United States District Court, N.D. California
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
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