Kass v. County of Alameda ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MATTHEW KASS, Case No. 18-cv-01302-JSC 8 Plaintiff, ORDER RE: DEFENDANTS’ MOTION 9 v. IN LIMINE NO. 4, AND PRETRIAL PREPARATIONS 10 S. HOLLAND, et al., Re: Dkt. No. 80 Defendants. 11 12 13 Matthew Kass brings a Section 1983 excessive force claim against Alameda County 14 Sheriff Deputy Ella and Deputy Holland.1 This action was reassigned to the undersigned in March 15 2020 and the parties stipulated to a trial date in February 2021. (Dkt. Nos. 93, 99.) At the Pretrial 16 Conference in February 2021, the parties agreed to move the trial date to December 2021 in light 17 of the ongoing COVID-19 pandemic. (Dkt. No. 108.) Trial is set to commence on December 6, 18 2021 with a Final Pretrial Conference November 18, 2021. 19 I. IN LIMINE MOTIONS 20 At the Pretrial Conference, the parties indicated that the only motion in limine about which 21 there is a dispute is Defendants’ motion in limine no. 4. (Dkt. Nos. 80; 108.) That motion is now 22 fully briefed. (Dkt. Nos. 80; 109.) After carefully considering the parties’ briefs and the relevant 23 legal authority, the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), and 24 grants in part and denies in part Defendants’ motion in limine no. 4. 25 26 27 1 The claims against the other Defendants, including Alameda County, were dismissed pursuant to 1 DISCUSSION 2 Defendants move to exclude the testimony of Plaintiff’s police practices expert, Roger 3 Clark, under Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 4 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). In particular, 5 Defendants move to exclude Mr. Clark’s opinion numbers 2-4 insisting that Mr. Clark cannot 6 testify as to legal conclusions or attempt to resolve disputed factual issues, including credibility 7 determinations, through his testimony. (Dkt. No. 80 at 2-3.) 8 Under Rule 702 of the Federal Rules of Evidence, a witness may offer expert testimony if 9 the following requirements are met: (a) the expert’s scientific, technical, or other specialized 10 knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) 11 the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable 12 principles and methods; and (d) the expert has reliably applied the principles and methods to the 13 facts of the case. Fed. R. Evid. 702. These criteria can be distilled to two overarching 14 considerations: “reliability and relevance.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 15 (9th Cir. 2011) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). The 16 inquiry does not, however, “require a court to admit or exclude evidence based on its 17 persuasiveness.” Ellis, 657 F.3d at 982. 18 1. Clark Opinion Nos. 2 and 3 19 Defendants maintain that portions of Mr. Clark’s second and third opinions are 20 impermissible legal conclusions. Specifically, Defendants challenge as impermissible Mr. Clark’s 21 Opinion No. 2 that: (1) “There is nothing in the record to indicate that Mr. Kass posed a credible 22 threat to the Defendant Deputies”; and (2) “Furthermore, the nature of [plaintiff’s] crime was merely being too close to his ex-wife after it appeared he had complied with her request to bring 23 their son to her house. His behavior simply did not justify the use of any physical force or even 24 handcuffs at this point since it was a misdemeanor committed outside the officers’ presence and 25 they had not even spoken with the reporting party to acquire a citizen’s arrest.” (Dkt. No. 80-1, 26 Clark Report at 9-10.) In addition, Defendants object to Mr. Clark’s statement in Opinion No. 3 27 1 violation of POST standards and Law (as taught to all officers in California by POST).” (Id. at 2 10.) 3 Generally, “an expert witness cannot give an opinion as to her legal conclusion, i.e., an 4 opinion on an ultimate issue of law. Similarly, instructing the jury as to the applicable law is the distinct and exclusive province of the court.” See Hangarter v. Provident Life & Accident Ins. 5 Co., 373 F.3d 998, 1016 (9th Cir. 2004) (internal citations and quotation marks omitted). 6 However, a police practices expert can testify as to “whether the officers’ conduct comported with 7 law enforcement standards” including the California’s Peace Officer Standards and Training and 8 whether the officers could have used alternative means to effectuate the arrest. Smith v. City of 9 Hemet, 394 F.3d 689, 703 (9th Cir. 2005). 10 Accordingly, Mr. Clark is permitted to testify regarding whether the deputies’ conduct— 11 assuming the facts are found as Mr. Clark states—comported with law enforcement standards and 12 whether there were alternative means for the deputies to obtain Plaintiff’s compliance. Mr. Clark, 13 however, cannot testify as to the ultimate legal question of whether the force used by the deputies 14 was or was not excessive. Depending on how the evidence comes in and whether Plaintiff lays a 15 proper foundation, Mr. Clark may be able to testify regarding whether Plaintiff posed a “credible 16 threat” to the extent that the term is not being used as a legal term, but rather is in keeping with 17 law enforcement training regarding evaluation of situational threats. The Court reserves ruling on 18 this issue. 