Molina v. City of Visalia

          AMENDED PRETRIAL ORDER (DOC. NO. 106)

         On June 20, 2014, plaintiffs Reynalda Molina and Jacqueline Mendez-Madueña with minors G.M. and N.A.C. through guardian ad litem Veronica Ayon filed the currently operative second amended complaint (“SAC”) against the City of Visalia, Officer Adam Collins, Officer Daniel Roberts, Officer Dirk Alfano, and DOES four through one hundred. (Doc. No. 40.) The action stems from a high speed chase and encounter with police during which shots were fired that resulted in deaths of Ruben Molina and Edwardo Madueño. The SAC alleges causes of action for: (1) unreasonable search and seizure and use of excessive force under 42 U.S.C. § 1983; (2) substantive due process under 42 U.S.C. § 1983; (3) wrongful death under California Government Code §§ 815.2(a), 820(a) and California Civil Code § 43; (4) negligence survival action; (5) negligence under California Government Code § 815.2(a); and (6) assault and battery under California Government Code § 815.2(a). (Id.)

         On June 20, 2016, the court conducted a final pretrial conference. Peter Bersin, Charles Charlton, and Kyle Tracy appeared telephonically as counsel for plaintiffs; and Leonard Herr appeared as counsel for defendants. (Doc. No. 101.) On June 27, 2016, this court issued a pretrial order. (Doc. No. 105.) In said order, the court, inter alia, granted the parties fourteen days to file objections and granted each party seven days thereafter to respond to the other party’s objections. (Id.) On July 11, 2016, defendants filed objections seeking (1) to add Amanda Hughes as a witness and (2) to correct a clerical mistake in the pretrial order in changing the due date for replies to any objections to motions in limine from August 8, 2016 to August 15, 2016. (Doc. No. 106.) Defendants state that Amanda Hughes was identified as a witness in defendants’ initial disclosures and her statement was provided to plaintiffs in early discovery, but that defendants inadvertently left her name off the list of witnesses in the pretrial statement. (Id. at 1-2.) Plaintiffs did not file any objections of their own to the pretrial order or a response to defendants’ objections. After a review of the record herein and good cause appearing, the court finds it appropriate to amend the pretrial order to add Amanda Hughes as a witness and to correct the due date for replies to any objections to motions in limine to August 15, 2016. The court therefore makes the following findings and orders:

         I. JURISDICTION/VENUE

         Jurisdiction is predicated on 28 U.S.C. §§ 1331, 1343, and 1367. Jurisdiction is not contested. Venue is proper pursuant to 28 U.S.C. § 1391(b). Venue is not contested.

         II. JURY

         Both parties have demanded a jury trial for all issues. The jury will consist of nine jurors.

         III. UNDISPUTED FACTS

         1. Reynaldo Molina is the mother of decedent Ruben Molina.

         2. Ruben Molina was 22 years old at the time of his death.

         3. Jacqueline Mendez-Madueña is the wife of decedent Edwardo Madueña.

         4. G.M., and J.M., are the minor children of decedent Edwardo Madueña.

         5. Edwardo Madueña was 19 years old at the time of his death.

         6. Daniel Roberts fired his weapon 13 times on October 26, 2012.

         7. Adam Collins fired his weapon 13 times on October 26, 2012.

         8. Dirk Alfano fired his weapon seven times on October 26, 2012 9. Edwardo Madueña was driving a white Hyundai Sonata at the time of the police pursuit on October 26, 2012.

         10. Adam Collins was the driver of Visalia Police Department unit # 069 during the police pursuit on October 26, 2012.

         11. Dirk Alfano was Adam Collins’ partner and was in the right front seat in vehicle 069.

         12. Daniel Roberts was the driver of Visalia Police Department unit # 079 during the police pursuit on October 26, 2012.

         13. Amanda Hughes was a civilian ride-along and was in the right front seat in Visalia Police Department unit # 079.

         14. Daniel Roberts did not discuss a plan of action with Adam Collins or Dirk Alfano during the pursuit or before approaching on foot the overturned Hyundai Sonata on October 26, 2012.

