Martin v. City of San Jose ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANDY MARTIN, Case No. 19-cv-01227-EMC 8 Plaintiff, FINAL PRETRIAL CONFERENCE 9 v. ORDER 10 CITY OF SAN JOSE, et al., 11 Defendants. 12 13 14 I. TRIAL DATE & LENGTH OF TRIAL 15 The Court shall hold a hearing on Friday, December 4, 2020, at 1:00 p.m., to discuss the 16 completed jury questionnaires. The hearing shall be conducted via Zoom. 17 The jury trial shall begin on December 7, 2020. Trial shall last from 8:30 a.m. to 1:30 p.m. 18 on each day, except for Thursdays, which are dark. On all trial days counsel shall be present in the 19 Courtroom at 8:15 a.m. to discuss any matters requiring resolution prior to commencement of trial 20 at 8:30 a.m. 21 The parties estimate that the trial shall last for approximately 8-10 days. See Jt. PTC St. at 22 4. The Court will give each side eleven (11) hours to present its case. This includes their opening 23 statements, time on their direct and cross-examination, and closing arguments as well as any time 24 on voir dire of a witness. 25 Following this Court’s order on summary judgment, the following claims remain for trial: 26 (1) the § 1983 claim against Officer Ribeiro, (2) the negligence claim against the City, and (3) the 27 § 52.1 claim against the City. 1 II. WITNESSES 2 A. Plaintiff 3 Mr. Martin has identified the following individuals as witnesses he may call in his case-in- 4 chief. See Docket No. 76-1 (witness list). 5 (1) Andy Martin. 6 (2) Regina Rodriguez. 7 (3) Jovany Silva. 8 (4) Alexandre Vieira Ribeiro. 9 (5) Carl Purnell. 10 (6) Geoff Peroutka. 11 (7) Christopher Sciba. 12 (8) Steve Lagorio. 13 (9) Jeff Harwell. 14 (10) Jorge Gutierrez. 15 (11) John “Jack” Ryan (expert). 16 (12) Winthrop Smith (expert). 17 (13) Alex Barchuk (expert). 18 (14) Carol Hyland (expert). 19 (15) Robert Johnson (expert). 20 (16) Jeff Flower (expert). 21 (17) Glenn Bard (expert). 22 (18) Edward Yun (expert). 23 (19) Christopher Traver (expert). 24 (20) Meir Marmor (expert). 25 (21) Conway Lien (expert). 26 (22) Steven Woolson (expert). 27 (23) Custodian of records for the San Jose Police Department. 1 (25) Custodian of Records for Axon, Inc. 2 (26) Custodian of Records for Santa Clara Valley. 3 Mr. Martin shall trim this list. A reduced witness list shall be filed by November 16, 2020. 4 B. Defendants 5 Defendants have identified the following individuals as witnesses they may call in their 6 case-in-chief. See Docket No. 76-2 (witness list). 7 (1) Ana Solorio Escalarte. 8 (2) Ruben Bejarano. 9 (3) Domico Curry. 10 (4) Bryan Sulleza. 11 (5) Alexandre Vieira Ribeiro. 12 (6) Carl Purnell. 13 (7) Christopher Sciba. 14 (8) Jeff Harwell. 15 (9) Steve Lagorio. 16 (10) Hana Martucci. 17 (11) Custodians of records (medical records, Lyft records on the date of the incident, 18 and Santa Clara County Crime Lab for toxicology results). 19 (12) Joseph Cohen (expert). 20 (13) Jeff Flower (expert). 21 (14) Steven Woolson (expert). 22 (15) Karen Preston (expert). 23 (16) Erik Volk (expert). 24 Defendants shall trim this list. A reduced witness list shall be filed by November 16, 2020. 25 With respect to each party’s witness list, the parties shall work out a stipulation regarding 26 authenticity and business records to eliminate the need to have custodians testify. 27 1 III. EXHIBITS 2 Both parties shall trim their exhibit lists and shall, based on the Court’s comments below, 3 attempt to resolve objections. The revised exhibit lists shall be filed by November 16, 2020. 4 A. Plaintiff’s Exhibits and Defendants’ Objections 5 The Court provides the following general guidance and/or comments with respect to Mr. 6 Martin’s exhibits. 7 • Not all policies of the San Jose Police Department (“SJPD”) seem relevant. With 8 respect to relevant policies (which inform, e.g., the City’s negligence and/or Officer 9 Ribeiro’s knowledge), the objection can likely be overcome with the proper 10 foundation. 11 • Voluminous exhibits (e.g., the POST materials, medical records, lengthy video 12 footage) shall not be admitted in their entirety. Mr. Martin must identify specific 13 pages or excerpts that he intends to introduce as evidence. 14 • Video footage in and of itself is not hearsay. However, statements made in the 15 video footage may or may not be hearsay. See Knickerbocker v. United States, No. 16 1:16-cv-01811-DAD-JLT, 2020 U.S. Dist. LEXIS 51093, at *7-8 (E.D. Cal. Mar. 17 23, 2020) (stating that videos are not hearsay because they are visual depictions, 18 and not statements intended to be assertions; but acknowledging that a different 19 analysis would apply if a party was relying on a statement made captured on 20 video). For example, if the video captures statements by Officer Ribeiro, then Mr. 21 Martin may offer those statements as evidence because they are admissions of a 22 party-opponent. 23 • Expert reports are, as a general matter, hearsay. However, Mr. Martin may be able 24 to use the report to, e.g., refresh Dr. Barchuk’s recollection. See Universal Church, 25 Inc. v. Standard Constr. Co. of S.F., No. 14-cv-04568-RS, 2016 U.S. Dist. LEXIS 26 3135, at *6-7 (N.D. Cal. Jan. 8, 2016) (“Defendants move to exclude the reports 27 authored by Universal Church’s experts on the basis that they are hearsay. That 1 appropriate for such purposes as impeachment and to refresh recollection.”). 