19 2. Clark Opinion No. 4 20 Defendants also move to exclude the following portions of Opinion No. 4: 21 Taking body camera video evidence and civilian testimony as true, Defendant Deputies Holland and Ella submitted false police reports 22 in violation of ASD policy, POST training and the Law (as taught by POST). Mr. Kass did not take a bladed stance, did not attempt to walk 23 away, was not violently resistive and was struck with a baton while his hands were behind his back (as stated by eyewitness Renaud). It 24 appears from the record that the deputies are attempting to justify their conduct by claiming Mr. Kass was violently resisting arrest and 25 attempting to flee. 26 (Dkt. No. 80-1, Clark Report at 10.) Defendants contend that this testimony improperly seeks to 27 weigh the evidence and make a credibility determination regarding the deputies’ conduct. 1 accurate, but instead, will testify to certain hypothetical questions—based on the facts here. 2 As discussed above, Mr. Clark may testify regarding whether certain conduct is consistent 3 with law enforcement standards and training. Mr. Clark may also respond to hypothetical 4 questions which reflect Plaintiff’s version of events. However, Mr. Clark may not testify as to the 5 credibility of the deputies’ versions of events or as to his own interpretation of the evidence. See Reed v. Lieurance, 863 F.3d 1196, 1209 (9th Cir. 2017) (“[a]n expert witness is not permitted to 6 testify specifically to a witness’ credibility”) (internal citation and quotation marks omitted); see 7 also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also United States v. Binder, 8 769 F.2d 595, 602 (9th Cir.1985) (“Credibility determinations, the weighing of the evidence, and 9 the drawing of legitimate inferences from the facts are jury functions.”). The above paragraph is 10 not based on a hypothetical, but rather Mr. Clark’s own evaluation and interpretation of the video 11 and testimonial evidence. Such testimony is not proper expert testimony. 12 Accordingly, Defendants’ motion in limine No. 4 is granted in part and denied in part as 13 set forth above. 14 II. PRETRIAL ORDER 15 A. The jury trial will begin on December 6, 2021, at 8:30 a.m., in Courtroom E, 15th 16 Floor, U.S. District Court, 450 Golden Gate, San Francisco, California. 17 B. The Court is expecting the length of the trial to not exceed 5 court days. 18 C. A Final Pretrial Conference shall be held on November 18, 2021, at 2:00 p.m., in 19 Courtroom E, 15th Floor. Lead trial counsel for each party shall attend. 20 D. At least seven days prior to date of the Final Pretrial Conference the parties shall do 21 the following: 22 1. In lieu of preparing a Joint Pretrial Conference Statement, the parties shall 23 meet and confer in person, and then prepare and file a jointly signed Proposed Final Pretrial Order 24 that contains: (a) a brief description of the substance of claims and defenses which remain to be 25 decided; (b) a statement of all relief sought; (c) all stipulated facts; (d) a joint exhibit list in 26 numerical order, including a brief description of the exhibit and Bates numbers, a blank column 27 for when it will be offered into evidence, a blank column for when it may be received into 1 evidence, and a blank column for any limitations on its use; and (e) each party’s separate witness 2 list for its case-in-chief witnesses (including those appearing by deposition), including, for all such 3 witnesses (other than party plaintiffs or defendants), a short statement of the substance of his/her 4 testimony and, separately, what, if any, non-cumulative testimony the witness will offer. For each 5 witness, state an hour/minute time estimate for the direct examination (only). Items (d) and (e) 6 should be submitted as appendices to the proposed order. The proposed order should also state 7 which issues, if any, are for the Court to decide, rather than the jury. 8 2. File a joint set of proposed instructions on substantive issues of law 9 arranged in a logical sequence. If undisputed, an instruction shall be identified as “Stipulated 10 Instruction No. ____ Re ___________,” with the blanks filled in as appropriate. If disputed, each 11 version of the instruction shall be inserted together, back to back, in their logical place in the 12 overall sequence. Each such disputed instruction shall be identified as, for example, “Disputed 13 Instruction No. ____ Re ____________ Offered by _________________,” with the blanks filled 14 in as appropriate. All disputed versions of the same basic instruction shall bear the same number. 15 Any modifications to a form instruction must be plainly identified. If a party does not have a 16 counter version and simply contends that no such instruction in any version should be given, then 17 that party should so state (and explain why) on a separate page inserted in lieu of an alternate 18 version. With respect to form preliminary instructions, general instructions, or concluding 19 instructions, please simply cite to the numbers of the requested instructions in the current edition 20 of the Ninth Circuit Model Jury Instructions. Other than citing the numbers, the parties shall not 21 include preliminary, general, or concluding instructions in the packet. 