Nash-Perry v. City of Bakersfield ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TAMETRIA NASH-PERRY, ) Case No.: 1:18-cv-01512 JLT CDB ) 12 Plaintiff, ) ORDER DENYING PLAINTIFFS’ MOTION TO ) AMEND THE PRETRIAL ORDER 13 v. ) ) (Doc. 181) 14 CITY OF BAKERSFIELD, et al, ) ) 15 Defendants. ) ) 16 ) ) 17 JASON OKAMOTO, et al., ) ) 18 Plaintiffs, ) ) 19 v. ) ) 20 CITY OF BAKERSFIELD et al., ) ) 21 Defendants. ) ) 22 23 Tametria Nash-Perry and Jason Okamoto seek to hold Bakersfield Police Officer Alejandro 24 Patino and the City of Bakersfield liable for the fatal shooting of Christopher Okamoto under federal 25 and state law. (See generally Docs. 38, 44.) The Court held a jury trial, which ended with a mistrial 26 after the jury could not reach a unanimous verdict. A new trial is set for February 13, 2024. 27 Plaintiffs now request the Court amend the Pretrial Order to allow Plaintiffs to add an expert 28 witness to testify about the trajectory of the rounds fired from the officer’s gun and to identify several 1 exhibits not previously included in the Pretrial Order for the first trial. (Doc. 181.) Defendants oppose 2 the proposed modifications, asserting discovery should not be re-opened and Plaintiffs fail to show 3 manifest injustice would result. (Doc. 183.) For the reasons set forth below, the motion is DENIED. 4 I. Relevant Procedural Background 5 Tametria Nash-Perry and Jason Okamoto are the parents of Christopher Okamoto, and they 6 assert the defendants are liable for the wrongful death of their son. On October 31, 2018, Ms. Nash- 7 Perry filed a complaint asserting claims on her own behalf on behalf of the decedent. (Doc. 1.) On 8 August 14, 2019, Mr. Okamoto also filed a complaint, stating claims on his own behalf and as the 9 decedent’s successor-in-interest.1 (Doc. 1, Case No. 1:19-cv-1125-LJO-JLT.) The Court consolidated 10 the actions on November 8, 2019. (Doc. 42.) 11 Ms. Nash-Perry identified the following claims for relief in her Fourth Amended Complaint: (1) 12 unreasonable use of deadly force; (2) violation of substantive due process; (3) interference with familial 13 relationship and freedom of association; (4) battery; (5) negligence; (6) Monell liability for an 14 unconstitutional custom, practice, or policy; (7) Monell liability for inadequate training; and (8) Monell 15 liability for ratification of wrongful acts. (See generally Doc. 38 at 1, 10-28.) Similarly, Mr. Okamoto 16 identified the following claims for relief against the City of Bakersfield and Officer Patino: (1) 17 excessive force in violation of the Fourth and Fourteenth Amendments, (2) violation of substantive due 18 process under the Fourteenth Amendment, (3) conspiracy to violate civil rights, and (4) wrongful death 19 under California law. (Doc. 1, Case No. 1:19-cv-1125-LJO-JLT.) 20 On June 16, 2021, the parties stipulated to dismiss several causes of action with prejudice. 21 (Doc. 59.) Ms. Nash-Perry dismissed the Sixth, Seventh, and Eighth causes of action asserting Monell 22 liability. (Id. at 2.) Mr. Okamoto dismissed his claims against the City of Bakersfield for violations of 23 the Fourth and Fourteenth Amendments. (Id.) In addition, Mr. Okamoto dismissed the third cause of 24 action for conspiracy to violate civil rights against both defendants. (Id.) The Court approved the 25 stipulation and dismissed the claims with prejudice on June 21, 2021. (Doc. 60.) 26 27 1 The complaint filed by Mr. Okamoto also included claims by the minor plaintiff Z.S. (See Doc. 1, Case No. 28 1:19-cv-1125-LJO-JLT.) However, the Court granted summary adjudication of the claims of Z.S. (Doc. 79.) 1 On July 8, 2021, Defendants moved for summary judgment. (Doc. 61.) Plaintiffs argued the 2 physical evidence supported a conclusion that Okamoto was not standing in the position Patino 3 described. (See Doc. 64 at 10-11, 18-21.) According to Plaintiffs, “analysis of the gunshot wounds 4 that [] Okamoto sustained demonstrates that [Okamoto] could not have been facing Officer Patino in a 5 ‘one-handed shooting stance’ and pointing an object at Officer Patino during the entirety of the time 6 that Officer Patino was firing his weapon.” (Id. at 21.) Plaintiffs asserted: 7 The locations and trajectories of those wounds, including two gunshot wounds to the outer left chest that traveled front to back and left to right 8 (east to west direction), are consistent with a movement in which [the decedent] was rotating away from Patino in a westerly direction in an 9 attempt to retreat while trying to close the front door with his left arm, exposing his entire left side of his body to Officer Patino’s gunfire. 10 11 (Id.) Plaintiffs concluded that “[b]ased upon the upon the physical evidence, we know that it would 12 have been virtually impossible to achieve the gunshot wound positioning and trajectories if you relied 13 on Officer Patino’s statements.” (Id. at 24.) 14 Defendants argued Plaintiff’s claims concerning the physical evidence failed, noting that 15 Plaintiffs did not identify any expert opinions concerning trajectory or positioning. (Doc. 73 at 11-12.). 16 Specifically, Defendants observed: 17 The Plaintiffs do not offer the testimony or opinions of a ballistics expert regarding bullet trajectory or a bio-mechanical expert who renders 18 opinions regarding Christopher Okamoto’s body position. The Plaintiffs do not offer opinions of a forensics expert who reviewed the location of 19 the casings. The Plaintiffs do not offer expert testimony in terms of where Officer Patino was compared to where Christopher Okamoto was and the 20 forensic impact of those locations, or how Officer Patino’s height compared to Christopher Okamoto’s height impacted body trajectory. The 21 Plaintiffs do not offer any expert whatsoever who could say that any or all of the bullet wounds were inconsistent with Officer Patino’s statements 22 about what happened, or that the wounds would have precluded Christopher Okamoto from continuing to point the gun at Alejandro Patino 23 or which shows that Christopher Okamoto did not remain a threat to Officer Patino. Nor do Plaintiffs offer any expert who rendered opinions 24 on the impact of bullet trajectories when the bullets pass through a metal security gate. 25 26 (Doc. 73 at 11-12.) Defendants argued the lack of expert opinions on these topics was “fatal to the 27 Plaintiffs’ argument,” which was based only on theories rather than “admissible expert testimony.” 