2 • To the extent there may be hearsay concerns with respect to exhibits attached to an 3 expert report, an expert can base opinions on hearsay (if an expert in the field 4 would reasonably rely upon such), but “[e]xamination of [an] expert witness cannot 5 be used as a backdoor means to present otherwise inadmissible hearsay evidence to 6 the jury.” Valiavicharska v. Celaya, No. CV 10-4847 JSC, 2012 U.S. Dist. LEXIS 7 8191, at *7-8 (N.D. Cal. Jan. 24, 2012). 8 B. Defendants’ Exhibits and Plaintiff’s Objections 9 The Court provides the following general guidance and/or comments with respect to 10 Defendants’ exhibits. 11 • Exhibits that Defendants argue are relevant to only the City’s claim for immunity 12 under California Vehicle Code § 17004.7 are not admissible. The statute does not 13 apply in the instant case. See Cal. Veh. Code § 17004.7(b)(1) (“A public agency 14 employing peace officers that adopts and promulgates a written policy on, and 15 provides regular and periodic training on an annual basis for, vehicular pursuits 16 complying with subdivisions (c) and (d) is immune from liability for civil damages 17 for personal injury to or death of any person or damage to property resulting from 18 the collision of a vehicle being operated by an actual or suspected violator of the 19 law who is being, has been, or believes he or she is being or has been, pursued in a 20 motor vehicle by a peace officer employed by the public entity.”) (emphasis 21 added). Training materials may be relevant if they are on point with the challenged 22 conduct in this case. 23 IV. MOTIONS IN LIMINE 24 A. Plaintiff’s Motion in Limine No. 1 (Docket No. 69) 25 Mr. Martin moves to exclude “any and all information not known to [Officer] Ribeiro 26 when he struck [Mr. Martin] with his car.” Mot. at 2. See generally Scott v. United States, 436 27 U.S. 128 (1978) (“[I]n evaluating alleged violations of the Fourth Amendment the Court has . . . 1 then known to him.”). 2 To the extent Mr. Martin has made a blanket request for exclusion – i.e., not identifying 3 specific evidence – the motion is denied without prejudice. The specific evidence identified by 4 Mr. Martin in his motion is addressed below. 5 1. Toxicology Reports 6 The request to exclude the toxicology reports is denied. It is true that Officer Ribeiro 7 admitted that he did not know Mr. Martin was intoxicated on the date of the incident at issue. 8 However, it is a defense theory that Mr. Martin’s intoxicated state was a contributing factor for the 9 collision. It is also reasonable for Defendants to argue at trial that Mr. Martin’s version of the 10 events is flawed because he was intoxicated. 11 2. Testimony from Security Guards 12 The Court reserves ruling on the request to exclude testimony from the security guards. 13 After the Court clarified time limits for trial, Defendants indicated that they will be reconsidering 14 whether they will offer testimony from the security guards. However, for the benefit of the 15 parties, the Court provides the following guidance. There is no dispute that the security guards did 16 not witness the collision itself; however, that does not mean that their testimony has no probative 17 value. Mr. Martin seems to have taken the position that he did not know that he was being 18 pursued by the police and that, when he did finally see the police vehicle and began to run, that 19 was only because he was afraid he would be hit. The security guards’ testimony could put into 20 question Mr. Martin’s credibility on this point – i.e., if Mr. Martin had brandished a weapon at the 21 security guards or otherwise threatened them, then that would support the defense theory that Mr. 22 Martin was knowingly fleeing from the police during the pursuit because he had engaged in 23 misconduct. Also, if Mr. Martin had brandished a weapon or otherwise made a threat to the 24 security guards, Officer Ribeiro’s testimony that Mr. Martin appeared to be reaching for a weapon 25 in his waistband could be considered more credible, even if no weapon was ultimately found. The 26 Court notes, however, that it does not intend the trial to become sidetracked on the collateral issue 27 of whether Mr. Martin actually brandished a weapon to the security guards. Nor will the Court 1 weapon. 2 3. Mr. Martin’s Criminal History 3 Mr. Martin has an extensive criminal history. Defendants have provided a chart 4 summarizing that criminal history. See Zoglin Decl., Ex. B (criminal history chart). Mr. Martin’s 5 convictions date as early as 2005 and as late as 2018. For most of the crimes, he was sentenced to 6 less than a year. Mr. Martin seeks to exclude evidence of all of his convictions.1 7 a. Crimes Involving a Dishonest Act or False Statement 8 According to Defendants, at least some of Mr. Martin’s criminal convictions are 9 admissible under Federal Rule of Evidence 609(a)(2). 