Lawman v. City and County of San Francisco

          FINAL PRETRIAL ORDER

          DONNA M. RYU, UNITED STATES MAGISTRATE JUDGE

         I. MOTIONS IN LIMINE

         Plaintiff’s motion in limine 1, exclude public intoxication report (Docket No. 132): Denied.

         Plaintiff’s motion in limine 2, evidence of Plaintiff’s alcohol use (Docket No. 133): Granted in part, denied in part. Evidence of Plaintiff’s prior alcohol use is not admissible to prove that Plaintiff was intoxicated on December 31, 2011. Such evidence is admissible solely for the purpose of the parties’ expert testimony regarding Plaintiff’s possible diagnoses, e.g., bipolar disorder vs. alcohol abuse disorder. The court will give a limiting instruction to the jury. Keram may discuss Sprauve’s notes regarding “rule out alcohol use disorder, ” but may not reference specific notes in the Sprauve records about alcohol use unless Plaintiff opens the door.

         Plaintiff’s motion in limine 3, expert opinion as to probable cause or reasonableness of Defendants’ conduct (Docket No. 134): Granted. Experts may opine regarding whether the Defendant Officers acted in a manner consistent with their training, but no expert may testify as to ultimate issues, such as whether probable cause supported Plaintiff’s arrest or whether the Defendant Officers acted reasonably.

         Plaintiff’s motion in limine 4, defense based on trespass (Docket No. 135): Granted in part, denied in part. Defendants may not offer a defense that the Defendant Officers had probable cause to arrest Plaintiff for violating California Penal Code section 602(o). Defendants may offer a defense that the Defendant Officers had probable cause to arrest Plaintiff for violating California Penal Code section 602.1(a) on an obstruction theory. There currently is no evidence to support an intimidation theory.

         Plaintiff’s motion in limine 5, exclude certain opinions of defense expert Emily Keram, M.D. (Docket No. 136): Granted in part, denied in part. Re opinion 1: Keram may offer her opinion about whether a psychiatrist can diagnose to a reasonable degree of medical probability the cause of Plaintiff’s behavior on December 31, 2011. Re opinions 1(a) and 1(b): Defendants may not offer expert testimony about whether Plaintiff was intoxicated on December 31, 2011. Keram also cannot testify about any disputed symptoms (for example, the smell of alcohol, slurred speech, or bloodshot eyes); such facts are contested, and are within the province of the jury. Keram may offer her opinion about whether the undisputed symptoms displayed by Plaintiff on December 31, 2011 (for example, belligerence, grandiosity, rudeness) were consistent with bipolar or other disorders. Keram may not testify about whether Plaintiff’s symptoms may have been caused by drug use. Keram may not quote the reference in the Sprauve records to Plaintiff’s statement about striking his wife. Keram may not offer opinion 2, which is whether Plaintiff should have been detained pursuant to Welfare and Institutions Code section 5150 (“5150 detention”). All experts, including Keram, are prohibited from opining on the credibility of any witness.

         Plaintiff’s motion in limine 6, OCC materials (Docket No. 137): Granted in part, denied in part. See discussion below re Defendants’ motion in limine 2.

         Plaintiff’s motion in limine 7, testimony that Plaintiff was using drugs on December 31, 2011 (Docket No. 138): Granted. As to witness Rodie, the prejudice of such testimony outweighs its probative value. As to Keram, her expert opinion is based on insufficient facts/data.

         Plaintiff’s motion in limine 8, evidence of Rodie’s arrests (Docket No. 139): Granted.

         Defendants’ motion in limine 1, exclude opinions of Plaintiff’s expert Bruce Victor, M.D. (Docket No. 148): Granted in part, denied in part. Victor may offer his opinions about Plaintiff’s diagnosis of bipolar disorder (opinion 1) and that Plaintiff was manifesting symptoms of his bipolar disorder at the time of his arrest (opinion 2). Plaintiff may not offer expert opinion about whether Plaintiff was intoxicated on December 31, 2011. Victor also may not testify about disputed displayed symptoms (for example, the smell of alcohol, slurred speech, or bloodshot eyes); such facts are contested, and are within the province of the jury. Victor may not opine on the credibility of any witness. Victor may not offer opinion 4 (i.e., law enforcement application of criteria for 5150 detention, and whether Plaintiff met such criteria).

         Defendants’ motion in limine 2, exclude opinions of Plaintiff’s expert David Dusenbury (Docket No. 149); Plaintiff’s motion in limine 6, OCC materials (Docket No. 137): Granted in part, denied in part. In response to the court’s order, Plaintiff identified the Dusenbury opinions he plans to offer at trial. [Docket No. 218.] Dusenbury may not offer opinions that were not identified in Docket No. 218. In addition, the court made the following rulings:

         Dusenbury may offer the following opinions to which Defendants did not object: #3, March 21 report (p. 3) (however, Dusenbury may not opine that Plaintiff was not on drugs; Dusenbury may opine that there is no evidence that Plaintiff was on drugs); #6, March 21 report (p. 3); #8, March 21 report (p. 3); #12, March 21 report (p. 4); #13, March 21 report (p. 4) (but only as to California Penal Code section 602.1(a)); and whether the standard of care for danger to oneself under 647(f) was the same as that related to Welfare & Institutions Code section 5150 (offered at deposition), except that Dusenbury may not opine about whether Plaintiff satisfied the criteria for a 5150 detention.

         Dusenbury may not offer the following opinions: Opinion #4, March 21 report (p. 3); opinion that “reasonable suspicion” is not the proper standard for determining whether an arrest was lawful or unlawful (May 2/May 31 opinions); opinion about whether the Four Seasons residence lobby was a public place for purposes of 647(f) (offered at ...