28 (Id. at 12, 13.) 1 The Court determined: “The evidence before the Court creates a dispute related to the 2 positioning of the decedent.” (Doc. 79 at 29.) The Court observed that, as Plaintiffs argued, a jury 3 could interpret the physical evidence to find that “the decedent was not standing in the position 4 identified by Patino and he could have exposed his left side only when turning away from the officer.” 5 (Id.) Because the Court was required to interpret the evidence in favor of the non-moving parties, the 6 Court denied summary judgment on August 31, 2021. (Id. at 29-30, 35.) 7 In October 2021, the parties began conferring about the Joint Pretrial Statement. (See Doc. 132- 8 1 at 2, Cohen Decl. ¶ 2.) However, after the parties received an email from the Court indicating it was 9 unlikely the trial would be conducted as scheduled (see Doc. 132-1 at 19), the parties ceased their 10 discussions concerning the Joint Pretrial Statement. The communications between counsel resumed in 11 May 2022, in anticipation of the trial re-scheduled for January 9, 2023. (See Doc. 129 at 6; Doc. 132 at 12 4.) Defendants filed the Joint Pretrial Statement on May 27, 2022, which included the digital 13 signatures of Mr. Meigs and Mr. Bryant on behalf of Plaintiffs. (Doc. 95 at 43.) 14 The Court held its pretrial conference with the parties on June 3, 2022. (Doc. 98.) During the 15 conference, the Court discussed the obligation of the parties to meet and confer concerning exhibits— 16 and to provide anticipated trial exhibits to the opposing party for examination—prior to filing any 17 motions in limine. The Court issued its Pretrial Order setting forth applicable deadlines on June 6, 18 2022. (Doc. 99.) In the Pretrial Order, the Court incorporated all exhibits identified by the parties in 19 their joint statement, which included the following exhibits for Plaintiffs: 20 1. Photographs of Scene and Apartment Complex 2. Photographs of Officer Patino in uniform on date of incident 21 3. Incident Reconstruction Photographs 4. Investigative Reports 22 5. Medical Records 6. Coroner’s Report/Autopsy Report 23 24 (Id. at 19.) The Court informed the parties: “NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS 25 ORDER, MAY BE ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING 26 THAT THIS ORDER SHOULD BE PREVENTED TO PREVENT ‘MANIFEST INJUSTICE.’” (Id. 27 at 18, citing Fed. R. Civ. P. 16(e), Local Rule 281(b)(11) [emphasis in original].) The parties were 28 instructed to “meet and confer to discuss any disputes related to the above listed exhibits and to pre- 1 mark and examine each other’s exhibits” no later than June 27, 2022. (Id. at 20.) The Court granted 2 the parties 14 days to “file and serve written objections to any of the provisions set forth in [the] order.” 3 (Id. at 25.) No objections were filed by either party. 4 Both parties filed motions in limine on July 1, 2022. (Docs. 102, 104.) Defendants moved to 5 exclude any argument “the location of the bullet wounds was inconsistent with Officer Patino’s 6 testimony that Mr. Okamoto had been pointing his gun at Officer Patino.” (Doc. 102 at 12.) 7 Defendants also moved to exclude certain opinions from Plaintiffs’ police procedure expert, Richard 8 Bryce. (Doc. 102 at 14.) The Court granted these motions on August 15, 2022. (Doc. 126 at 14-22.) 9 On December 28, 2022, Plaintiffs moved for ex parte relief, seeking modification of the Court’s 10 pre-trial order. (Doc. 129.) Plaintiffs requested to identify the following as their trial exhibits: 11 1. Photographs of Scene and Apartment Complex 2. Photographs of Officer Patino in uniform on date of incident 12 3. Incident Reconstruction Photographs 4. Investigative Reports 13 5. Medical Records 6. Coroner’s Report/Autopsy Report 14 7. Officer Patino’s training records 8. Bakersfield Police Department Policies and Procedures 15 a. Policy 300 – Use of Force b. Policy 302 – Deadly Force Review 16 c. Policy309 – Conducted Electrical Weapon d. Policy 310 – Officer-Involved Shootings 17 9. Learning Domains a. LD 20 – Use of Force 18 b. LD 33 – Arrest and Control 10. Academy Use of Force Power Point 19 11. Training Bulletin a. Escalation & De-escalation of Force 20 b. Use of Force Considerations 12. Photos from Brittney Saucedo Phone with Christopher Okamoto 21 13. Officer Patino’s Recorded Statements 14. Officer Celedon’s Recorded Statements 22 15. Brittney Saucedo Annual Mental Health Reassessment 16. Dick Bryce Expert Report 23 17. Curtis Cope Expert Report 18. Okamoto and Nash-Perry Family Photos 24 19. Video clips of Christopher Okamoto 25 (Doc. 129 at 7, 15-17.) Numbers 1 through 6 were identified in the Pretrial Order. (Doc. 99 at 19.) 26 Thus, Plaintiffs requested leave to add 13 exhibits, identified as Items 7-19 above. The Court found 27 Plaintiffs “failed to carry the burden to show manifest injustice would result from the denial of the 28 motion to amend the Pretrial Order to add the identified exhibits,” and denied the relief requested 1 under Rule 16 of the Federal Rules of Civil Procedure. (Doc. 134 at 13; see also id. at 9-13.) 2 The trial began on January 9, 2023. (See Doc. 138.) After the jury reported it could not reach a 3 unanimous verdict, the Court declared a mistrial on January 19, 2023. (Doc. 157.) The parties agreed 4 the matter shall be retried, and the second trial is now set for February 13, 2024. (Docs. 168, 169.) 5 On February 21, 2023, the Court ordered the parties to “file any proposed modification to the 6 Pretrial Order—a including any changes to witnesses and exhibits—no later than June 2, 2023.” (Doc. 7 173 at 1-2, emphasis omitted.) The Court also indicated that “the rulings on the past motions in limine 8 remain in effect.” (Id. at 2.) 