10 Rule 609(a)(2) provides as follows: “for any crime regardless of the punishment, the 11 evidence must be admitted if the court can readily determine that establishing the elements of the 12 crime required proving – or the witness’s admitting – a dishonest act or false statement.” Fed. R. 13 Evid. 609(a)(2). Based on the record submitted, it appears that, on January 25, 2014, Mr. Martin 14 was convicted of the following crimes: falsely representing self as another person to a police 15 officer (a violation of California Penal Code § 148.9) and providing false information to a police 16 officer (a violation of California Vehicle Code § 31). Because these crimes require the proving of 17 a dishonest act or false statement, they are admissible. See United States v. Leyva, 659 F.2d 118, 18 122 (9th Cir. 1981) (holding that evidence that meets the criteria of Rule 609(a)(2) is always 19 admissible for impeachment purposes, such that there is no application of Rule 403). 20 b. Crimes Punishable by Imprisonment For More Than One Year 21 According to Defendants, they are entitled to introduce evidence of additional convictions 22 pursuant to Rule 609(a)(1). 23 Rule 609(a)(1) provides as follows: “for a crime that, in the convicting jurisdiction, was 24 punishable . . . by imprisonment for more than one year, the evidence: (A) must be admitted, 25 1 Defendants indicate that they also intend to introduce evidence of Mr. Martin’s arrest warrants – 26 more specifically, the arrest warrants that were in place at the time of the incident at issue. See Opp’n at 7 (arguing that Mr. Martin “was fleeing the scene [because] he had committed a crime” 27 and “there were warrants for his arrest”). The Court shall allow this specific evidence because the 1 subject to Rule 403, in a civil case . . . in which the witness is not a defendant.” Fed. R. Evid. 2 609(a)(1). However, under Rule 609(b)(1), if “more than 10 years have passed since the witness’s 3 conviction or release from confinement, whichever is later,” then “[e]vidence of the conviction is 4 admissible only if [inter alia] its probative value, supported by specific facts and circumstances, 5 substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1). 6 Defendants claim that the following crimes, for which Mr. Martin was convicted, have 7 punishments that exceed more than one year in prison: 8 (1) May 8, 20052: felony robbery. See Cal. Pen. Code § 211. 9 (2) July 2, 2006: felony vehicle theft. See Cal. Veh. Code § 10851. 10 (3) March 21, 2010: felony DUI causing injury. See id. § 23153. 11 (4) March 21, 2010: felony hit and run causing injury. See id. § 20001. 12 For purposes of this order, the Court assumes that Defendants are correct in asserting that 13 that the four crimes identified above have punishments that exceed more than one year in prison. 14 Nevertheless, the Court finds these convictions inadmissible under Rule 609(a)(1). 15 As an initial matter, the Court notes that some of these convictions (e.g., (1) and (2)) 16 should probably be evaluated under Rule 609(b)(1) – i.e., it is likely that more than ten years have 17 passed since the convictions for the crimes or Mr. Martin’s release from confinement for the 18 crimes. However, even under the less rigorous Rule 609(a)(1) standard, it is doubtful that the 19 evidence could be admitted because of Rule 403 (which is incorporated into Rule 609(a)(1)). The 20 probative value of the evidence is weak. Robbery, vehicle theft, driving under the influence, and 21 hit and run have little to do with Mr. Martin’s alleged misconduct in the instant case, namely, 22 threatening the security guards and/or brandishing a knife. Meanwhile, the danger of unfair 23 prejudice is relatively high; a jury might conclude that Mr. Martin is a serial criminal and thus 24 presented a greater danger to Officer Ribeiro or the public than what was conveyed to Officer 25 Ribeiro by dispatch. 26 In addition to the above, Defendants claim that the following crimes, for which Mr. Martin 27 1 was convicted, have punishments that exceed more than one year in prison: 2 (1) July 2, 2006: felony reckless driving while evading a peace officer. See Cal. Veh. 3 Code § 2800.2.3 4 (2) December 22, 2014: felony reckless driving while evading a peace officer. See id. 5 But here Defendants’ assertion that the punishment for a § 2800.2 violation exceeds one year is 6 incorrect. Section 2800.2(a) provides: “If a person flees or attempts to elude a pursuing police 7 officer . . . and the pursued vehicle is driven in a willful or wanton disregard for the safety of 8 persons or property, the person driving the vehicle, upon conviction, shall be punished by 9 imprisonment . . . for not less than six months nor more than one year.” Cal. Veh. Code § 10 2800.2(a). That being the case, Defendants cannot rely on Rule 609(a)(1) as a basis for 11 admissibility. 12 According to Defendants, the § 2800.2 crimes should still be admissible as habit evidence 13 under Federal Rule of Evidence 406. See Fed. R. Evid. 406 (“Evidence of a person’s habit . . . 14 may be admitted to prove that on a particular occasion the person . . . acted in accordance with the 15 habit.”). But two incidents of evading the police some eight years apart is not enough to establish 16 a habit. Even if the Court takes into consideration the additional incident where Mr. Martin 17 provided false information to the police (i.e., the incident that took place on January 25, 2014), 18 that still does not establish a habit of evading the police. 