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Bui v. City and County of San Francisco

United States District Court, N.D. California, San Francisco Division

February 27, 2018

CHIEN VAN BUI, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

          FINAL PRETRIAL ORDER

          LAUREL BEELER UNITED STATES MAGISTRATE JUDGE

         The 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).

         1. Trial Date and Length of Trial

         A. The 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.

         B. Each 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.)

         C. The 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.[1]

         2. Procedures During Trial; Exhibit and Witness Lists

         The parties should refer to the court's April 13, 2012 Pretrial Order[2] 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 excerpts.[3]

         The parties stipulated that witnesses will be excluded from the courtroom until they have testified.[4] 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.

         The 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, 2018.

         The defendants must submit a revised witness list that includes their per-witness trial time estimates, which is required by the court's pretrial order.[5] 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.

         As 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 recalling them).

         3. Claims, Defenses, and Relief

         The court adopts the recitation in the parties' proposed pretrial order regarding the claims, defenses, and relief sought.[6]

         4. Stipulations

         The parties stipulate in their proposed pretrial order to the following:

1. On December 29, 2010, Defendant Timothy Ortiz and Defendant Austin Wilson used lethal force against Vinh Van Bui.
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 have testified.

         The 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 smoothly.

         The parties suggest that they will agree to other stipulations.[7] 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.

         5. Motions in Limine

         Before 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.

         This is a percipient-witness case.

         This 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.

         What is 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 percipient-witness case.

         Experts may testify as to hypotheticals but may not testify as to ultimate issues of law.

         The 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.

         Experts 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.

         Additionally, 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.

         Judging from their discussion at the February 22 conference, the parties do not seem to seriously disagree on these matters.

         * * *

         For the reasons stated on the record and below, on the parties' specific motions in limine, the court rules as follows:

         Plaintiffs' Motion in Limine 1: Expert Witness Mark Strassberg

         The motion is granted, largely for the reasons that the plaintiffs advance. Dr. Strassberg's testimony is excluded.

         Plaintiffs' Motion in Limine 2: Mr. Bui's “Other Bad Acts”

         The 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 shooting.

         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.

         Plaintiffs' Motion in Limine 3: Mr. Bui's Mental Condition

         The 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[].”[8] 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.”[9] At most, what is relevant is whether “it should have been ...


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