         15. Dirk Alfano did not discuss a plan of action with Daniel Roberts or Adam Collins during the pursuit or before approaching on foot the overturned Hyundai Sonata on October 26, 2012.

         16. Adam Collins did not discuss a plan of action with Daniel Roberts or Dirk Alfano during the pursuit or before approaching on foot the overturned Hyundai Sonata on October 26, 2012.

         17. It is not known which of the three officers fired his weapon before the other officers started to fire their weapons.

         18. Each time Adam Collins fired his weapon on October 26, 2012, it was a use of force likely to cause death or serious bodily injury.

         19. Each time Dirk Alfano fired his weapon on October 26, 2012, it was a use of force likely to cause death or serious bodily injury.

         20. Each time Daniel Roberts fired his weapon on October 26, 2012, it was a use of force likely to cause death or serious bodily injury.

         21. Edwardo Madueña did not have a high school diploma from an accredited institution.

         IV. DISPUTED FACTUAL ISSUES

         1. Whether Edwardo Madueña while fleeing on foot after exiting the crashed and overturned vehicle, made a quarter turn toward Adam Collins and had his hands at his waist.

         2. Whether the Hyundai Sonata failed to stop behind a limit line for a stop sign which alleged failure was the reason for pulling over the vehicle on October 26, 2012 by Visalia Police Department Officers Adam Collins and Dirk Alfano.

         3. Whether the real reason for pulling over the Hyundai Sonata was something other than as stated by Officers Adam Collins and Dirk Alfano.

         4. Whether there were more than 5 occupants in the Hyundai Sonata on October 26, 2012 at the time it crashed and overturned.

         5. Whether any occupant other than Edwardo Madueña, had anything to do with its failure to stop on October 26, 2012 after being directed to do so by Visalia Police Department Officers Adam Collins and Dirk Alfano.

         6. Whether Robert Ruiz heard any shots which he believed were coming from inside the Hyundai Sonata on October 26, 2012 after it crashed and overturned.

         7. Whether any person in the Hyundai Sonata at the time it rolled over was the owner or possessor of a Colt .45 series 70 handgun containing a magazine with five (5) live rounds.

         8. Whether any person in the Hyundai Sonata at the time it rolled over was the owner or possessor of a CZ 97 9mm Rugar pistol containing a magazine with thirteen (13) live rounds.

         9. Whether any person in the Hyundai Sonata at the time it rolled over was the owner or possessor of a magazine containing seventeen (17) live rounds of .308 rifle ammunition.

         10. What Officer Collins said, if anything, to any of the passengers of the Hyundai before he started firing his weapon.

         11. What Officer Alfano said, if anything, to any of the passengers of the Hyundai before he started firing his weapon.

         12. What Officer Roberts said, if anything, to any of the passengers of the Hyundai before he started firing his weapon.

         13. Whether Officers Collins, Alfano, or Roberts had any reason to believe the passengers of the Hyundai presented a threat to the lives or safety of the officers or others at the time Officers Collins, Alfano and Roberts began firing their weapons.

         14. The location of Adam Collins after exiting his patrol vehicle, each time he fired his weapon at any of the passengers who he shot.

         15. The location of Dirk Alfano after exiting his patrol vehicle, each time he fired his weapon at any of the passengers who he shot.

         16. The location of Daniel Roberts after exiting his patrol vehicle, each time he fired his weapon at any of the passengers who he shot.

         17. Whether Officer Collins, Officer Alfano or Officer Roberts heard gunfire coming from or near the Hyundai prior to the time they began firing their weapons.