19 As a final argument, Defendants assert that, even if the Court is not inclined to admit 20 evidence of the above convictions based on Rules 609(a)(1) and/or 406, that evidence – along with 21 evidence of other convictions, including misdemeanors – should still be admitted under Rule 22 404(b). Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to 23 prove a person’s character in order to show that on a particular occasion the person acted in 24 accordance with the character”; however, the “evidence may be admissible for another purpose.” 25 Fed. R. Evid. 404(b). 26 3 Section 2800.2 is “an alternative felony/misdemeanor offense. An alternative 27 felony/misdemeanor, also known as a ‘wobbler,’ is deemed a felony unless charged as a 1 According to Defendants, the convictions are admissible under Rule 404(b) because they 2 will not be used as character evidence but rather as evidence relevant to damages. For example, 3 Defendants note that Mr. Martin is claiming wage loss as a result of Defendants’ misconduct; 4 according to Defendants, because Mr. Martin is a recidivist, that affects his ability to be employed 5 in the future (as a defense expert, Mr. Volk, will testify). As another example, Defendants point 6 out that, for at least a period of time after the incident at issue, Mr. Martin was incarcerated. 7 Defendants argue that, if Mr. Martin was incarcerated, he could not “incur costs for in-home care, 8 a wheelchair, pool therapy, medical care, [and] other items called for by plaintiff’s experts.” 9 Opp’n at 5. 10 Defendants raise fair arguments; Mr. Martin asserts, however, that having the crimes come 11 in as evidence raises the prospect of unfair prejudice under Rule 403. Accordingly, Mr. Martin 12 has asked that, if the Court is inclined to allow evidence of the crimes as probative of damages, 13 then the Court should bifurcate liability from damages so that the evidence does not infect the 14 merits of his case. Although Defendants do not object to bifurcation, see Jt. PTC St. at 5 15 (Defendants noting that, if the jury determines there is no liability, then several experts on each 16 party’s side would not need to be called), the Court shall not do so. 17 A more practical approach – one that accounts for both the probative and prejudicial value 18 of the evidence – is to allow Defendants to provide evidence as to when Mr. Martin was 19 incarcerated, more specifically at any point after the incident and for a three-year period prior to 20 the incident. Defendants, however, shall not be allowed to introduce evidence as to the nature of 21 the crimes of which he was convicted and incarcerated. 22 The one possible exception is with respect to Mr. Martin’s conviction for brandishing a 23 weapon on the date of the incident. As an initial matter, the Court shall not allow the conviction to 24 come into evidence. Defendants can introduce evidence about whether a weapon was brandished 25 without further introducing into evidence that Mr. Martin was actually convicted of such. 26 However, if Mr. Martin provides testimony that he did not brandish a weapon, then the door may 27 be opened to the conviction evidence. 1 4. Current Criminal Proceedings Against Mr. Martin 2 Apparently, there are current criminal proceedings against Mr. Martin based on an incident 3 that took place in December 2019. He has been charged with two felonies: (1) “accessory to an 4 assault with a deadly weapon (Penal Code § 32)” and (2) “reckless driving while evading a police 5 officer (Vehicle Code § 2800.2).” Opp’n at 5. Because these are only charges and not 6 convictions, the evidence is not currently admissible, if only based on Rule 403. 7 Defendants argue, however, that there is a possibility that the criminal proceedings will be 8 resolved by the time that the instant case goes to trial. This is a legitimate point. Assuming that 9 Mr. Martin was convicted of either or both crimes, the Court would likely rule consistent with the 10 above – i.e., permit Defendants to provide evidence about when Mr. Martin was incarcerated but 11 not about the specific crimes of which he was convicted. 12 B. Plaintiff’s Motion in Limine No. 2 (Docket No. 71) 13 Mr. Martin moves to exclude certain testimony from Defendants’ expert, Mr. Flower. Mr. 14 Flower is the City’s video expert. He aligned the video footage for the body-worn cameras of 15 Officer Ribeiro and Officer Purnell. 16 The bulk of Mr. Martin’s motion is moot. Defendants agree with Mr. Martin that Mr. 17 Flower should not be allowed to opine on, e.g., (1) whether Officer Ribeiro misjudged the distance 18 between his police car and Mr. Martin; (2) whether Officer Ribeiro aggressively turned his car 19 away from Mr. Martin. See Opp’n at 4. 