9 On June 2, 2023, the parties filed a Joint Pretrial Statement, in which Plaintiffs identified 10 exhibits not included in the Court’s Pretrial Order. (Compare Doc. 180 at 47-48; with Doc. 99 at 19.) 11 Plaintiffs also indicated a “Forensic Pathologist/ Neuropathologist/ Epidemiologist/Trajectory Expert 12 [would] be named as soon as possible.” (Doc. 180 at 45.) The same date, Plaintiffs filed their motion 13 for modification of the Pretrial Order. (Doc. 181.) Defendants filed their opposition to the motion on 14 June 16, 2023. (Doc. 183.) Plaintiffs did not file a reply. 15 II. Amendment of a Pretrial Order 16 Pursuant to Rule 16 of the Federal Rules of Civil Procedure, “The court may hold a final 17 pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence.” 18 Fed. R. Civ. P. 16(e). An order issued after this conference “controls the course of the action unless 19 the Court modifies it.” Fed. R. Civ. P. 16(d). The pretrial order plays a “crucial rule … in 20 ‘implementing the purposes of the Federal Rules of Civil Procedure to secure the just, speedy, and 21 inexpensive determination of every action.’” Sousa v. Unilab Corp. II (Non-exempt) Mbrs. Group 22 Benefit Plan, 252 F.Supp.2d 1046, 1058 (E.D. Cal. 2002) (quoting United States v. First Nat’l Bank of 23 Circle, 652 F.2d 882, 886 (9th Cir.1981)). Thus, in order “to prevent unfair surprise and encourage 24 timely and orderly litigation,” parties may not “offer evidence or advance theories at trial which are 25 not included in the order or which contradict its terms.” Sousa, 252 F.Supp.2d at 1058 (quoting First 26 Nat’l Bank of Circle, 652 F.2d at 886). 27 Significantly, “[t]he court may modify the order issued after a final pretrial conference only to 28 prevent manifest injustice.” Fed. R. Civ. P. 16(e). Under this “manifest injustice” standard, a pretrial 1 order “is not an inexorable decree and may, under proper circumstances, be modified.” Jeffries v. 2 United States, 477 F.2d 52, 55 (9th Cir. 1973). Nevertheless, “manifest injustice” is a high standard, 3 and requires more than good cause for amendment. See United States ex rel. Concilio De Salud 4 Integral De Loíza, Inc. v. J.C. Remodeling, Inc.., 962 F.3d 34, 41 (5th Cir. 2020) (manifest injustice 5 “is a higher standard than is otherwise imposed”); Paramount Farms, Inc. v. Ventilex B.V., 2010 WL 6 3943599, n.3 (E.D. Cal. Oct. 4, 2010) (observing the standard to amend a pretrial order is under Rule 7 16(e) is “more stringent”). 8 To evaluate a request to amend a pretrial order, the Ninth Circuit instructs courts to consider 9 “(1) the degree of prejudice or surprise to the [non-movant] if the order is modified; (2) the ability of 10 the [non-movant] to cure the prejudice; (3) any impact of modification on the orderly and efficient 11 conduct of the trial; and (4) any willfulness or bad faith by the [movant].” Galdamez v. Potter, 415 12 F.3d 1015, 1020 (9th Cir. 2005). In addition, the Court may consider the diligence of the moving party. 13 See WLD Investors, Inc. v. Xecom Corp., 35 Fed. App’x 609, 612 (9th Cir. 2002) (acknowledging 14 “adverse consequences” to the moving party but finding their “extreme lack of diligence” did not 15 establish manifest injustice). The burden is on the moving party to show the requested amendment is 16 necessary to prevent manifest injustice. Galdamez, 415 F.3d at 1020; see also Byrd v. Guess, 137 F.3d 17 1126, 1132 (9th Cir. 1998) (“It is the moving party’s burden to show that a review of these factors 18 warrants a conclusion that manifest injustice would result if the pretrial order is not modified”) 19 superseded on other grounds. 20 “With respect to retrials, district courts have the discretion to admit or exclude new evidence or 21 witnesses on retrial.” Fresno Rock Taco, LLC v. Nat’l Surety Corp., 2013 WL 3803911, at *1 (E.D. 22 Cal. July 18, 2013) (citing Martin’s Herend Imports, Inc. v. Diamond & Gem Trading U.S. Co., 195 23 F.3d 765, 775 (5th Cir. 1999); Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1449-50 (10th Cir. 24 1993); Total Containment, Inc. v. Dayco Prods. Inc., 177 F. Supp. 2d 332, 338-39 (E.D. Pa. 2001); 25 Wright & Miller, Federal Practice & Procedure § 2803 (3d ed.)). The Court’s discretion extends to 26 permitting or refusing additional discovery. See Habecker v. Clark Equip. Co., 36 F.3d 278, 288 (3d 27 Cir. 1994); see also Yong v. Nemours Found., 432 F.Supp.2d 439, 441-42 (D. Del. 2006) (granting in 28 part a motion for additional discovery and new expert witnesses in preparation for a retrial). 1 Importantly, “if the moving party knew or should have known that certain witnesses or evidence was 2 necessary at the time of the first trial, then the exclusion of those witnesses during the retrial will likely 3 not be manifestly unjust.” Fresno Rock Taco, 2013 WL 3803911, at *1 (citation omitted); see also 4 American Int'l Trading Corp. v. Petroleos Mexicanos, 835 F.2d 536, 539 (5th Cir. 1987) (“If the 5 [moving party] knew or should have known that the witnesses were necessary, then the exclusion of 6 those witnesses was not manifestly unjust.”). 7 III. Discussion and Analysis 8 Plaintiffs request the following amendments to the Pretrial Order: (1) inclusion of “one 9 additional expert witness regarding trajectory,” (2) the identification of additional exhibits, and (3) 10 permission for “expert Richard Bryce to discuss his opinions.” (Doc. 181 at 3-4, 8 [emphasis omitted].) 11 Defendants oppose the motion, arguing Plaintiffs fail to show manifest injustice would result from the 12 denial of the motion. (See generally Doc. 183.) 13 A. Addition of a Trajectory Expert 14 In the parties new Joint Pretrial Statement—filed in anticipation of the second trial—Plaintiffs 15 indicated a “Forensic Pathologist/ Neuropathologist/ Epidemiologist/Trajectory Expert [would] be 16 named as soon as possible.” (Doc. 180 at 45.) Plaintiffs now seek leave to amend the Pretrial Order to 17 include a trajectory expert. (Doc. 181 at 5.) 