         18. N.A.C. is the minor child of decedent Edwardo Madueña.

         19. Defendant Daniel Roberts shot and killed Ruben Molina on October 26, 2012.

         20. Defendant Adam Collins shot and killed Edwardo Madueña on October 26, 2012.

         21. Edwardo Madueña was shot once in the back of his head.

         22. Defendant Dirk Alfano shot and wounded Nicholas Chavez on October 26, 2012.

         23. Nicholas Chavez was shot in the leg and in the abdomen.

         24. Ruben Molina was not armed at the time Daniel Roberts shot at him.

         25. Edwardo Madueña was not armed at the time Adam Collins shot at him.

         26. Nicholas Chavez was not armed at the time Dirk Alfano shot at him.

         27. Ruben Molina was the right front passenger in Edwardo Madueña’s vehicle which was involved in the police pursuit on October 26, 2012.

         28. Nicholas Chavez was the left rear passenger in Edwardo Madueña’s vehicle which was involved in the police pursuit on October 26, 2012.

         29. Shanele Alvarado was the middle rear passenger in Edwardo Madueña’s vehicle which was involved in the police pursuit on October 26, 2012.

         30. Robert Ruiz was the right rear passenger in Edwardo Madueña’s vehicle which was involved in the police pursuit on October 26, 2012.

         31. The only occupants in Edwardo Madueña’s vehicle were Edwardo Madueña, Rubin Molina, Nicholas Chavez, Shanele Alvarado and Robert Ruiz on October 26, 2012 at the time it crashed, rolled over and ended up upside down.

         32. Before the attempted stop of Edwardo Madueña’s vehicle by Visalia Police Department Officers Adam Collins and Dirk Alfano on October 26, 2012, everyone in the vehicle had been to Jack in the Box for food.

         33. At the time Adam Collins and Dirk Alfano attempted to pull over Edwardo Madueña’s vehicle, Edwardo Madueña was driving the four passengers to their homes or to a location near where they lived.

         34. The reason given by Adam Collins and Dirk Alfano for attempting to pull over Edwardo Madueña’s vehicle was an alleged violation of the Vehicle Code section 22450, failing to stop behind a marked limit line at a stop sign.

         35. On October 26, 2012, at the time Adam Collins and Dirk Alfano attempted to pull over Edwardo Madueña’s vehicle, they had no knowledge of the identity of the driver or the passengers in Edwardo Madueña’s vehicle.

         36. October 26, 2012 at the time Adam Collins and Dirk Alfano attempted to pull over Edwardo Madueña’s vehicle they had no knowledge of whether the driver or the passengers in Edwardo Madueña’s vehicle had any criminal record.

         37. Adam Collins, Dirk Alfano and Daniel Roberts engaged in a high risk pursuit of Edwardo Madueña’s vehicle on the evening of October 26, 2012.

         38. During the high risk pursuit Adam Collins and Dirk Alfano reached speeds of up to 100 mph.

         39. During the high risk pursuit Daniel Roberts reached speeds of up to 100 mph.

         40. At the time Adam Collins, Dirk Alfano and Daniel Roberts engaged in the high risk pursuit, they had no knowledge of the identity of the driver or the passengers in Edwardo Madueña’s vehicle.

         41. At the time Adam Collins, Dirk Alfano and Daniel Roberts engaged in the high risk pursuit, they had no knowledge of whether the driver or the passengers in Edwardo Madueña’s vehicle had any criminal record.

         42. At the time Adam Collins, Dirk Alfano and Daniel Roberts engaged in the high risk pursuit, they had no knowledge whether the driver or the passengers in Edwardo Madueña’s vehicle were armed with a weapon.

         43. Adam Collins did not call off or terminate the high risk pursuit on October 26, 2012.

         44. Dirk Alfano did not call off or terminate the high risk pursuit on October 26, 2012.

         45. Daniel Roberts did not call off or terminate the high risk pursuit on October 26, 2012.

         46. The watch commander, Brian Winter, did not call off or terminate the high risk pursuit on October 26, 2012.

         47. At the time Adam Collins, Dirk Alfano and Daniel Roberts fired their weapons on October 26, 2012, they had no knowledge of the identity of the driver or the passengers in Edwardo Madueña’s vehicle.