20 However, to the extent Mr. Martin argues that Mr. Flower should not be allowed to testify 21 about whether the police car moved backwards, the motion is denied. Mr. Flower can express his 22 opinion on the matter based on his experience. Mr. Martin, of course, is free to cross-examine Mr. 23 Flower about whether (as reflected in the video footage from Officer Ribeiro’s body-worn camera) 24 the tree line was moving laterally in the side view mirror. See also Flower Decl. ¶ 4 (testifying 25 that, at his deposition, he was shown a compilation of video images that he had not seen before 26 and that, based on that viewing, there was “a very small amount of inconsistent lateral movement” 27 but there was not “any lateral movement that is consistent with the vehicle moving in reverse”; 1 not the vehicle moving in reverse”). 2 C. Plaintiff’s Motion in Limine No. 3 (Docket No. 72) 3 Mr. Martin moves to exclude certain testimony from Defendants’ expert, Dr. Cohen. Dr. 4 Cohen is a physician. According to Mr. Martin, although Dr. Cohen is qualified to describe Mr. 5 Martin’s injuries to his hip and ankle, he is not qualified to provide testimony on the causation of 6 the injuries. 7 The Court defers ruling on the motion. The Court does not have concern about Dr. 8 Cohen’s qualifications. See generally Cohen Decl. However, it is not sufficiently clear from the 9 record provided what methodology Dr. Cohen used to opine on the cause of Mr. Martin’s injuries. 10 See, e.g., Cohen Decl. ¶ 6 (testifying that he has “determined the mechanism of injury or death in 11 many hundreds of incidents involving vehicles” but not providing any specifics). The Court shall 12 permit voir dire of Dr. Cohen at trial to determine whether he should be allowed to provide 13 testimony to the jury. 14 The Court notes that, if Dr. Cohen is permitted to testify, Defendants agree that he cannot 15 testify that the collision was accidental rather than intentional. See Opp’n at 6 (agreeing with Mr. 16 Martin that Dr. Cohen “should not testify as to what Officer Ribeiro was thinking”). 17 D. Defendants’ Motion in Limine No. 1 (Docket No. 66) 18 Defendants move to limit the scope of the testimony of three of Mr. Martin’s experts, 19 namely, Mr. Ryan (police practices), Dr. Smith (injury causation), and Mr. Johnson (damages). 20 1. Mr. Ryan 21 Mr. Ryan is the police practices expert for Mr. Martin. Defendants argue that Mr. Ryan 22 should be precluded from testifying about various subject matters, each of which is addressed 23 below. 24 a. California’s Peace Officer Standards and Training (“POST”) 25 Defendants argue that Mr. Ryan does not have experience with POST and therefore is not 26 qualified to testify about whether Officer Ribeiro’s conduct complied with or was consistent with 27 POST. Mr. Martin does not, in his opposition, make any argument that Mr. Ryan should be 1 granted. This ruling, however, does not bar Mr. Ryan from testifying about police standards, 2 training, practices, and/or procedures other than POST specifically. See Smith v. City of Hemet, 3 394 F.3d 689, 703 (9th Cir. 2005) (noting that “[a] rational jury could rely upon such evidence 4 [i.e., whether the officers’ conduct comported with standards or training] in assessing whether the 5 officers’ use of force was unreasonable”). 6 b. Legal Conclusions and Legal Terminology 7 Defendants contend that Mr. Ryan should not be permitted to make legal conclusions as 8 part of his testimony. Relatedly, they argue that Mr. Ryan should not be permitted to use legal 9 terminology in providing his opinions (e.g., excessive force, unreasonable force, seize). The Court 10 agrees with Defendants in part. 11 Consistent with the weight of authority, Mr. Ryan is barred from opining that Officer 12 Ribeiro used excessive force in the instant case or that his actions were objectively unreasonable 13 in the instant case. See, e.g., Thompson v. City of Chi., 472 F.3d 444, 458 (7th Cir. 2006) (noting 14 that “[t]he jury . . . was in as good a position as the experts to judge whether the force used by the 15 officers to subdue [the plaintiff] was objectively reasonable given the circumstances in this case[;] 16 [i]ntroducing two experts to testify that [the officers] used excessive force would have induced the 17 jurors to substitute their own independent conclusions for that of the experts”); cf. Hangarter v. 18 Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (stating that, “[w]hile 19 [expert’s] testimony that Defendants deviated from industry standards supported a finding that 20 they acted in bad faith, [expert] never testified that he had reached a legal conclusion that 21 Defendants actually acted in bad faith (i.e., an ultimate issue of law)”). 22 However, as indicated above, Mr. Ryan can still provide testimony about whether Officer 23 Ribeiro’s actions comported with police practices and procedures. See, e.g., Garcia v. Cty. of 24 Riverside, No. CV 5:18-00839 SJO (ASx), 2019 U.S. Dist. LEXIS 167582, at *34-35 (C.D. Cal. 25 June 7, 2019) (stating that expert “may testify about hypothetical situations” and “whether the 26 actions of Defendants complied with applicable law enforcement procedures,” including “the 27 reasons why the actions of Defendants did not comply with applicable procedures”); Zeen v. Cty. 1 (permitting expert to testify “about police procedures or what a hypothetical reasonable officer 2 might have done”); Cooke v. City of Stockton, No. 2:14-CV-00908-KJM-KJN, 2017 U.S. Dist. 3 LEXIS 207779, at *15-16 (E.D. Cal. Dec. 18, 2017) (stating that expert “may within the scope of 4 his expertise opine as to whether defendants complied with applicable procedures on the night of 5 the incident,” and expert’s “opinions may be explored through hypothetical questioning”); Estate 6 of Creach v. Spokane Cty., No. CV-11-432-RMP, 2013 U.S. Dist. LEXIS 200049, at *11-12 (E.D. 7 Wash. May 2, 2013) (stating that expert “may testify in terms of whether Deputy Hirzel’s actions 8 comported with police practices and procedures”). 