18 Notably, Plaintiffs do not seek leave to include a previously disclosed expert, who was simply 19 omitted from the Pretrial Order. Rather, Plaintiffs implicitly seek leave to re-open expert discovery for 20 the purpose of identifying a trajectory expert. Plaintiffs assert: 21 Plaintiffs intended to show that Officer Patino shot decedent, Christopher Okamoto could not have been possibly standing in the position Officer 22 Patino describes given the wounds that were on Christopher Okamoto’s body. Officer Patino described Mr. Okamoto’s position as standing in a 23 “one handed shooting stance” where his right hand was extended outward with the subject’s right shoulder slightly forward (south) and the subject had 24 the firearm in his right hand. Therefore, his right chest would have been the dominate and open area of the body, whereas the left side of the body would 25 have been closed in and further away. The physical evidence, which includes the anatomical location and direction of the gunshot wounds 26 sustained by Mr. Okamoto along with Officer Patino’s testimony that Mr. Okamoto took a step back, is more consistent with a movement in which 27 Mr. Okamoto was retaining away from Officer Patino in a westerly direction in an attempt to retreat while trying to close the front door with his left arm, 28 exposing his entire left side of his body to Officer Patino’s gunfire. 1 Mr. Okamoto sustained multiple gunshot and bullet fragment wounds that dominated the far upper left side of his body, with the only discernable 2 horizontal trajectory being left to right (westbound) and not right to left (eastbound). These injuries are consistent with someone beginning to turn 3 their body to retreat. Further, the wound to the upper left trapezi also signifies that Mr. Okamoto was likely falling down at the time the bullet 4 entered his body. 5 (Doc. 181 at 6.) Plaintiffs assert they previously sought to establish the bullet trajectory and Okamoto’s 6 position through the testimony of Dr. Richard Whitmore, a forensic pathologist who performed the 7 autopsy. (Id.) Plaintiffs contend that they “were not aware that they needed an expert trajectory 8 witness … until after the first trial.” (Id.) 9 According to Plaintiffs, the addition of a trajectory expert is appropriate under Rule 16(e). 10 (Doc. 181 at 5-8.) Plaintiffs argue that “[t]here is very little to any prejudice or surprise to Defendants” 11 because they notified Defendants on May 17, 2023 they “would seek to add an additional expert 12 witness.” (Id. at 6-7.) Plaintiffs maintain that “any potential prejudice” may be cured because 13 Defendants can “take any additional expert depositions” prior to the second trial. (Id. at 7.) Further, 14 Plaintiffs assert a trajectory expert “will create a more efficient way to present [their] theory of the 15 case.” (Id.) Plaintiffs believe an expert “will have a positive impact on the orderly and efficient 16 conduct of the trial by allowing the jury to better understand Plaintiffs’ position without speculation 17 and conjecture.” (Id. at 7.) For example, Plaintiffs postulate: 18 A trajectory expert[] will be able to better explain that based on the wounds found in Mr. Okamoto’s body, and the injuries that Mr. Okamoto 19 suffered, there is no way the Officer Patino’s description is correct. Additionally, the opinion of an expert trajectory witness will also better 20 explain to the jurors that the physical evidence, is more consistent with a movement in which Mr. Okamoto was retaining away from Officer Patino 21 in a westerly direction in an attempt to retreat while trying to close the front door with his left arm, exposing his entire left side of his body to 22 Officer Patino’s gunfire. 23 (Id.) Finally, Plaintiffs contend they have not demonstrated any willfulness or bad faith in seeking 24 leave to add a trajectory expert. (Id. at 8.) 25 Defendants argue that “Plaintiffs have not and cannot demonstrate manifest injustice to reopen 26 expert discovery.” (Doc. 183 at 4.) Defendants assert they would be prejudiced by the designation of a 27 new expert, because Defendants would also would “have to locate, hire, and designate a rebuttal expert 28 in the same field.” (Id. at 8.) Defendants observe a new expert would require the preparing and 1 exchanging expert reports, taking depositions, and allowing for potential Daubert motions. (Id.) As a 2 result, Defendants contend the reopening of discovery would “take a significant amount of time” and 3 “cost the City a substantial amount of money.” (Id.) Defendants assert the re-opening of discovery 4 would also “burden the Court in having to address any issues that arise from these new or additional 5 expert opinions,” and “adversely impact the orderly and efficient conduct of the trial.” (Id. at 8-9.) 6 Furthermore, Defendants contend Plaintiffs should have known a trajectory or ballistics expert was 7 necessary, because “since the outset of this litigation that it has been the Defendants’ position that Mr. 8 Okamoto pointed a gun at Officer Patino which prompted Officer Patino to use deadly force.” (Id. at 9 7.) Defendants maintain, “Plaintiffs took a calculated risk in deciding not to have a retained expert 10 witness to testify as to body positioning and bullet trajectory,” and “should not be able to cure their 11 gamble.” (Id. at 7, 9 [emphasis omitted.]) Defendants argue, “A party’s regret over an unwise tactical 12 choice only to now realize that this was a mistake, is not the kind of ‘manifest injustice’ that Rule 16(e) 13 was designed to remedy.” (Id. at 6, quoting Beene v. Ford Motor Co., 2011 WL 765982, at *2 (D. CO 14 Feb. 25, 2011) (internal quotation marks omitted).) 