         48. At the time Adam Collins, Dirk Alfano and Daniel Roberts fired their weapons on October 26, 2012, they had no knowledge of whether the driver or the passengers in Edwardo Madueña’s vehicle had any criminal record.

         49. At the time Adam Collins fired his weapon on October 26, 2012, he had no knowledge whether Edwardo Madueña was armed.

         50. At the time Dirk Alfano fired his weapon on October 26, 2012, he had no knowledge whether Edwardo Madueña was armed.

         51. At the time Daniel Roberts fired his weapon on October 26, 2012, he had no knowledge whether Edwardo Madueña was armed.

         52. At the time Adam Collins fired his weapon on October 26, 2012, he had no knowledge whether Ruben Molina was armed.

         53. At the time Dirk Alfano fired his weapon on October 26, 2012, he had no knowledge whether Ruben Molina was armed.

         54. At the time Daniel Roberts fired his weapon on October 26, 2012, he had no knowledge whether Ruben Molina was armed.

         55. At the time Adam Collins fired his weapon on October 26, 2012, he had no knowledge whether Nicolas Chavez was armed.

         56. At the time Dirk Alfano fired his weapon on October 26, 2012, he had no knowledge whether Nicholas Chavez was armed.

         57. At the time Daniel Roberts fired his weapon on October 26, 2012, he had no knowledge whether Nicholas Chavez was armed.

         58. At the time Adam Collins fired his weapon on October 26, 2012, he had no knowledge weather Shanele Alvarado was armed.

         59. At the time Dirk Alfaro fired his weapon on October 26, 2012, he had no knowledge whether Shanele Alvarado was armed.

         60. At the time Daniel Roberts fired his weapon on October 26, 2012, he had no knowledge whether Shanele Alvarado was armed.

         61. At the time Adam Collins fired his weapon on October 26, 2012, he had no knowledge whether Robert Ruiz was armed.

         62. At the time Dirk Alfano fired his weapon on October 26, 2012, he had no knowledge whether Robert Ruiz was armed.

         63. At the time Daniel Roberts fired his weapon on October 26, 2012, he had no knowledge whether Robert Ruiz was armed.

         64. Ruben Molina was not in possession of a weapon at the time Adam Collins, Daniel Roberts & Dirk Alfano fired their weapons on October 26, 2012.

         65. Edwardo Madueña was not in possession of a weapon at the time Adam Collins, Daniel Roberts & Dirk Alfano fired their weapons on October 26, 2012.

         66. Nicholas Chavez was not in possession of a weapon at the time Adam Collins, Daniel Roberts & Dirk Alfano fired their weapons on October 26, 2012.

         67. Shanele Alvarado was not in possession of a weapon at the time Adam Collins, Daniel Roberts & Dirk Alfano fired their weapons on October 26, 2012.

         68. Robert Ruiz was not in possession of a weapon at the time Adam Collins, Daniel Roberts & Dirk Alfano fired their weapons on October 26, 2012.

         69. Ruben Molina did not fire any weapon at the police before he was shot on October 26, 2012.

         70. Edwardo Madueña did not fire any weapon at the police before he was shot on October 26, 2012.

         71. Nicholas Chavez did not fire any weapon at the police before he was shot on October 26, 2012.

         72. Shanele Alvarado did not fire any weapon at the police on October 26, 2012.

         73. Robert Ruiz did not fire any weapon at the police on October 26, 2012.

         74. Ruben Molina was shot in the head, left shoulder, left upper arm, left upper back, left upper lip and left cheek.

         75. The Tulare County Sheriff Department Officers were charged with the responsibility of searching the scene where the shooting took place on October 26, 2012 for shell casings.

