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M.H. v. County of Alameda

United States District Court, N.D. California

January 2, 2015

M.H., et al., Plaintiffs,
v.
COUNTY OF ALAMEDA, et al., Defendants.

ORDER ON MOTIONS IN LIMINE Re: ECF Nos. 305, 309

JON S. TIGAR, District Judge.

Before the Court are the Plaintiffs' and Defendants' Omnibus Motions in Limine. ECF Nos. 305, 309. The parties filed a total of 64 motions in limine, some of which have as many as ten sub-parts. These circumstances call to mind the recent statement of a brother court, that "[w]ith [64] separate motions to address, [1] the Court unfortunately cannot indulge in the luxury of a lengthy exegesis of the background of each dispute and the full scope of its reasoning. What are required are timely decisions, and little beyond that." Dynetix Design Solutions, Inc. v. Synopsys, Inc., No. C 11-5973 PSG, 2013 WL 4537838, at *1 (N.D. Cal. Aug. 22, 2013), appeal dismissed (Mar. 18, 2014). To that end, the Court provides its decisions below, with two exceptions: (1) The County Defendants' Motion in Limine 17, Corizon Defendants' Motion in Limine 1, and Defendant Sancho's Motion in Limine 11, which substantially overlap and for which the Court has already issued an order; and (2) those motions that will either be argued at the January 5 pre-trial conference, or are under submission without the need for argument, as indicated.

A. Plaintiffs' Motion in Limine Number One

This motion seeks an order

(1) that Corizon produce the complete annual financial statements of Valitas Health Services, Inc., from which the Corizon Health, Inc. statements were taken, which may be subject to the Protective Order until the punitive damages phase of trial begins; (2) that Corizon produce complete organizational charts showing the current relationships between Valitas Health Services, Inc., Corizon Health, Inc., Corizon, Inc., and Corizon, LLC; (3) that Corizon produce a list showing each of its 114 contracts referenced on its website, and state which Corizon entity is the contracting entity; 4) that Corizon produce for deposition pursuant to F.R.Civ.P. 30(b)(6), its Person Most Knowledgeable concerning the relationships between Valitas Health Services, Inc., Corizon Health, Inc., Corizon, Inc., and Corizon, LLC, as well as the Corizon entities' wealth, financial condition, assets, liabilities, income and expenses; and (5) that Plaintiffs be permitted to name an expert in business valuation should one be needed after reviewing the above discovery.

The motion is DENIED. Fact discovery closed in October 2013.

B. Plaintiffs' Motion in Limine Number Two

This motion seeks an order that the trial of this action, which is projected to last several weeks, take place at the Oakland federal courthouse.

The motion is DENIED. The trial will take place, as scheduled, at the San Francisco federal courthouse, where Judge Tigar maintains his chambers and courtroom.

C. Plaintiffs' Motion in Limine Number Three

The Court will hear argument on this motion at the pre-trial conference on January 5, 2015.

D. Plaintiffs' Motion in Limine Number Four

This motion is under submission. This motion will be decided without oral argument.

E. Plaintiffs' Motion in Limine Number Five

This motion seeks an order (1) precluding County expert witness Robert Fonzi from testifying about facts that he omitted from his expert report; (2) precluding Fonzi from testifying about his Opinion 3, that "jail personnel assigned to the Santa Rita Jail Facility took appropriate steps in processing, evaluating, and housing Martin Harrison during his incarceration"; (3) preclude Fonzi from testifying about his Opinion 2, that "there is a clear custom and practice of ensuring adequate supervision, training, and jail procedures involving several components dealing with jail operations, inmate booking, classification, and investigating use of force incidents"; and (4) preclude Fonzi from testifying that opinion on page 11 of Mr. Fonzi's report, where he states that "[the] circumstances [of decedent Harrison's intake and incarceration], if repeated, would predictably cause trained law enforcement personnel to respond and act in the same manner regardless of jurisdiction or agency."

With regard to the first issue, the contention is that Fonzi took a tour of the Alameda County jail, and reviewed some depositions and expert reports, after he submitted his expert report, but before he sat for his deposition. The County Defendants do not contest that these facts were not contained in Fonzi's expert report. Thus, the burden is on those defendants to prove that Fonzi's failure to include those facts was either substantially justified or harmless. Fed.R.Civ.P. 37(c)(1); Torres v. City of L.A. , 548 F.3d 1197, 1213 (9th Cir. 2008). The County Defendants offer no justification for Fonzi's failure, but assert that the late disclosure was harmless because Plaintiffs were able to ask Fonzi about the new facts at his deposition. Neither party cites a case directly on point.