15 Significantly, as Defendants argue, the reopening of discovery for Plaintiff to identify a new 16 expert would cause prejudice to Defendants. This Court observed that reopening discovery may 17 prejudice the non-moving party “when it requires additional costs and major alterations in trial tactics 18 and strategy.” Morris v. Sutton, 2019 WL 2994291, at *5 (E.D. Cal. July 9, 2019) (citing Kozlov v. 19 Associated Wholesale Grocers, Inc., 818 F.3d 380, 395 (8th Cir. 2016)). If the Court were to grant 20 Plaintiffs leave to reopen discovery to name a trajectory expert, Defendants would likewise need the 21 opportunity to name an expert and/or a rebuttal expert and would incur additional costs in doing so. 22 See Yeoman v. Ikea U.S. West, Inc., 2013 WL 5727547 at *4 (S.D. Cal. Oct. 22, 2013) (finding 23 additional costs weighed against reopening discovery where a defendant “incur additional costs by 24 having to designate an expert of its own to rebut whatever Plaintiffs new expert offers opinions about, 25 as well as to incur costs reviewing Plaintiffs’ expert’s opinions and taking the expert’s deposition”). 26 Clearly, a new expert would also require changes in trial tactics used in the first trial. The limited time 27 before trial—particularly considering parties received two years to complete expert discovery—offers 28 little opportunity to cure the prejudice that would result. (See Doc. 19 [the Court’s initial scheduling 1 order, dated March 11, 2019]; Doc. 55 at 2 [continuing the expert discovery deadline, based upon a 2 stipulation of the parties, to April 13, 2021].) 3 Reopening expert discovery at this juncture could also interfere with the orderly and efficient 4 conduct of trial if the parties had any dispute related to the disclosures, report, or qualifications of the 5 expert. Any such dispute would likely require a significant continuance of the second trial given the 6 judicial emergency currently existing in this Court, its limited judicial resources, and its impacted trial 7 schedule. Though it does not appear that Plaintiffs are exhibiting bad faith in seeking to add a 8 trajectory expert, they have demonstrated a lack of diligence in seeking additional discovery related to a 9 trajectory expert, which also weighs against granting the relief requested. 10 Plaintiffs’ assertion that they “were not aware that they needed an expert trajectory witness and 11 the additional exhibits until after the first trial” (Doc. 181 at 6) is flatly contradicted by the record. 12 Indeed, Plaintiffs acknowledge their entire theory of the case is based upon the showing that Mr. 13 Okamoto was not standing in the position identified by Patino. Plaintiffs made this argument when 14 opposing summary judgment, at which time Plaintiffs asserted an “analysis of the gunshot wounds that 15 [] Okamoto sustained demonstrates that [Okamoto] could not have been facing Officer Patino in a ‘one- 16 handed shooting stance’ and pointing an object at Officer Patino during the entirety of the time that 17 Officer Patino was firing his weapon.” (Doc. 64 at 21.) Plaintiffs argued that “[t]he location and 18 trajectories” of Okamoto’s wounds were “consistent with a movement in which [he] was rotating away 19 from Patino in a westerly direction in an attempt to retreat.” (Id., emphasis added.) Defendants 20 challenged this theory of the case, asserting the lack of any “admissible expert testimony” was “fatal to 21 Plaintiffs’ argument.” (Doc. 73 at 12.) Defendants argued: 22 The Plaintiffs do not offer the testimony or opinions of a ballistics expert regarding bullet trajectory or a bio-mechanical expert who renders 23 opinions regarding Christopher Okamoto’s body position. The Plaintiffs do not offer opinions of a forensics expert who reviewed the location of 24 the casings. The Plaintiffs do not offer expert testimony in terms of where Officer Patino was compared to where Christopher Okamoto was and the 25 forensic impact of those locations, or how Officer Patino’s height compared to Christopher Okamoto’s height impacted body trajectory. 26 27 (Id. 11-12 [emphasis added].) Again, the lack of a trajectory expert was raised before the first trial 28 when the Court granted Defendants’ motion to exclude any argument “the location of the bullet wounds 1 was inconsistent with Officer Patino’s testimony that Mr. Okamoto had been pointing his gun at Officer 2 Patino.” (Doc. 102 at 12.) The arguments in the motion for summary judgment and the motion in 3 limine, as well as the Court’s rulings thereon prior to the first trial, clearly show Plaintiffs made a 4 tactical decision to not seek a trajectory or ballistics expert prior to the first trial. Plaintiffs’ regret over 5 failing to obtain a trajectory expert—and their decision to build their case through other witnesses and 6 evidence—does not support a finding of manifest injustice. See Cleveland, 985 F.2d at 1449, 1450 7 (observing that “[i]t is always easy in hindsight for counsel to realize there may be a better way to try a 8 case the second time around,” but indicating the parties must show manifest injustice for identifying 9 new witnesses at a second trial). Accordingly, the Court finds Plaintiffs fail to meet their burden to 10 show manifest injustice would result if expert discovery were not reopened. To the contrary, granting 11 such relief would engender manifest injustice rather than prevent it. 12 B. Plaintiff’s Requested Exhibits 13 In the parties’ Joint Pretrial Statement—filed in response to the Court’s order directing the 14 parties to file any proposed modifications to exhibits—Plaintiffs identified several exhibits not included 15 in the Court’s Pretrial Order. (Compare Doc. 180 at 47-48; with Doc. 99 at 19.) Plaintiffs now request 16 the Court amend the Pretrial Order to include the following exhibits: 17 1. Photographs of Scene and Apartment Complex 2. Photographs of Officer Patino in uniform on date of incident 18 3. Incident Reconstruction Photographs 4. Investigative Reports 19 5. Coroner’s Report/Autopsy Report 6. Officer Patino’s training records 20 7. Bakersfield Police Department Policies and Procedures a. Policy 300 Use of Force 21 b. Policy 302 Deadly Force Review c. Policy 309 Conducted Electrical Weapon 22 d. Policy 310 Officer- Involved Shootings 8. Photos from Brittney Saucedo Phone with Christopher Okamoto 23 9. Officer Patino’s Recorded Statements 10. Officer Celedon’s Recorded Statements 24 11. Okamoto and Nash-Perry Family Photos 12. Demonstrative Prop of a Door 25 13. Funeral Costs 14. Video Clips from Christopher Okamoto’s Funeral 26 27 (Doc. 181 at 3-4.) Plaintiffs contend they “were not aware they needed … the additional exhibits until 28 after the first trial.” (Id. at 6.) Defendants oppose modifying the exhibit list, noting the Court 1 previously excluded some of the identified exhibits in ruling on the motions in line, and other proposed 2 exhibits were not disclosed to Defendants. (Doc. 183 at 9-10.) 