9 In addition, although the Court agrees with Defendants that Mr. Ryan should not use 10 specialized legal terms such as “excessive force” and “objectively unreasonable,” cf. M.H. v. Cty. 11 of Alameda, No. 11-cv-02868-JST, 2015 U.S. Dist. LEXIS 44, at *7-8 (N.D. Cal. Jan. 1, 2015) 12 (stating that “experts on both sides may testify as to appropriate standards of care – which go to 13 the ultimate issues of ‘deliberate indifference’ and what conduct is ‘objectively reasonable’ – so 14 long as they do not use those ‘judicially defined’ and ‘legally specialized’ terms”), he is not 15 outright barred from using general terms such as “reasonable” and “unreasonable.” Whether these 16 terms are appropriate will depend on context. Cf. United States v. Perkins, 470 F.3d 150, 158 (4th 17 Cir. 2006) (noting that “the legal meaning of some terms is not so distinctive from the colloquial 18 meaning, if a distinction exists at all, making it difficult to gauge the helpfulness, and thus 19 admissibility, of the testimony under Rule 704”). In Ramirez v. City of Gilroy, No. 17-cv-00625- 20 VKD, 2020 U.S. Dist. LEXIS 56109 (N.D. Cal. Mar. 27, 2020), Judge Demarchi provided useful 21 guidance: 22 Here, Mr. Clark (and any other expert) must avoid using specialized legal terms, such as “excessive force,” “battery,” or “negligence” in 23 testifying about his opinions in this case, so as not to suggest to the jury the conclusion they should reach on plaintiffs’ claims. Whether 24 an expert may use other words that have both lay and legal meaning, such as “reasonable” or “unreasonable,” is a more difficult question, 25 and one on which different courts have reached different conclusions. In this case, the parties’ respective experts must avoid 26 using judicially defined or legally specialized terms, and they must not testify that certain conduct was or was not unlawful or 27 unconstitutional. The Court will not absolutely prohibit use of lay how the conduct compares to relevant procedures, policies, 1 practices, experience, or norms of conduct, and not giving an opinion regarding whether the conduct does or does not meet a 2 specific legal standard. 3 Id. at *21-22 (emphasis added). 4 c. Alternatives 5 Defendants further argue that Mr. Ryan should be precluded from testifying about “other 6 options Officer Ribeiro might have had or what he should have done in retrospect, such as waiting 7 for other officers.” Mot. at 4. See generally Graham v. Connor, 490 U.S. 386, 396-97 (1989) 8 (noting that “[t]he ‘reasonableness’ of a particular use of force must be judged from the 9 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . 10 The calculus of reasonableness must embody allowance for the fact that police officers are often 11 forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly 12 evolving – about the amount of force that is necessary in a particular situation.”). The Court does 13 not agree. 14 Defendants cite in support an Eighth Circuit case, see Schultz v. Long, 44 F.3d 643, 649 15 (8th Cir. 1995) (stating that “[a]lternative measures which 20.20 hindsight reveal to be less 16 intrusive (or more prudent) . . . are simply not relevant to the reasonableness inquiry”), but Ninth 17 Circuit authority is to the contrary, reflecting that the availability of alternatives is relevant to the 18 Fourth Amendment and negligence claims. See Glenn v. Wash. Cty., 673 F.3d 864, 876 (9th Cir. 19 2011) (“consider[ing] whether there were less intrusive means of force that might have been used 20 before officers resorted to the beanbag shotgun”; although “[o]fficers need not avail themselves of 21 the least intrusive means of responding to an exigent situation,” they are ‘required to consider 22 [w]hat other tactics if any were available, and if there were clear, reasonable and less intrusive 23 alternatives to the force employed, that militate[s] against finding [the] use of force reasonable”) 24 (internal quotation marks omitted); Smith, 394 F.3d at 703 (stating that “an additional factor that 25 we may consider in our Graham analysis is the availability of alternative methods of capturing or 26 subduing a suspect.”). 27 d. Reversing or Backing Up 1 unreasonable for Officer Ribeiro to back up over Mr. Martin after he had already run Mr. Martin 2 over. The Court shall allow Mr. Ryan to provide limited testimony as to what are standard police 3 practices when a police officer hits and runs over a person with a police vehicle. Beyond this 4 specific testimony, the Court is not convinced that Mr. Ryan has specialized expertise that would 5 be helpful to the jury (with respect to the issue of backing up). 