ‘should be considered in weighing the balance between the relevancy of this

evidence and its prejudice under Rule 403.’” Sellers, 906 F.2d at 604 n.11

(quoting Morano, 697 F.2d at 926). “The functional analysis is thus largely the

same”—it just takes place under the auspices of Rule 403 rather than Rule 404(b).

Id.

      So we conclude—in accord with existing precedent, but dubitante—that

Rule 404(b) doesn’t apply here, and we turn to consider whether the admission of

evidence pertaining to Lisenbee’s and Hamer’s terminations violated Rule 403 and,

if so, whether the error in admitting it was harmless.

                                          B

      Rule 403 states that a court “may exclude relevant evidence if its probative

value is substantially outweighed by a danger of . . . unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403. This Court affords district court judges
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“the broadest discretion in determining whether evidence should be excluded under

Rule 403.” United States v. Costa, 947 F.2d 919, 924 (11th Cir. 1991) (quoting

citation omitted).

      Taking Rule 404(b) considerations into account—as Morano and Sellers

require—we think the challenged testimony here could easily be understood to

convey precisely the kind of propensity-based inference that the Rules of Evidence

aim to prevent—namely, that Lisenbee and Hamer were bad cops (why else the

firings?) with a penchant to act badly, just as Ermini alleges they did the night of

the wellness check. Moreover, the circumstances in this case are unique in that

while Scott is the defendant, he is only vicariously so—practically speaking, the

deputies’ actions are on trial. Accordingly, it seems to us that “the policies

underlying Rule 404(b)”—which again, we are instructed to fold into our Rule 403

analysis— are squarely applicable. Morano, 697 F.2d at 926. All things

considered, we think it clear that the prejudicial value of this evidence could be

thought to substantially outweigh its probative value.

      That, though, isn’t the end of the inquiry. Even if a district court abuses its

discretion by admitting prejudicial character evidence, evidentiary error “must

[still] rise above the threshold of harmless error” to warrant reversal. Perry v.

State Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir. 1984) (quoting

Wallace v. Ener, 521 F.2d 215, 222 (5th Cir. 1975)). The burden of proving that


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an error was not harmless rests with the party asserting it, who must establish that

the error “affect[ed his] . . . substantial rights.” Id. “If . . . the error did not

influence the jury, or had but very slight effect, the verdict and the judgment

should stand . . . .” Kotteakos v. United States, 328 U.S. 750, 764 (1946).

       Although we think the district court may well have abused its discretion in

admitting Lisenbee’s and Hamer’s testimony, we conclude that any error was

harmless, for several reasons. First, Ermini’s lawyer’s questioning of the witnesses

was brief and was largely limited to generalities about their dismissals; the district

court properly excluded explanatory records and documents, which would have

introduced additional details. Second, Ermini’s lawyer asked all of her witnesses

about their employment history and current job status, save for those who appeared

in uniform and whose status was therefore obvious—so there wasn’t any undue

focus on Lisenbee and Hamer. Third, Lisenbee and Hamer clarified on cross-

examination that they were not terminated—or even disciplined or criticized—as a

result of anything they did (or didn’t do) in connection with the Ermini incident,

and, further, that the Sheriff’s Office never even concluded that they “violated

policy” during the wellness check.

       Because we conclude that Scott hasn’t shown that the deputies’ testimony

about their terminations affected his substantial rights, we find no reversible error.




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                                               VI

         For the foregoing reasons, we hold (1) that it wasn’t improper for the district

court to inform the jury about the legal effect of its finding under Florida’s alcohol

defense; (2) that Ermini didn’t present a nonexistent negligent-use-of-force claim

and that her negligent-wellness-check claim wasn’t precluded; (3) that Ermini’s

lawyer didn’t make a forbidden golden-rule argument; and (4) that any error that

the district court committed in admitting testimony about Lisenbee’s and Hamer’s

dismissals was harmless.12 Accordingly, we affirm the jury’s verdict and the

district court’s judgment, as well as that court’s denial of Scott’s motion for new

trial.

AFFIRMED.




12
  Scott also contends that all of these errors, taken together, resulted in cumulative error
sufficient to merit a new trial. Because we find no errors, Scott’s cumulative-error argument
necessarily fails.



                                               29