22 3. File a separate memorandum of law in support of each party’s disputed 23 instructions, if any, organized by instruction number. 24 4. File a joint set of proposed voir dire questions supplemented as necessary 25 by separate requests. 26 5. File trial briefs on any controlling issues of law. 27 6. File proposed verdict forms, joint or separate. 1 8. File a joint simplified Statement of the Case to be read to the jury during 2 voir dire as part of the proposed jury instructions. Unless the case is extremely complex, this 3 statement should not exceed one page. 4 B. Any motions in limine shall be submitted as follows: at least twenty (20) calendar 5 days before the conference, the moving party shall serve, but not file, the opening brief. At least 6 ten (10) calendar days before the conference, the responding party shall serve the opposition. 7 There will be no reply. When the oppositions are received, the moving party should collate the 8 motion and the opposition together, back-to-back, and then file the paired sets at least seven (7) 9 calendar days before the conference. Each motion should be presented in a separate memorandum 10 and properly identified, for example, “Plaintiff’s Motion in Limine No. 1 to Exclude . . . .” Each 11 party is limited to bringing five motions in limine. The parties are encouraged to stipulate where 12 possible, for example, as to the exclusion of witnesses from the courtroom. Each motion should 13 address a single, separate topic, and contain no more than seven pages of briefing per side. 14 C. Hard-copy courtesy copies of the above documents shall be delivered by NOON 15 the day after filing. The Joint Proposed Final Pretrial Order, jury instructions, and verdict form 16 shall be submitted via e-mail as attachments to JSCpo@cand.uscourts.gov. The Court requests that 17 all hard-copy submissions be three-hole-punched. 18 III. PRETRIAL ARRANGEMENTS 19 A. Should a daily transcript and/or real-time reporting be desired, the parties shall 20 make arrangements with Rick Duvall, Supervisor of the Court Reporting Services, at 21 (415) 522-2079, at least ten (10) calendar days prior to the trial date. 22 B. During trial, counsel may wish to use overhead projectors, laser-disk/computer 23 graphics, poster blow-ups, models, or specimens of devices. Equipment should be shared by all 24 counsel to the maximum extent possible. The Court provides no equipment other than an easel. 25 The United States Marshal requires a court order to allow equipment into the courthouse. For 26 electronic equipment, parties should be prepared to maintain the equipment or have a technician 27 handy at all times. The parties shall tape extension cords to the carpet for safety. The parties may 1 SCHEDULING 2 Trial will be conducted from 8:30 a.m. to 2:30 or 3:00 p.m., depending on the availability 3 of witnesses, Monday through Friday. Counsel must arrive by 8:15 a.m., or earlier as needed, for 4 any matters to be heard out of the presence of the jury. The jury will be called at 8:30 a.m. 5 THE JURY 6 In civil cases, there are no alternate jurors and the jury is selected as follows: 7 Eighteen to twenty jurors are called to fill the jury box and the row in front of the bar, and are 8 given numbers (1 through 20). The remaining potential jurors will be seated in the public benches. 9 Hardship excuses will usually be considered at this point. The Court will then have each juror 10 orally answer a set of written questions (attached to this Order as Exhibit A) and will itself ask 11 questions of those in the box and in the front of the bar. Counsel may then conduct a limited voir 12 dire. Challenges for cause will then be addressed out of the presence of the potential jurors. The 13 Court will consider whether to fill in the seats of the stricken jurors. If so, questions will be asked 14 of the additional jurors and cause motions as to them will be considered. After a short recess, each 15 side may exercise its allotment of peremptory challenges out of the presence of the potential 16 jurors. The eight (or such other size as will constitute the jury) surviving the challenge process 17 with the lowest numbers become the final jury. For example, if the plaintiff strikes 1, 5, and 7 and 18 the defendant strikes 2, 4, and 9, then 3, 6, 8, 10, 11, 12, 13, and 14 become the final jury. If more 19 (or fewer) than eight jurors are to be seated, then the starting number will be adjusted. So too if 20 more than a total of six peremptories are allowed. Once the jury selection is completed, the jurors’ 21 names will be read again and they will be seated in the jury box and sworn. The Court may alter 22 this procedure in its discretion and after consultation with the parties. 23 WITNESSES 24 At the close of each trial day, all counsel shall exchange a list of witnesses for the 25 next two full court days and the exhibits that will be used during direct examination (other than 26 for impeachment of an adverse witness). Within 24 hours of such notice, all other counsel shall 27 provide any objections to such exhibits and shall provide a list of all exhibits to be used with the 1 exchanged prior to the first day of trial. All such notices shall be provided in writing. 