         76. The Tulare County Sheriffs searched for shell casings at the scene where the shooting took place by visually looking for shell casings and using a metal detector.

         77. There were no shell casings found inside Edwardo Madueña’s vehicle by the Tulare County Sheriffs involved in the search.

         78. The only shell casings found at the scene where the shooting took place on October 26, 2012 were from the 40 caliber Sig Sauer semi-automatic handguns shot by Adam Collins, Daniel Roberts and Dirk Alfano.

         79. The Los Angeles County Coroner’s Office Forensic Science Laboratories Division tested gunshot residue samples taken by Tulare County Sheriff’s Department Officer Swanson from Ruben Molina’s hands for gunshot residue and the analysis revealed no gunshot residue particles were found on samples taken of his right and left hands.

         80. The Los Angeles County Coroner’s Office Forensic Science Laboratories Division tested gunshot residue samples taken by Tulare County Sheriff’s Department Officer Swanson from Edwardo Madueña’s hands for gunshot residue and the analysis revealed no gunshot residue particles were found on samples taken of his right and left hands.

         81. The Tulare County Sheriff’s office collected gunshot residue kits from Nicholas Chavez, Robert Ruiz & Shanele Alvarado, but the kits were never tested.

         82. Adam Collins did not use his vehicle’s spotlight to either illuminate the interior of Edwardo Madueña’s vehicle or to prevent the occupants from observing the officer’s approach on foot on October 26, 2012.

         83. Dirk Alfano did not use his vehicle’s spotlight to either illuminate the interior of Edwardo Madueña’s vehicle or to prevent the occupants from observing the officer’s approach on foot October 26, 2012.

         84. Daniel Roberts did not use his vehicle’s spotlight to either illuminate the interior of Edwardo Madueña’s vehicle or to prevent the occupants from observing the officer’s approach on foot October 26, 2012.

         85. Adam Collins did not use available cover before the first shot was fired at the scene of the overturned Hyundai Sonata on October 26, 2012.

         86. Daniel Roberts did not use available cover before the first shot was fired at the scene of the overturned Hyundai Sonata on October 26, 2012.

         87. Adam Collins did not maintain a position of advantage before the first shot was fired at the scene of the overturned Hyundai Sonata on October 26, 2012.

         88. Daniel Roberts did not maintain a position of advantage before the first shot was fired at the scene of the overturned Hyundai Sonata on October 26, 2012.

         89. On October 26, 2012, Adam Collins did not wait for back up Visalia Police Officers to arrive at the scene before approaching without cover, the overturned Hyundai Sonata on foot.

         90. On October 26, 2012, Daniel Roberts did not wait for back up Visalia Police Officers to arrive at the scene before approaching without cover, the overturned Hyundai Sonata on foot.

         91. On October 26, 2012, Dirk Alfano did not wait for back up Visalia Police Officers to arrive at the scene before firing his weapon at Nicholas Chavez.

         92. Adam Collins did not issue any commands to the driver or the passengers of Edwardo Madueña’s vehicle before firing his weapon on October 26, 2012.

         93. Dirk Alfano did not issue any commands to the driver or the passengers of Edwardo Madueña’s vehicle before firing his weapon on October 26, 2012.

         94. The only verbal warning Daniel Roberts issued was “hands” or I’ll release my dog” before firing his weapon on October 26, 2012.

