United States District Court, N.D. California, San Francisco Division
FINAL PRETRIAL ORDER
BEELER UNITED STATES MAGISTRATE JUDGE
Court held a final pretrial conference on February 22, 2018.
The court adopts the following pretrial order pursuant to
Federal Rule of Civil Procedure 16(e).
Trial Date and Length of Trial
jury trial will begin on March 5, 2018, in Courtroom C, 15th
Floor, U.S. District Court, 450 Golden Gate Avenue, San
Francisco, California. The trial will last two weeks. The
trial will be held Monday through Friday from 8:30 a.m. to
approximately 1:30 or 2:00 p.m. (or slightly longer to finish
a witness) and will include two fifteen-minute breaks.
Counsel must arrive at 8:15 a.m. to address any issues (such
as objections) before the trial day begins. Once the jury
begins deliberations, it usually stays past 2:00 p.m.
side will have 15 hours to present the
direct examination of its witnesses and to cross-examine the
opposing party's witnesses, including all objections
raised during the trial day. In addition, each party may make
an opening statement of up to 45 minutes. (If that seems too
constrained, the parties must let the court know by close of
business on Wednesday.)
jury will fill out the questionnaires on Thursday, March 1,
2018, and the questionnaires will be available later that
morning to the parties, who must copy the questionnaires that
morning (three copies). There are nearby copy shops at Turk
and Larkin and on Van Ness. The undersigned's courtroom
deputy will work with the parties on the process. As
discussed at the February 22 conference, the court will give
the questionnaires to the lawyers in the order of call, and
it will include a list of jurors, again in the order of call.
The court's jury-selection procedures are in its April
13, 2012 Pretrial Order.
Procedures During Trial; Exhibit and Witness Lists
parties should refer to the court's April 13, 2012
Pretrial Order for the court's procedures regarding
the presentation of exhibits, depositions, and witness
testimony during trial. In particular, the court reminds the
parties of its procedures for using deposition
parties stipulated that witnesses will be excluded from the
courtroom until they have testified. The court presumes that the
parties do not intend for this to extend to experts, but the
parties may clarify if this is not so.
parties must confer and submit a revised joint exhibit list
that eliminates duplicate exhibits. As discussed at the
pretrial conference, the defendants' exhibits must
eliminate partisan phrasing. The descriptions must be
neutral: “photograph, ” not “crime scene
photograph.” The deadline is Wednesday, February 28,
defendants must submit a revised witness list that includes
their per-witness trial time estimates, which is required by
the court's pretrial order. The court recognizes that this is
likely a work in progress, but asks both parties to submit
updated witness lists and time estimates as is practicable
and in any event, before the trial starts.
discussed at the February 22 conference, if the parties
identify witnesses in common, the defendants will examine
such witnesses when the plaintiffs call them (as opposed to
Claims, Defenses, and Relief
court adopts the recitation in the parties' proposed
pretrial order regarding the claims, defenses, and relief
parties stipulate in their proposed pretrial order to the
1. On December 29, 2010, Defendant Timothy Ortiz and
Defendant Austin Wilson used lethal force against Vinh Van
2. Defendants Ortiz and Wilson were acting under color of
state law at the time lethal force was used.
3. Defendants Ortiz and Wilson were acting within the course
and scope of their employment with the City and County of San
Francisco at the time lethal force was used.
4. Witnesses will be excluded from the courtroom until they
parties must prepare the appropriate stipulation to read to
the jury and admit as evidence. The court prefers
stipulations signed by the parties, marked as an exhibit, and
added to the exhibit binder. A stipulation - like any
evidence - belongs to the parties and not to the court. An
example is as follows: “The plaintiffs__ and the
defendants___, through their attorneys, stipulate to the
following:__ .” The lawyers then sign the stipulation
at the bottom on behalf of the parties. An issue can be, who
reads it. There are different approaches. A
“sponsoring” party can read the stipulation at a
time that makes sense. Another approach is to put it in at
the beginning of the trial or at the end of the
plaintiffs' case. This can happen when the parties are
double checking that all exhibits are admitted. The court
also prefers - to the extent possible - to pre-admit exhibits
to streamline the trial. This approach does not preclude the
parties' laying (at least some) foundation or inquiring
about their stipulated facts in a context that renders them
relevant. It is merely a process to avoid objections, get in
evidence, and allow the attorneys to put in their cases
parties suggest that they will agree to other
stipulations. For the trial times to work, the parties
must try to stipulate to matters such as authenticity,
business records, and similar issues to avoid calling
custodians at trial. The parties may reserve other objections
regarding admissibility. If the parties agree to other
stipulations, again, they must prepare a stipulation to read
to the jury and admit as evidence.
