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Michael Tater-Alexander v. Lonnie R. Amerjan

April 15, 2011

MICHAEL TATER-ALEXANDER,
PLAINTIFF,
v.
LONNIE R. AMERJAN, CITY OF CLOVIS, TINA STIRLING, COMMUNITY REGIONAL MEDICAL CENTER, DR. THOMAS E. MANSFIELD, MARY JO GREENE, AND DOES 1 THROUGH 100. DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER RE DEFENDANT'S MOTION TO ADD WITNESSES AND EVIDENCE (DOCS. 252).

I. INTRODUCTION

Defendant Fresno Community Hospital and Medical Center dba Community Regional Medical Center ("Defendant") moves to add witnesses and evidence that were not listed in the Supplemental Joint Pre-Trial Statement (Doc. 211), but were included in the Final Pre-Trial Order (Doc. 271). Doc. 252. Plaintiff opposes the motion. Doc. 269. The matter was heard March 28, 2011.

II. FACTUAL BACKGROUND

Plaintiff proceeds with this action for damages and equitable relief under the Americans with Disabilities Act ("ADA"), Unruh Civil Rights Act ("Unruh Act"), Disabled Persons Act ("DPA"), First Amendment, 42 U.S.C. § 1983, and Bane Civil Rights Act.

Plaintiff filed a complaint on March 14, 2008, amendments to the complaint, and a third amended complaint ("TAC") on May 27, 2009 (Doc. 72). On January 28, 2011, summary judgment was granted on all claims asserted against Corporal Amerjan, Officer Sterling, and the City of Clovis. Doc. 205. On February 16, 2011, Plaintiff voluntarily dismissed Dr. Mansfield with prejudice.

Doc. 246.

A pretrial conference was held January 31, 2011. The court ordered the parties to submit a Supplemental Joint Pre-Trial Statement by February 4, 2011, and they did so. Doc. 211. On February 7, 2011, Defendant filed an Addition to the Exhibits to the Supplemental Joint Pretrial Statement. Doc. 213. A Final Pretrial Order was entered March 22, 2011. Doc. 271.

III. LEGAL STANDARD

A pretrial schedule may be modified "only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "A district judge is given broad discretion in supervising the pre-trial phase of litigation . . . ." Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980) (quoting FDIC v. Glickman, 450 F.2d 416, 419 (9th Cir. 1971). District courts should generally allow amendments of pre-trial orders when "no substantial injury will be occasioned to the opposing party, the refusal to allow the amendment might result in injustice to the movant, and the inconvenience to the court is slight." Campbell, 619 F.2d at 27-28 (quoting Angle v. Sky Chef, Inc., 535 F.2d 492, 495 (9th Cir. 1976)).

IV. ANALYSIS

A.Ramon Flores, R.N., Adam Perez, Brian Pond, Garrett Waterson Defendant moves to add four witnesses to the Final Pretrial Statement: (1) Nurse Flores; (2) Officer Adam Perez; (3) Officer Brian Pond; and (4) Officer Garrett Waterson. Nurse Flores and the Officers would testify regarding Plaintiff's visit to Defendant's Emergency Department on September 6, 2009, Nurse Flores' notes from the visit, and the Officers' incident report from the visit. Defendant contends that these witnesses' testimonies demonstrate Plaintiff's bias against the hospital.

Plaintiff rejoins that he filed another lawsuit arising from the September 6, 2009 incident, and Defendant's request to add Nurse Flores and Officers Perez, Pond and Waterson contravenes the court's grant of Plaintiff's motion in limine number 5 (to preclude evidence of other claims and/or lawsuits).

The 2003 Advisory Committee Notes to FRE 608 state that "the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity)" are governed by Rules 402 and 403. Evidence which is not relevant is not admissible. Fed. R. Evid. 402. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair ...


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