         95. Adam Collins did not direct the driver or the occupants not to move until instructed to on October 26, 2012.

         96. Daniel Roberts did not direct the driver or the occupants not to move until instructed to on October 26, 2012.

         97. Dirk Alfano did not direct the driver or the occupants not to move until instructed to on October 26, 2012.

         98. Adam Collins did not direct the driver or the occupants to keep their hands in sight on October 26, 2012.

         99. Dirk Alfano did not direct the driver or the occupants to keep their hands in sight on October 26, 2012.

         100. Adam Collins did not order the driver or the occupants to exit the vehicle one at a time on October 26, 2012.

         101. Daniel Roberts did not order the driver or the occupants to exit the vehicle one at a time on October 26, 2012.

         102. Dirk Alfano did not order the driver or the occupants to exit the vehicle one at a time on October 26, 2012.

         103. Adam Collins did not order the driver or the occupants to exit the vehicle slowly on October 26, 2012.

         104. Daniel Roberts did not order the driver or the occupants to exit the vehicle slowly on October 26, 2012.

         105. Dirk Alfano did not order the driver or the occupants to exit the vehicle slowly on October 26, 2012.

         106. Before any weapons were fired, Adam Collins exposed himself to needless danger by approaching the overturned Hyundai Sonata by foot.

         107. Before any weapons were fired, Daniel Roberts exposed himself to needless danger by approaching the overturned Hyundai Sonata by foot.

         108. When Adam Collins fired his weapon in the direction of Edwardo Madueña’s vehicle after it had rolled over, that presented an imminent threat of death or serious bodily injury to the driver and passengers of the Hyundai Sonata.

         109. When Dirk Alfano fired his weapon in the direction of Edwardo Madueña’s vehicle after it had rolled over, that presented an imminent threat of death or serious bodily injury to the driver and passengers of the Hyundai Sonata.

         110. When Daniel Roberts fired his weapon in the direction of Edwardo Madueña’s vehicle after it had rolled over, that presented an imminent threat of death or serious bodily injury to the driver and passengers of the Hyundai Sonata.

         111. After the Hyundai Sonata crashed and overturned, the passengers were not able to see through the front window of the car before exiting.

         112. After Robert Ruiz crawled out of the overturned Hyundai Sonata, he never did anything of a threatening nature so as to cause Adam Collins to believe it was necessary to use deadly force against Edwardo Madueña.

         113. After Robert Ruiz crawled out of the overturned Hyundai Sonata, he never did anything of a threatening nature so as to cause Daniel Roberts to believe it was necessary to use deadly force against Edwardo Madueña.

         114. After Robert Ruiz crawled out of the overturned Hyundai Sonata, he never did anything of a threatening nature so as to cause Dirk Alfano to believe it was necessary to use deadly force against Edwardo Madueña.

         115. After Nicholas Chavez crawled out of the overturned Hyundai Sonata, he did nothing of a threatening nature so as to cause Adam Collins to believe it was necessary to use deadly force against Edwardo Madueña.

         116. After Nicholas Chavez crawled out of the overturned Hyundai Sonata, he did nothing of a threatening nature so as to cause Daniel Roberts to believe it was necessary to use deadly force against Ruben Molina.

         117. Gunshot residue analysis revealed many characteristic particles of gunshot residue in the interior passenger-side, rear door of the Hyundai driven by Edwardo Madueña.

         118. Gunshot residue analysis revealed many characteristic particles of gunshot residue in the interior passenger-side, rear door of the Hyundai driven by Edwardo Madueña.

         119. A Colt .45 series 70 handgun was found underneath Ruben Molina’s body.

         120. A CZ 97 9 mm Rugar pistol was containing a magazine with thirteen (13) live rounds was found several feet away from the Hyundai Sonata near Edwardo Madueña’s body.

         121. A magazine containing (17) live rounds of .308 rifle ammunition was found inside the Hyundai Sonata.

         122. Edwardo Madueña was an active Norteno gang member on October 26, 2012.

         123. Ruben Molina was an active Norteno gang member on October 26, 2012.

         124. Robert Ruiz was an active Norteno gang member on October 26, 2012.

         125. Ruben Molina was a convicted felon on October 26, 2012.

         126. Robert Ruiz was a convicted felon on October 26, 2012.

         127. Robert Ruiz had been convicted illegally selling firearms prior to October 26, 2012.

         128. Expert testimony from Greg Stutchman establishes the sound of 2 gunshots before any Defendant police officer fired his weapon.