The Court concludes that limiting Fonzi's testimony to the opinions and bases set forth in his opinion is an appropriate sanction. While the County Defendants contend that these new facts and opinions were disclosed in Fonzi's deposition, Plaintiffs were still deprived of the ability to prepare adequately for that deposition.[2] Federal Rule of Civil Procedure 26 requires an expert report to contain "a complete statement of all opinions the witness will express and the basis and reasons for them. " Fed.R.Civ.P. 26(a)(2)(B)(i) (emphasis added). "The [expert] report must be complete such that opposing counsel is not forced to depose an expert in order to avoid ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources." U.S. ex rel. O'Connell v. Chapman Univ. , 245 F.R.D. 652, 654 (C.D. Cal. 2007) (quoting Salgado v. Gen. Motors Corp. , 150 F.3d 735, 742 n.6 (7th Cir. 1998)).

The motion to preclude Fonzi's testimony with regard to his Opinions 2 and 3 is DENIED. The concerns the Plaintiffs identify are matters for cross-examination.

The motion to preclude Fonzi from testifying that "[the] circumstances [of decedent Harrison's intake and incarceration], if repeated, would predictably cause trained law enforcement personnel to respond and act in the same manner regardless of jurisdiction or agency" is GRANTED. There is no basis for this opinion, which is speculative.

F. Plaintiffs' Motion in Limine Number Six

This motion seeks an order precluding County Defendants' expert Dr. Vincent J.M. DiMaio from testifying about opinions or facts he omitted from his report. As examples, the Plaintiffs cite depositions that Dr. DiMaio did not read, and the opinion he expressed at deposition that decedent Harrison died from "excited delirium syndrome."

The County Defendants state that they sent a list to Plaintiffs' counsel prior to Dr. DiMaio's deposition of the additional material he reviewed after the preparation of his expert report. Under these circumstances, there is insufficient prejudice to the Plaintiffs to prevent Dr. DiMaio from testifying regarding these additional materials.

However, as to the expression of Dr. DiMaio's opinion that decedent Harrison died from "excited delirium syndrome, " the Court concludes that Dr. DiMaio's failure to include that opinion in his report was neither substantially justified nor harmless, and the only way to cure the prejudice to Plaintiffs is to preclude his testimony on that subject.

This motion is GRANTED IN PART and DENIED IN PART.

G. Plaintiffs' Motion in Limine Number Seven

This motion seeks an order precluding County Defendants' expert witness Dr. Charles Wetli from testifying about facts or opinions that were not contained in his expert report. Unlike the case with Dr. DiMaio, the County Defendants do not contend that they sent Plaintiffs' counsel a list of the additional materials that Dr. Wetli had reviewed prior to his deposition. As with Dr. DiMaio, Plaintiffs contend that Dr. Wetli expressed an opinion in his deposition about "excited delirium, " but did not provide that opinion in his expert report.

The motion is GRANTED in its entirety. Dr. Wetli is precluded from testifying about any facts he omitted from his expert report, and either agitated delirium, excited delirium, or excited-delirium syndrome.[3]

H. Plaintiffs' Motion in Limine Number Eight

This motion seeks an order precluding Corizon expert Dr. Robert Jones from testifying at trial (1) about materials, such as deposition transcripts, that he testified he either never read in preparing his report or read after he had submitted his report; (2) to an opinion on whether Martin Harrison had a serious medical need; and (3) to Opinions 1, 2, 3, and 5 in his report.[4]

The motion is DENIED.

I. Plaintiffs' Motion in Limine Number Nine

This motion seeks an order to "preclude Dr. Klatsky from testifying about both: (1) the opinions and facts he omitted from his Rule 26 report; and (2) his opinion that Martin Harrison would have died within ten years if the Defendants here had not caused his death."

With regard to the first part of Plaintiffs' motion, Plaintiffs do not identify the opinions or facts they seek to have excluded. That portion of the motion is therefore denied.

With regard to the second part of Plaintiffs' motion, their criticisms of Dr. Klatsky's testimony go its weight, not its admissibility. These matters can be explored on cross-examination.

The motion is DENIED.

J. Plaintiffs' Motion in Limine Number Ten

This motion seeks an order "excluding any and all evidence, references to evidence, testimony, comment, or argument from Defendants and their experts concerning alleged investigation of, or misconduct by, Plaintiffs' police practices expert, John Jack' Ryan, while he was employed by the Providence, Rhode Island Police Department."