6 2. Dr. Smith 7 Dr. Smith has a PhD in biomechanical engineering. Defendants argue that, although Dr. 8 Smith is qualified to testify about “certain aspects of the [collision], such as the sequence of 9 events,” he is not qualified to provide testimony on “medical diagnoses or the medical 10 consequences of the collision.” Mot. at 5. See, e.g., Zoglin Decl., Ex. D (Smith Depo. at 54) 11 (testifying “people get run over by vehicles all the time and they [just] have pelvic fractures or a 12 fracture to the leg”; also testifying that “[p]eople don’t get fractures to the pelvis from a 5-mile-per 13 hour impact with a vehicle”). 14 The Court agrees that Dr. Smith cannot provide medical diagnoses or express medical 15 opinions but this is largely an uncontested point. Where the parties disagree is with respect to 16 whether Dr. Smith can testify about injury causation. To the extent Defendants suggest that Dr. 17 Smith cannot provide any testimony related to injury causation, the Court does not agree. Most 18 courts are of the view that injury causation is not the sole province of medical experts. See, e.g., 19 Contreras v. Brown, No. CV-17-08217-PHX-JAT, 2018 U.S. Dist. LEXIS 222209, at *9 (D. Ariz. 20 Dec. 4, 2018) (stating that “Manning would exceed the scope his expertise as a biomechanical 21 engineer by testifying to the medical causation of Plaintiffs’ specific injuries, rather than the 22 general types of injuries that may be caused by forces generated in a crash”); Morgan v. Girgis, 23 No. 07 Civ. 1960 (WCC), 2008 U.S. Dist. LEXIS 39780, at *14 (S.D.N.Y. May 16, 2008) (stating 24 that “‘biomechanics are qualified to determine what injury causation forces are in general and can 25 tell how a hypothetical person’s body will respond to those forces, but are not qualified to render 26 medical opinions regarding the precise cause of a specific injury’”). And it appears that Dr. Smith 27 has sufficient training and experience to give this type of testimony. 1 Daubert concerns regarding his methodology. The Court notes, however, that Dr. Smith’s 2 opinions are backed by more specific evidence/materials than Dr. Cohen’s. 3 3. Mr. Johnson 4 Mr. Johnson, an economist, is one of Mr. Martin’s damages experts. Defendants express 5 concern that Mr. Johnson may offer legal opinions to the jury because, at his deposition, he made 6 references to jury instructions. The motion to exclude is moot. Mr. Martin agrees that Mr. Martin 7 cannot provide legal opinions and that his testimony will not incorporate jury instructions. 8 E. Defendants’ Motion in Limine No. 2 (Docket No. 66-2) 9 Defendants move to exclude or limit the testimony “(1) of non-retained experts and (2) by 10 Plaintiff regarding causes of mental health or other medical issues that he might attribute to the 11 incident.” Mot. at 1. 12 Regarding nonretained experts, Defendants explain that Mr. Martin has identified three 13 physicians (Dr. Traver, Dr. Marmor, and Dr. Lien) who treated him immediately after the incident. 14 Defendants maintain that the doctors my testify only about the injuries they observed and the treat 15 they provided, not about, e.g., “the mechanism of Plaintiff’s injuries, how the accident occurred 16 based on the injuries suffered, their opinions regarding the prospects of recovery, their opinions 17 regarding future treatment that might be needed, or any other opinion that would be allowed of an 18 expert witness.” Mot. at 2. In response, Mr. Martin agrees. See Opp’n at 2 (stating that he “does 19 not intend to offer their testimony for any reason but regarding the injuries they observed and the 20 treatment they provided”). Accordingly, the motion to exclude is moot. 21 As for testimony by Mr. Martin, Defendants assert that he can testify about his experiences 22 with respect to his mental or physical conditions but not about “to what extent the incident caused 23 or exacerbated his mental or physical conditions because those opinions are properly reserved for 24 expert testimony.” Mot. at 2. Here, again, Mr. Martin agrees, and thus the motion to exclude is 25 moot. 26 F. Defendants’ Motion in Limine No. 3 (Docket No. 66-4) 27 Defendants move to exclude evidence regarding “healthcare providers that were not 1 Mot. at 1. 2 The motion is granted in part and denied in part. As an initial matter, the Court notes that 3 the parties agree that Ms. Rodriguez – Mr. Martin’s girlfriend – may testify. She will not be 4 permitted to provide medical-related testimony; however, she can provide testimony about what 5 she observed with respect to Mr. Martin and the assistance she gave to him. 6 As for other healthcare providers, Mr. Martin confirmed that he will not be relying on any 7 physical therapist or mental health provider at trial. 8 To the extent Mr. Martin has damages experts who opine about future medical expenses 9 for physical therapy or mental health treatment, that testimony is permitted. Simply because Mr. 10 Martin did not get treatment for such in the past does not foreclose the possibility that he will need 11 treatment in the future. (The expert testimony will not rely on such past treatment.) Defendants, 12 of course, are free to cross-examine on the issue. 