3 1. Items 1-5 4 The first five items listed above were identified as exhibits in the Pretrial Order. (Doc. 99 at 19.) 5 Thus, no amendment is necessary related to these exhibits. 6 2. Training records 7 As an initial matter, Plaintiffs did not provide copies to the Court of the proposed exhibits. 8 Without such documents, it is unclear what “training records” Plaintiffs seek to identify as exhibits. 9 Moreover, Plaintiffs do not make any argument regarding “Officer Patino’s training records.” In fact, 10 the only mention of the “training records” is in the proposed list of exhibits. The Court declines to 11 manufacture an argument on Plaintiffs’ behalf to show manifest injustice would result if the “training 12 records” were not permitted. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 13 2003 (noting the Ninth Circuit “repeatedly admonished” the Court “cannot manufacture arguments” 14 on behalf of a party); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (indicating the 15 Court would not address a matter that was not “specifically and distinctly argue[d]” by the plaintiff). 16 3. BPD policies and procedures 17 In support of the request to include the police department’s policies and procedures as exhibits, 18 Plaintiffs broadly state: 19 The Bakersfield Police Department Policies and Procedures, the Learning Domains, the Academy Use of Force Power Point, and the Training 20 Bulletins will [] assist the jury to determine whether or not Officer Patino’s use of force was reasonable or unreasonable in this incident. All 21 of the additional training, policies, procedures and learning domains are used within Officer Patino’s department and the State of California to 22 determine whether the use of force was objectively reasonable. 23 (Doc. 181 at 8.) Defendant opposes the inclusion of Bakersfield Police Department policies as exhibits, 24 asserting they “are clearly inadmissible.” (Doc. 183 at 9-10, citing e.g., Trevino v. City of Bakersfield, 25 2016 U.S. Dist. Lexis 93294, at * 25-26 (E.D. CA July 18, 2016); CF Roguz v. Walsh, 2013 U.S. Dist. 26 Lexis 50985, * 22-23 (D. CT 2013); Whren v. United States, 517 U.S. 806, 815 (1996).) 27 Plaintiffs do not identify which specific Learning Domains or Training Bulletins they seek to 28 identify as exhibits. In addition, the Learning Domains and Training Bulletins are not included either 1 in the list above or the new Joint Pretrial Statement. (Doc. 181 at 1-3; Doc. 180 at 47 [new Joint 2 Pretrial Statement].) Similarly, Plaintiffs did not list the “Academy Use of Force Power Point” as a 3 potential exhibit. (Doc. 181 at 1-3; see also Doc. 180 at 47.) Thus, it appears Plaintiffs no longer seek 4 to exhibit these materials.2 (See Doc. 180 at 47 [new Joint Pretrial Statement].) 5 Moreover, absent a showing the written materials are not hearsay, or there is a hearsay 6 exception, the polices could not be admitted. To the extent a Department policy is relevant—despite 7 the dismissal of the Monell claims—an expert witnesses may discuss it but only if it formed a basis for 8 the expert’s opinion. For example, a police procedure expert may testify as to how a well-trained 9 officer will act, based upon his or her training. On the other hand, identifying the policies and training 10 materials as exhibits would disrupt the conduct of trial, as the deadline for motions in limine has 11 expired and Defendants would be forced to raise any evidentiary objections during the trial. The Court 12 previously determined Plaintiffs failed to demonstrate manifest injustice related to these materials 13 (Doc. 134 at 13), and it declines to disturb that finding. 14 4. Officers’ recorded statements 15 Plaintiffs included the recorded statements of Officers Patino and Celedon as potential exhibits 16 in their list. (Doc. 181 at 3-4.) However, this was the only mention of the recorded statements in the 17 motion, and Plaintiffs did not provide any argument in support of a conclusion that manifest injustice 18 would result if the recorded statements were not exhibited. (See generally id. at 5-8.) Again, the 19 Court declines to argue on Plaintiffs’ behalf that manifest injustice would result if the recorded 20 statements are not exhibits. It is Plaintiffs’ burden to do so when pursuing a motion under Rule 16(e). 21 See Indep. Towers, 350 F.3d at 929; Byrd, 137 F.3d at 1132 (indicating it is the burden of the moving 22 party to demonstrate exhibits are necessary to prevent manifest injustice). 23 5. Pre-incident photos of Decedent 24 Plaintiffs seek to include unidentified “Photos from Brittney Saucedo Phone with Christopher 25 Okamoto” and “Okamoto and Nash-Perry Family Photos.” (Doc. 181 at 3-4.) Importantly, the Court 26 previously granted the motion in limine to exclude any pre-incident photographs of Defendant. (Doc. 27 28 2 The Court also will not speculate as to which specific Learning Domains or training materials Plaintiffs may have intended to exhibit. 1 126 at 29.) In so ruling, the Court observed: 2 [T]hough pictures may be relevant to damages, pre-incident photographs “run[] the risk of eliciting the sympathy of the jury and not accurately 3 representing the decedent on the day of the incident at issue in this action.” See Crawford v. City of Bakersfield, 2016 WL 5870209 at *7 4 (E.D. Cal. Oct. 6, 2016); see also Estate of Jaquez v. Flores, 2016 WL 1060841 at *12 (S.D.N.Y. Mar. 17, 2016) (granting a motion in limine to 5 preclude pre-incident photos of the decedent—which included the decedent with his family—for non-damages reasons, as the photographs 6 were “not relevant to any issue” and “clearly serve[d] to elicit sympathy from the jury”). 