This evidence has little to no relevance and would lead to undue prejudice and the unnecessary consumption of time. Defendants state that this evidence has a bearing on Ryan's credentials but do not explain why.

The motion is GRANTED.

K. Plaintiffs' Motion in Limine Number Eleven

This motion seeks an order "excluding any and all evidence, references to evidence, testimony, comment, or argument from Defendants and their experts concerning the demotion of and subsequent reinstatement litigation by Plaintiffs' medical expert, Dr. Michael Baden, M.D., while he was employed by the New York City Medical Examiner's Office."

This evidence has little to no relevance and would lead to undue prejudice and the unnecessary consumption of time. As with the similar motion regarding Jack Ryan, Defendants state that this evidence has a bearing on Dr. Baden's credentials but do not explain why.

The motion is GRANTED.

L. Plaintiffs' Motion in Limine Number Twelve

This motion seeks an order "excluding any and all evidence, references to evidence, testimony, comment, or argument concerning alleged domestic violence and other prior bad acts' by Decedent Martin C. Harrison against persons who are not parties to this lawsuit."

The motion is GRANTED.

M. Plaintiffs' Motion in Limine Number Thirteen

By this motion, Plaintiffs seek an order "preclud[ing] Defendants from offering evidence, argument, or comment about [Krystle] Harrison's having worked as a go-go dancer' over five years ago."

No party opposes the motion. The motion is GRANTED.

N. County Defendants' Motion in Limine Number One

The Court will hear argument on this motion.

O. County Defendants' Motion in Limine Number Two

This motion seeks an order precluding the use of certain words in describing deputies' actions in this case, including "beating, " "stomping, " "crushing, " "or any other inflammatory words."

The motion is DENIED.

P. County Defendants' Motion in Limine Number Three

This motion seeks to exclude autopsy photographs. Plaintiffs cite a number of cases admitting such photographs over prejudice objections similar to the ones made by defendants here.

The parties are hereby ORDERED to bring a complete set of such photographs to the January 5, 2015 pre-trial conference.

Q. County Defendants' Motion in Limine Number Four

This motion seeks an order to exclude evidence that Deputy Martinez' Taser certification had expired four months before the incident at issue in this case. Plaintiffs do not argue any causal connection between Martinez' lack of re-certification and either his conduct or Harrison's injuries during the incident. As such, the evidence is more prejudicial than probative.

Defendants' motion is GRANTED.

R. County Defendants' Motion in Limine Number Five

This motion seeks to exclude three categories of evidence regarding Sheriff's Deputy Unbun, specifically: (1) his performance at the police academy; (2) two inmate grievances for excessive force filed against him; and (3) an internal affairs complaint filed against him.

Plaintiffs agree that this evidence should be excluded.

The motion is GRANTED.

S. County Defendants' Motion in Limine Number Six

Deputy Ahlf took some pictures of the decedent Harrison after the incident that is the subject of this case. When Deputy Ahlf was asked about these photographs by Sergeant Dudek, Deputy Ahlf described one of the photographs as "great." By this motion, the County Defendants seek to preclude Sergeant Dudek from offering an opinion as to what Deputy Ahlf meant by his use of the word "great." The County Defendants do not seek to preclude Deputy Ahlf's direct testimony on this topic.

The motion is GRANTED.

T. County Defendants' Motion in Limine Number Seven

By this motion, Defendants seek to exclude "any detailed testimony regarding any expert's prior testimony - i.e., the details of the prior cases." The Defendants recognize that some questions regarding experience and background are both inevitable and desirable, but seek an order preventing Plaintiffs from "dwelling" on "the details of the experts' prior work and testimony in direct or cross." Defendants argue that questions on these topics are permissible, but not "detailed" ones. Defendants provide no examples of questions or evidence that they think are off limits. Thus, there is no way for the Court to grant the requested relief as framed.

In any event, the topic of this motion is better addressed on a question-by-question basis at trial. The motion is DENIED.

U. County Defendants' Motion in Limine Number Eight

Defendants' Motion in Limine Number Eight seeks "to exclude any detailed testimony regarding Plaintiffs' expert Dr. Baden's prior work in sensational' or high profile' cases and/or his work as a consultant for Fox News."

The motion is DENIED. If Plaintiffs' questioning of Dr. Baden at trial exceeds the proper bounds of direct examination, Defendants can object at that time.

V. County Defendants' Motion In Limine Number Nine

This motion is under submission. This motion will be decided without oral argument.

W. XXIII. County Defendants' Motion in Limine Number Ten

This motion seeks "to exclude any opinion testimony by Dr. Baden regarding the Defendants' use of a Taser as the ...


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