Plaintiff Kent Bourland filed five motions in limine on December 24, 2012, seeking to exclude evidence that may be offered by defendants. (ECF 32, 33, 34, 35, and 36.) On December 31, 2012, defendants filed oppositions to these motions (ECF 39, 40, 41, 42 and 43) and plaintiff filed his replies on January 7, 2013 (ECF 45, 46, 47, 48).
The following motions have been decided based upon the record presently before the court. Each ruling is made without prejudice and is subject to proper renewal, in whole or in part, during trial. If a party wishes to contest a pretrial ruling, it must do so through a proper motion or objection, or otherwise forfeit appeal on such grounds. See FED. R. EVID. 103(a);
Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir.2001) ("Where a district court makes a tentative in limine ruling excluding evidence, the exclusion of that evidence may only be challenged on appeal if the aggrieved party attempts to offer such evidence at trial.") (alteration, citation and quotation omitted). In addition, unless otherwise stated below, challenges to expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) are denied without prejudice. Should a party wish to renew a Daubert challenge at trial, it should alert the court, at which point the court may grant limited voir dire the day before such expert may be called to testify.
I. Motion to Exclude Evidence of Plaintiff's Dupuytren's Contracture Condition Plaintiff wishes to exclude evidence concerning a medical condition he has called
Dupuytren's Contracture in his right wrist. (ECF 32.) Dupuytren's Contracture is "a condition where the fascia, which is the layer . . . just under the skin in the palms, thickens and shortens . . ." causing the hand to form a claw-like shape. (Dep. of Stephen P. Ferraro, Jr., M.D. at 5:8-15, ECF 32.) The condition is "commonly believed to be an inherited condition common to males of northern European ancestry." (Id. at 6:15-17.) Plaintiff testified that Dupuytren's Contracture did not impact his work but that he decided to undergo surgery in case it worsened. (Kent Bourland Dep. at 9:19-24, 11:4-8, ECF 32.) Dr. Stephen P. Ferraro performed the surgery in January 2007. (Ferraro Dep. at 12: 4-5.) Before surgery, plaintiff's ring finger was contracted approximately thirty degrees; other digits were affected less severely. (Id. at 5:21-25.)
The doctor who performed the surgery stated there is some evidence that trauma can worsen the condition. (Id. at 8:6-11.) However, Dupuytren's Contracture, according to Dr. Harvinder Birk, who treated plaintiff after defendants arrested him on November 20, 2008, does not increase the risk of suffering compression of the ulnar nerve, which is the wrist injury that plaintiff asserts defendants caused when he was handcuffed. (Dep. of Harvinder Birk, M.D. at 4:14-24, ECF 32.)
As there is no connection between Dupuytren's Contracture and compression of the ulnar nerve, plaintiff argues that evidence of his condition should be excluded as irrelevant under Federal Rule of Evidence 402. (ECF 32 at 2.) In response, defendants contend that evidence of Dupuytren's Contracture is relevant because any pre-existing condition in plaintiff's hand would impact the extent to which ulnar nerve compression affects the use of plaintiff's wrist. Additionally, defendants argue that plaintiff's experience getting surgery for Dupuytren's Contracture is relevant to whether plaintiff would suffer harm from undergoing a procedure for ulnar nerve compression, which is at issue in the case. (ECF 39 at 3.)
Relevant evidence is that "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, 402; Boyd v. City & Cnty. of San Francisco, 576 F.3d 938, 943 (9th Cir. 2009). Plaintiff's argument that evidence of his Dupuytren's Contracture is irrelevant is convincing and the court will exclude it. Based on the evidence that plaintiff provides, there is no indication that the condition ever led to an impairment of the use of his hand that would be compounded by his ulnar nerve compression, particularly because plaintiff received surgery correcting the contracture. Defendants have provided no evidence showing otherwise. Moreover, defendants have not explained the connection they allege between plaintiff's surgery with Dr. Ferraro and any harm associated with surgery that plaintiff would potentially receive for ulnar nerve compression.
The court GRANTS plaintiff's motion to exclude evidence of plaintiff's Dupuytren's Contracture.
II. Motion to Exclude Evidence of Prior Incidents
Between Plaintiff and His Wife Plaintiff requests that evidence of several events that occurred before his arrest be excluded. (ECF 34.) Specifically, plaintiff would like to exclude evidence that (1) on the night plaintiff was arrested and several other times in the past, Katie Bourland, plaintiff's wife, and their two daughters left their house because Katie wished to avoid argument and possible physical confrontation with plaintiff (Katie Bourland Dep. at 33:17-34:19, ECF 34); (2) on several occasions, plaintiff threw objects when he and his wife fought, and he once broke a window (id. at 43:14-45:1); (3) the night plaintiff was arrested, Katie told officers either that she wanted the "cycle to end" or used the term "cycle of violence" (id. at 62:4-24); (4) plaintiff made
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suicidal statements to Katie several times, including in April 2008, when Katie called police and told them she was concerned plaintiff might kill himself (id. at 82:1-84:16); (5) plaintiff shoved Katie when she was walking down steps sometime in or around December 2007 (id. at 84:17-86:5); (6) Katie often accused plaintiff of "financial infidelity" (id. at 20:2-6).
Plaintiff argues that none of this evidence is relevant because he has already conceded there was probable cause for his arrest. (ECF 34 at 3.) Additionally, he argues that it is inadmissible character evidence under Federal Rule of Evidence 404. (Id. at 4.) Defendants assert that the evidence is not offered as character evidence, but is relevant to explain why plaintiff's family called police and to explain why defendant police officers arrested plaintiff and chose to use the police dog. (ECF 41 at 3, 5-6.) The relevance of those incidents accordingly depends on whether defendant officers were aware of them before they arrested plaintiff. See Chew v. Gates, 27 F.3d 1432, 1442 n. 9 (9th Cir. 1994). In their opposition brief, defendants argue that the arresting officers knew about Katie's "cycle of violence" comment, referencing the excerpts of her deposition provided by plaintiff. (ECF 41 at 2.) But it is not clear from these portions of her testimony whether the officers knew about the comment before the arrest. "When ...