7 8 (Id. at 28-29.) To the extent Plaintiffs now seek reconsideration of the Court’s ruling on the motion in 9 limine, Plaintiffs do not demonstrate such relief is appropriate. See Navajo Nation v. Confederated 10 Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (“Reconsideration 11 is indicated in the face of the existence of new evidence, an intervening change in the law, or as 12 necessary to prevent manifest injustice”). It remains true that pre-incident photographs of Okamoto 13 may elicit sympathy from the jury, without properly representing him on the day of his death. 14 Therefore, the Court’s order granting the motion in limine to exclude pre-incident photos remains in 15 place and the Pretrial Order will not be amended to include the proposed exhibits.3 16 6. Demonstrative door prop 17 Demonstrative aids may be used in trial and are generally not admitted into evidence. See 18 United States v. Wright, 412 F. App'x 993, 993 (9th Cir. 2011); United States v. Walema, 194 F.3d 19 1319 (9th Cir. 1999). Because the demonstrative aid will not be admitted, Plaintiffs do not 20 demonstrate manifest injustice for the door prop being excluded as an exhibit in the Pretrial Order.4 21 7. Funeral costs 22 Plaintiffs seek, for the first time, to include the costs of Okamoto’s funeral as an exhibit. (Doc. 23 181 at 4.) The funeral costs go to the damages suffered by Plaintiffs, which is an element of the 24 25 3 Moreover, it is unclear that photos from Ms. Saucedo have any relevance even as to damages because she is no longer a named plaintiff in this action. 26 4 Plaintiffs have not provided any information to either Defendants or the Court regarding this demonstrative aid. 27 (See Doc. 183 at 9, n.3.) It is unclear whether the door is a replica, has the same characteristics doors, or is the same size of either the security door or front door of the apartment. Therefore, the Court makes no finding 28 regarding the propriety of the door prop at this time. 1 negligence claim. See Ileto v. Glock, Inc., 349 F.3d 1191, 1203 (9th Cir. 2003) (indicating that to 2 succeed on a claim for negligence, a plaintiff “must establish four required elements: (1) duty; (2) 3 breach; (3) causation; and (4) damages”). Clearly, Plaintiffs should have known that evidence related 4 to their damages—including funeral costs—was necessary at the time of the first trial and must have 5 made a tactical decision to not present such evidence. As a result, the Court cannot find the exclusion 6 of such evidence at the second trial is manifestly unjust. See Fresno Rock Taco, 2013 WL 3803911, at 7 *1; see also American Int'l Trading Corp., 835 F.2d at 539. 8 8. Funeral footage 9 Plaintiffs request to exhibit unspecified footage from Okamoto’s funeral. It is unclear whether 10 this footage includes pre-incident photos of him—which have been excluded, as set forth above—or if 11 the footage is of the plaintiffs at the funeral. Regardless, the footage would engender the sympathy of 12 the jury, and would be subject to a motion in limine similar to that addressing the photographs of 13 Okamoto. Moreover, the proposed evidence undoubtedly existed at the time of the first trial. 14 Consequently, Plaintiffs fail to demonstrate manifest injustice from its exclusion. See Fresno Rock 15 Taco, 2013 WL 3803911, at *1; see also American Int'l Trading Corp., 835 F.2d at 539. 16 C. Testimony of Richard Bryce 17 Plaintiffs observe that Mr. Bryce, their police procedures expert, “opined that ‘Officer Patino 18 had ample time and space to step to the right side of the doorway, using the exterior wall of … the 19 apartment and the locked security door as cover, and should have attempted to gain compliance from 20 Mr. Okamoto before using deadly force.’” (Doc. 181 at 8-9, quoting Doc. 102 at 14.) Plaintiffs contend 21 that Mr. Bryce should be permitted “to discuss his opinions.” (Id. at 8, emphasis omitted.) Defendants 22 oppose the request of Plaintiffs “to expand on the opinions” of Mr. Bryce. (See Doc. 183 at 9.) 23 Importantly, the Court addressed the opinions of Mr. Bryce in its order on Defendants’ Motion 24 In Limine Number 4. (Doc. 126 at 16-22.) Thus, it appears Plaintiffs seek reconsideration of the 25 Court’s ruling. 26 1. Order on motions in limine 27 In the motion, Defendants observed that Mr. Bryce gave the following “opinions and 28 observations” in his report: 1 1. Officer Alejandro Patino unnecessarily used deadly force when he had other options available to him. 2 2. Officer Patino failed to inform Mr. Okamoto that he was going to use deadly force prior to shooting him. 3 3. Officer Patino’s commands to open the door were not necessarily decipherable to Mr. Okamoto’s [sic] while he was in his apartment. 4 4. Officer Patino did not attempt to de-escalate the confrontation with Mr. Okamoto rather than immediately begin shooting him eight times. 5 6 (Doc. 102 at 14, quoting Bryce Report pp. 2-4 [Doc. 102 at 86-87].) Mr. Bryce summarized his 7 “ultimate opinion” as follows: 8 It is my opinion based on the facts and materials presented to me, that when Officer Patino confronted Mr. Okamoto at the door of his residence, 9 Mr. Okamoto was unaware that it was a police officer banging on his door. He apparently approached the door with a BB gun in an attempt to 10 dissuade whoever was at the door from entering his apartment. 11 When Officer Patino observed the BB gun in Mr. Okamoto’s hand he immediately, without warning, began firing at Mr. Okamoto through the 12 locked security door. 13 Officer Patino had ample time and space to step to the right side of the doorway, using the exterior wall of the wall of the apartment and the 14 locked security door as cover, and should have attempted to gain compliance from Mr. Okamoto before using deadly force. 15 It is my opinion based on the information I have received and my prior 16 experience as a peace officer, that it was not necessary for Officer Patino to shoot and kill Mr. Okamoto to protect his own safety. 