         129. All of the shots fired by the police officers were from 40 caliber Sig Sauer Model P226 - semi automatic handguns.

         130. Peace Officers Standards and Training referred to as “POST” is the standard for law enforcement training in the State of California.

         131. The Visalia Police Department requires its officers to successfully complete POST training.

         V. DISPUTED EVIDENTIARY ISSUES

         A. Plaintiffs’ Disputed Evidentiary Issues

         1. Plaintiffs anticipate objecting to any attempt by the defense to introduce any evidence of gang affiliation of Ruben Molina, Edwardo Madueña, Nicholas Chavez, Robert Ruiz or Shanele Alvarado. Objections will be based Rules 401 and 403 of the Federal Rules of Evidence.

         2. Plaintiffs anticipate objecting to the introduction of any evidence that Ruben Molina, Edwardo Madueña, or Nicholas Chavez had body tattoos on or before the October 26, 2012 incident date. Objections will be based Rules 401 and 403 of the Federal Rules of Evidence.

         3. Plaintiffs anticipate objecting to any evidence that Ruben Molina, Edwardo Madueña, Nicholas Chavez or Robert Ruiz had a criminal record prior to the incident date of October 26, 2012. Objections will be based Rules 401, 403 and 404(b)(1) of the Federal Rules of Evidence.

         4. Plaintiffs anticipate objecting to any evidence that magazines with bullets were found inside the Hyundai Sonata after the shooting incident was over. Objections will be based Rules 401, 403 and 404(b)(1) of the Federal Rules of Evidence.

         5. Plaintiffs anticipate objecting to the introduction of any evidence that two handguns were found at the scene after the shooting stopped based upon the lack of evidence that these guns were fired on the date of the incident. Objections will be based on Rules 401 and 403 of the Federal Rules of Evidence.

         6. Plaintiffs anticipate objecting to any attempt by the defense to introduce any written findings of the District Attorney’s office for the City of Visalia with respect to the propriety of the VPD officers Adam Collins, Dirk Alfano or Daniel Roberts shooting in this case. Objections will be based on Rules 401 and 403 of the Federal Rules of Evidence.

         7. Plaintiffs anticipate objecting to any attempt by the defense to introduce any other findings by the Visalia Police Department or the Tulare County Sheriff’s Department, with respect to the propriety of the shootings by VPD Officers Adam Collins, Daniel Roberts or Dirk Alfano. Objections will be based on Rules 401 and 403 of the Federal Rules of Evidence.

         8. Plaintiffs anticipate objecting to any evidence that Edwardo Madueña and Ruben Molina had traces of marijuana in their system referenced in their autopsy reports. Objections will be based on Rules 401 and 403 of the Federal Rules of Evidence.

         Expert Opinions of Joe Callanan:

         9. Plaintiffs believe that the majority of opinions set forth in his FRCP Rule 26 Report are not admissible.

         The following Summary of Expert Opinions numbered in Mr. Callanan’s report beginning at page 31 will be objected to either in whole, or in part: 20.01, 20.02, 30.03, 20.05, 20.07, 20.08, 20.11, 20.12, 20.13, 20.14, 20.15, 20.16, 20.17, 20.18, 20.19, 20.20, 20.21, 20.22, 20.24, 20.25, 20.26, 20.27, 20.28, 20.29 and 20.30. Objections to these opinions will be based on the following grounds to wit:

A. Opinions are rendered on an ultimate issue. Federal Rules of Evidence 704.

B. Opinions are conclusions of fact which the jury should decide and are not based on specialized knowledge that will assist the jury in understanding the case. Federal Rules of Evidence 702.

C. Opinions contain statements of law which the jury will be instructed on. Federal Rules of Evidence 403.

         Plaintiffs intend to address their objections to the previously referenced opinions in motions in limine.