Motions in Limine
addressing the specific motions in limine the parties have
filed, the court begins with a few observations and ground
rules governing the evidence at trial as a whole. As noted at
the February 22 conference, all evidentiary rulings remain
interlocutory until the end of trial, but the court provides
these preliminary observations to guide the parties.
is a percipient-witness case.
case, at its core, is a percipient-witness case. The issues
in this case are whether, on December 29, 2010, Officers
Ortiz and Wilson used excessive force against Vinh Van Bui
and/or whether they were negligent. The resolution of these
issues will depend on what the officers knew or perceived
about Mr. Bui and the situation, how they acted in response,
and whether their actions were reasonable or non-reasonable
and negligent or non-negligent. Testimony of percipient
witnesses as to the events of December 29, 2010 are relevant
to these issues.
not relevant are Mr. Bui's actions prior to December 29,
2010, if they were unknown to Officers Ortiz and Wilson. For
example, the fact that Mr. Bui previously may have been
involved in incidents where he was dangerous is not relevant
to what the officers knew or perceived about Mr. Bui on
December 29, 2010 (unless the officers were aware of those
incidents). Similarly, the fact that Mr. Bui may have been
mentally ill and what his family and friends knew about his
mental illness is not relevant to what the officers knew or
perceived about Mr. Bui on December 29, 2010. The parties may
introduce evidence regarding Mr. Bui's past acts or
mental illness before December 29, 2010, if at all, only for
limited purposes (e.g., for damages) and in conformance with
the rules of evidence (e.g., they may not introduce evidence
regarding Mr. Bui's past acts or mental illness to prove
that Mr. Bui acted in conformance with them on December 29,
2010, see Fed. R. Evid. 404). Again, the parties
must remember at all times that this case, at its core, is a
may testify as to hypotheticals but may not testify as to
ultimate issues of law.
court gave guidance on its general rules regarding expert
witnesses and how questions are best couched as hypotheticals
questions. This guidance applies equally to both parties. For
fact issues, an expert can say that he assumed that
such-and-such was the case and, on the facts so assumed,
reached a given opinion. Assumptions can be challenged on
cross-examination. Experts also can be posed hypothetical
questions that overtly assume facts. It can be fair for an
expert to conclude - based on specified factual assumptions
and posited rules - that a “reasonable officer”
could choose certain courses of conduct. It probably is too
much to say that “any” or “every”
reasonable officer would act the same.
may not testify as to ultimate issues of law. While expert
testimony is not objectionable just because it embraces an
ultimate issue, see Fed. R. Evid. 704(a), “an
expert witness cannot give an opinion as to her legal
conclusion, i.e., an opinion on an ultimate issue of
law.” United States v. Diaz, 876 F.3d 1194,
1197 (9th Cir. 2017) (emphasis in original) (citing
Hangarter v. Provident Life & Accident Ins. Co.,
373 F.3d 998, 1016 (9th Cir. 2004)). For example, an expert
may not testify that Officers Ortiz and Wilson acted
reasonably or unreasonably, or that Mr. Bui did or did not
pose an imminent threat of death or bodily harm.
expert testimony must “help the trier of fact to
understand the evidence or to determine a fact in
issue” to be admissible. Id. at 1196 (citing
Fed.R.Evid. 702(a)). The court will exclude expert testimony
that does not comply with these strictures.
from their discussion at the February 22 conference, the
parties do not seem to seriously disagree on these matters.
* * *
reasons stated on the record and below, on the parties'
specific motions in limine, the court rules as follows:
Motion in Limine 1: Expert Witness Mark Strassberg
motion is granted, largely for the reasons that the
plaintiffs advance. Dr. Strassberg's testimony is
Motion in Limine 2: Mr. Bui's “Other Bad
motion is granted, largely for the reasons that the
plaintiffs advance. As explained above, the defendants may
not question witnesses or introduce evidence about Mr.
Bui's “other bad acts” (to use the
plaintiffs' phrase) absent a showing that Officers Ortiz
and Wilson were aware of such acts at the time of the
defendants' reliance on Boyd v. City and County of
San Francisco, 576 F.3d 938 (9th Cir. 2009), a
“suicide by cop” case, is inapposite. In a
suicide-by-cop case, the intent of the decedent - namely,
whether he intended to provoke the police into shooting him -
is directly at issue. Intent is a permissible use of
“other bad act” evidence. See Fed. R.
Evid. 404(b)(2). Here, by contrast, Mr. Bui's intent is
not at issue. Cf. Willis v. City of Fresno, No.
1:09-cv-01766-BAM, 2013 WL 6145232, at *3-4 (E.D. Cal. Nov.
21, 2013) (citing Boyd and contrasting a
suicide-by-cop case to a standard police
shooting/self-defense case). Additionally, the probative
value of evidence of Mr. Bui's prior “bad
acts” is substantially outweighed by its prejudicial
effect. Cf. Id. at *4.
Motion in Limine 3: Mr. Bui's Mental Condition
plaintiffs argue that “evidence of Mr. Bui's mental
illness is relevant to plaintiffs' claim that defendants
used excessive force and should be admitted for that limited
purpose.” But as discussed above, the mere fact that
Mr. Bui might have been mentally ill, standing alone, is not
relevant (except perhaps as to damages). As the plaintiffs
themselves acknowledge, “[Mr. Bui's] mental state
is not at issue in this case.” At most, what is relevant is
whether “it should have been ...