17 18 (Doc. 102 at 14, quoting Bryce Report pp. 4-5 [Doc. 102 at 87-88].) Thus, Plaintiffs have extrapolated 19 a portion of the “ultimate opinion,” and assert Mr. Bryce should be permitted to discuss it. 20 As noted by the Court in addressing the motion, under Rule 702 of the Federal Rules of Civil 21 Procedure, “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or 22 education may testify thereto in the form of an opinion or otherwise.” Fed. R. Evid. 702. Such expert 23 testimony is permissible if: 24 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in 25 issue; (b) the testimony is based on sufficient facts or data; 26 (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts 27 of the case. 28 Fed. R. Evid. 702. Ultimately, the Court found the identified statements of Mr. Bryce included legal 1 conclusions cast as opinions; speculation; findings of fact “within the purview of the jury;” and 2 opinions that “would not be helpful for the jury,” because they did not require any “scientific, technical, 3 or other specialized knowledge.” (Doc. 126 at 18-22.) Accordingly, Defendants’ motion in limine to 4 exclude these opinions was granted. (Id.) 5 2. Reconsideration under Rule 60(b) 6 Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “[o]n motion and just terms, the 7 court may relieve a party or its legal representative from a final judgment, order, or proceeding.” Id. 8 Rule 60(b) indicates such relief may be granted “for the following reasons:” 9 (1) mistake, inadvertence, surprise, or excusable neglect; 10 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); 11 (3) fraud (whether previously called intrinsic or extrinsic) 12 misrepresentation, or misconduct by an opposing party; 13 (4) the judgment is void; 14 (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it 15 prospectively is no longer equitable; or 16 (6) any other reason that justifies relief. 17 Fed. R. Civ. P. 60(b). 18 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the interests 19 of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F. 3d 20 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 21 2008) (addressing reconsideration under Rule 60(b)). In seeking reconsideration under Rule 60, the 22 moving party “must demonstrate both injury and circumstances beyond his control.” Harvest, 531 F.3d 23 at 749 (internal quotation marks, citation omitted). 24 “A motion for reconsideration should not be granted, absent highly unusual circumstances, 25 unless the district court is presented with newly discovered evidence, committed clear error, or if there 26 is an intervening change in the controlling law,” and it “may not be used to raise arguments or present 27 evidence for the first time when they could reasonably have been raised earlier in the litigation.” 28 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) 1 (internal quotations marks, citations omitted) (emphasis in original). Further, Local Rule 230(j) 2 requires a movant to show “what new or different facts or circumstances are claimed to exist which did 3 not exist or were not shown upon such prior motion, or what other grounds exist for the motion;” and 4 “why the facts or circumstances were not shown” at the time the substance of the order which is 5 objected to was considered. 6 3. Analysis 7 Plaintiffs observe that anticipated changes to Rule 702 of the Federal Rules of Evidence “are 8 not substantive, but rather they clarify how the Rule was meant to be applied since it was first amended 9 in 2000.” (Doc. 181 at 9, citing In re Anderson, No. 15-21681, 2023 WL 2229355 (Bankr. W.D. Tenn. 10 Jan. 20, 2023).) Plaintiffs note that under the anticipated changes—which should be effective 11 December 1, 2023—“proponents do not have to demonstrate by a preponderance of evidence that the 12 assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence 13 that their opinions are reliable.” (Id., quoting Fed. R. Evid. 702 Advisory Committee’s Note to the 14 2023 amendment; see also In re Anderson, 2023 WL 2229355, at *3-4. According to Plaintiffs, “using 15 his specialized knowledge, based on the sufficient facts and data involved in this matter, reliable 16 principles, and reliable application of said principles to the facts of this case, Mr. Bryce can show that 17 Officer Patino had other options than to use unnecessary force.” (Id. at 9.) 18 Significantly, Plaintiffs point to an anticipated changes to the Federal Rules of Evidence. Thus, 19 there has not yet been a change in controlling law. Regardless, as Plaintiffs explicitly acknowledge, the 20 changes are not substantive. Under the anticipated changes, an expert’s opinion may still be excluded 21 where it is not helpful to the jury, is speculative, or is not “based on sufficient facts or data.” See In re 22 Anderson, 2023 WL 2229355, at *3-4. As the Court previously determined, some opinions by Mr. 23 Bryce intrude on the authority of the jury. The jury must review the evidence, including the testimony 24 of the officers regarding how quickly the events unfolded and the space available on the apartment 25 landing, to determine whether Patino had sufficient time and space to take cover. The opinions of Mr. 26 Bryce on the ultimate issues seek to tell the jury how to determine the relevant questions, rather than to 27 provide them assistance on matters that are beyond their lay experiences. Thus, testimony telling the 28 jury what the facts are is an impermissible “attempt[] to substitute the expert’s judgment for the jury’s 1 || [judgment].” See Mukhtar v. Cal. State University, 299 F.3d 1053, 1066 n.10 (9th Cir. 2002) (quoting 2 || United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994)). Because Plaintiffs fail to show 3 || reconsideration of the Court’s motion in limine is appropriate, the requested relief is denied. 4 ||IV.__ Conclusion and Order 5 Plaintiffs fail to carry the burden to show manifest injustice would result if the Pretrial Order | 6 not amended. In addition, Plaintiffs do not establish they are entitled to the extraordinary remedy of 7 || reconsideration under Rule 60. Accordingly, Plaintiffs’ motion to amend the Pretrial Order (Doc. 18 8 |}is DENIED. 9 10 IS SO ORDERED. Dated: _ November 29, 2023 Charis [Tourn 12 TED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20