         Expert Opinion of Gregg Stutchman:

         10. Mr. Stutchman’s Rule 26 Report states that he intends to render an expert opinion that two (2) sounds he hears on the dash cam audio tape from officer Daniel Roberts patrol care are gunshots. Further, he intends to testify that these two gunshots are not from guns fired by either Adam Collins, Daniel Roberts or Dirk Alfano. The implication is that these two gunshots had to come from some passengers in the overturned Hyundai Sonata.

         Plaintiffs intend to bring a motion in limine to preclude his testimony based on a Daubert challenge. According to plaintiffs there appears to be no scientific evidence to support the conclusions Mr. Stutchman’s reaches that the first two sounds are gunshots. Moreover, according to plaintiffs, there is no scientific evidence supporting Stutchman’s opinion rendered as a “critical listening” expert, trained to listen for gunshot sounds. A motion in limine will be brought by plaintiffs seeking to preclude from admission into evidence of Stutchman’s opinion that the first two sounds heard are gunshots, and secondly, that the alleged gunshots could not have been fired by any police officers involved in the shooting in this case. The objections will also be based on Rule 702(a) through (d) of Federal Rules of Evidence.

         Expert Opinion of Kris Mohandie, Ph.D.:

         11. Mr. Mohandie is a licensed psychologist who specialized in police officer involved shooting cases. In his Rule 26 Report he states he will render the following opinion:

It is expected, normal, and reasonable that the responding officers, under the totality of circumstances and the highly stressful nature of this particular event, perceived danger and an immediate threat from the suspects. Indeed the totality of the circumstances the officers were subjected to, were more than sufficient to induce a profound psychophysiological fear response. The normal and expected reaction would be for the officers to respond as they did, with behaviors designed to reduce the perceived threat.

Plaintiffs object to this opinion on the grounds that it is an opinion on an ultimate issue and should be precluded on the basis of Rules 704 and 702 of the Federal Rules of Evidence. Plaintiffs intend to address this objection through a motion in limine.

         Expert Opinion of George Williams:

         12. Mr. Williams is an expert in police shooting cases. His Rule 26 Report renders opinions that are duplicative of opinions rendered by defense expert, Joe Callanan. Plaintiffs will object to any and all such duplicative expert opinions.

         At page 6 of Mr. Williams’ report, paragraphs 3 through page 7, line 24, he sets forth the opinions he intends to offer at trial.

         Plaintiffs intend to object to portions of each opinion set forth in the aforementioned section of Mr. Williams’ report pursuant to Federal Rules of Evidence, Rules 702(a) and 704.

         B. Defendants’ disputed factual issues

         1. Defendants will object to the introduction of evidence regarding the car chase that preceded the deaths of Messrs. Molina and Madueña. Plaintiffs expressly deny that their suit is based on the chase, but insist that the chase is relevant because it leads to liability. This will be the subject of objection by defense motion in limine under Federal Rules of Evidence, Rules 401, 403, & 405.

         Evidence re: Nicholas Chavez

         2. Defendants will object to the introduction of evidence that Nicholas Chavez was shot, that he sued the City, or that his case settled as immaterial. Defendants will object by motion in limine under Federal Rules of Evidence 401, 403, and 405.

         Expert Opinions Not Timely Served:

         3. One of plaintiffs’ experts, Tamorah Hunt, served a Rule 26 report two months after it was due. Defendants will object by motion in limine to expert opinions from expert reports not timely served under Federal Rules of Civil Procedure 26 & 37.

         Expert Opinion of Roger Clark:

         4. Defendants will object to Roger Clark testifying to matters not stated in his expert opinion. Defendants will object by motion in limine under Federal Rules of Evidence 401, 403, 701-703; Federal Rules of Civil Procedure 26 & 37.

         Cumulative, inflammatory photographic evidence

         5. Defendants will object by motion in limine to plaintiffs’ proposed presentation to jurors of ...