2 3 EXHIBITS 4 A. Prior to the Final Pretrial Conference, counsel must meet and confer in person to 5 consider all exhibit numbers and objections and to eliminate duplicate exhibits and confusion over 6 || the precise exhibit. 7 B. Use numbers only, not letters, for exhibits, preferably the same numbers as were 8 || used in depositions. Blocks of numbers should be assigned to fit the need of the case (e.g., 9 Plaintiff has 1 to 100, Defendant A has 101 to 200, Defendant B has 201 to 300, etc.). A single 10 || exhibit should be marked only once. If the plaintiff has marked an exhibit, then the defendant 11 should not re-mark the exact document with another number. Different versions of the same 12 || document, e.g., a copy with additional handwriting, must be treated as different exhibits with 13 different numbers. To avoid any party claiming “ownership” of an exhibit, all exhibits shall be v 14 marked and referred to as “Trial Exhibit No. □□ not as “Plaintiff’?s Exhibit” or “Defendant’s O 15 || Exhibit.” a 16 C. The exhibit tag shall be in the following form: 17 UNITED STATES DISTRICT COURT 18 NORTHERN DISTRICT OF CALIFORNIA 19 TRIAL EXHIBIT 100 20 Case No. 21 Date Entered 22 By 23 Deputy Clerk 24 Counsel preferably will make the tag up in a color that will stand out (yet still allow for 25 photocopying), but that is not essential. Place the tag on or near the lower right-hand corner or, if a 26 5 photograph, on the back. Counsel should fill in the tag but leave the last two spaces blank. The 4 3g parties must jointly prepare a single set of all trial exhibits that will be the official record set to be 1 used with the witnesses and on appeal. Each exhibit must be tagged, three-hole-punched, separated 2 with a label divider identifying the exhibit number, and placed in 3-ring binders. Spine labels 3 should indicate the numbers of the exhibits that are in the binders. Each set of exhibit binders 4 should be marked as “Original.” Deposit the exhibits with the deputy clerk seven (7) days before 5 the Pretrial Conference. 6 D. Counsel must consult with each other and with the deputy clerk at the end of each 7 trial day and compare notes as to which exhibits are in evidence and any limitations thereon. If 8 there are any differences, counsel should bring them promptly to the Court’s attention. 9 E. In addition to the official record exhibits, three sets of bench binders containing 10 copies of the exhibits must be provided to the Court seven (7) days before the Pretrial Conference, 11 one should be marked as “Chambers Copies”, and the other two as “Clerk’s Copies.” Each exhibit 12 must be separated with a label divider identifying the exhibit number. (An exhibit tag is 13 unnecessary for the bench set.) Spine labels should indicate the numbers of the exhibits that are in 14 the binders. 15 F. Before the closing arguments, counsel must confer with the deputy clerk to make 16 sure the exhibits in evidence are in good order. 17 G. Exhibit notebooks for the jury will not be permitted without prior permission from 18 the Court. Publication must be by poster blow-up, overhead projection, or such other method as is 19 allowed in the circumstances. It is permissible to highlight, circle or underscore in the 20 enlargements as long as it is clear that it was not on the original. 21 CHARGING CONFERENCE 22 As the trial progresses and the evidence is heard, the Court will fashion a comprehensive 23 set of jury instructions to cover all issues actually being tried. Prior to the close of the evidence, 24 the Court will provide a draft final charge to the parties. After a reasonable period for review, one 25 or more charging conferences will be held at which each party may object to any passage, ask for 26 modifications, or ask for additions. Any instruction request must be renewed specifically at the 27 conference or it will be deemed waived, whether or not it was requested prior to trial. If, however, 1 affirmatively re-request it at the charging conference in order to give the Court a fair opportunity 2 to correct any error. Otherwise, as stated, the request will be deemed abandoned or waived. 3 IT IS SO ORDERED. 4 || Dated: August 3, 2021 5 ne JAZQUBLINE SCOTT CORLEY 6 United States Magistrate Judge 7 8 9 10 11 12 13 15 16 17 Z 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A 1 2 BACKGROUND 3 HAVE EACH OF THE 20 PROSPECTIVE JURORS ANSWER ALOUD THE GENERAL BACKGROUND QUESTIONS ON THE SHEET THAT HAS BEEN HANDED 4 OUT. 5 1. Please state your name: 6 2. Please state the city in which you live: 7 a. How long have you lived there? 8 b. Where else have you lived in the past 5 years? 9 10 3. What is your current occupation? 11 a. How long have you been so employed? 12 b. What are your previous occupations, if any? 13 c. Have you or any member of your family been employed by a law firm? 14 4. Please give us the following information about your family: 15 a. Are you married? 16 1. If so, what is your spouse’s current occupation and by whom is your 17 spouse employed? 18 b. Do you have any children? 19 If so: 20 1. How many? 2. What ages? 21 3. What are their occupations, if any? 22 5. Are there any other adults living in your household? 23 a. If so, how are they related to you, and what is their age and occupation? 24 25 26 27