13 G. Defendants’ Motion in Limine No. 4 (Docket No. 66-6) 14 Defendants move to exclude evidence related to other use-of-force cases as irrelevant and 15 unfairly prejudicial. See Fed. R. Evid. 402-03. Mr. Martin opposes, indicating that “he may wish 16 to refer to other use of force cases for illustrative purposes at closing or with a witness, or at voir[] 17 dire to probe the jurors familiarity with police brutality.” Opp’n at 2. 18 The Court denies the motion without prejudice. At the hearing, Mr. Martin clarified that 19 he would not be introducing into evidence other use-of-force cases; rather, he might make a 20 distinction or a comparison as a part of attorney argument. The Court shall give Mr. Martin some 21 leeway here but forewarns Mr. Martin that he does not have free rein here. For example, if Mr. 22 Martin makes a reference to a specific case to try to send a message to the jury, that would be 23 unfairly prejudicial in violation of Rule 403. In such a circumstance, the Court would expressly 24 voice to the jury its strong disapproval of Mr. Martin’s conduct. 25 H. Defendants’ Motion in Limine No. 5 (Docket No. 66-8) 26 Defendants move to exclude “reference to (1) any Independent Police Auditor review and 27 (2) the San Jose Police Department’s internal investigation that resulted in discipline of Officer 1 Independent Police Auditor (“IPA”), which interviewed [Mr. Martin]. The San Jose Police 2 Department (Sgt. Sciba and Lt. Lagorio) [also] investigated the [collision] and the Department 3 imposed discipline on Officer Ribeiro.” Mot. at 1. 4 Defendants argue that evidence of the auditor review and internal investigation should both 5 be excluded under Maddox v. Los Angeles, 792 F.2d 1408 (9th Cir. 1986). There, the district court 6 had excluded evidence of an Internal Affairs investigation and police disciplinary proceedings, 7 and the Ninth Circuit upheld that decision on appeal. The Ninth Circuit noted that the evidence 8 was properly excluded with respect to the defendant city because the evidence reflected “remedial 9 measures taken after the incident” and thus was excludable under Rule 403 and/or Rule 407. Id. at 10 1417; see also Fed. R. Evid. 407 (providing that, “when measures are taken that would have made 11 an earlier injury or harm less likely to occur, evidence of the subsequent measures is not 12 admissible to prove [e.g.] negligence [or] culpable conduct . . . [b]ut the court may admit this 13 evidence for another purpose, such as impeachment”). The Ninth Circuit further held that the 14 same evidence was properly excluded as to the individual officer because (1) the evidence 15 “arguably had little probative value” (there was already “substantial evidence before the jury” that 16 the officer had violated the city policy) and (2) the “prejudicial effect of [the] evidence was also 17 arguably great” (the jury could have “inferred that [the officer] was guilty of wrongdoing merely 18 because the Police Department conducted disciplinary proceedings” or the jury could have “given 19 unfair or undue weight to [the] evidence”). Maddox, 792 F.2d at 1417. 20 In response, Mr. Martin states that he does not intend to introduce “the actual conclusions 21 that [Officer Ribeiro] was negligent and disciplined.” Opp’n at 2. According to Mr. Martin, he 22 simply wants to rely on the evidence that was collected as part of the investigations – e.g., 23 photographs and diagrams of the scene. 24 At the hearing, Defendants conceded that this kind of evidence (photographs, diagrams, 25 etc.) could be admitted, so long as Mr. Martin laid the proper foundation. See Fed. R. Evid. 26 803(8) (providing for an exception to the hearsay rule for public records – i.e., a record or 27 statement of a public office that sets out the office’s activities and, e.g., a matter observed while 1 addition, statements of either party contained in a report are likely admissible as admissions of a 2 party-opponent. 3 Defendants expressed concern that providing the context for this evidence – that it was 4 gathered as part of an investigation – might be prejudicial as the jury would know that there was 5 an investigation but not what the results of that investigation were. As a practical matter, 6 however, giving the jury the context for the evidence is unavoidable. More important, any 7 prejudice is capable of being cured by giving the jury an instruction that it is not to speculate about 8 the conclusions of any investigation. If, at trial, Defendants believe the development of the 9 evidence is prejudicial, then they may object or ask for the reports to be admitted into evidence. 10 The Court will judge admissibility based on, inter alia, Rule 803(8). Defendants are forewarned 11 that the Court is skeptical of Defendants’ position that only parts of the reports (e.g., just the 12 conclusions) can be admitted into evidence as a cure. If reports are admitted, they will be 13 admitted in whole. 14 I. Defendants’ Motion in Limine No. 6 (Docket No. 66-10) 15 Defendants move the Court to exclude (1) evidence that the officers did not ever locate a 16 firearm or knife and (2) evidence that an officer (not Officer Ribeiro) falsely told Mr. Martin’s 17 cousin that Mr. Martin admitted he had a weapon or that a weapon had been found. According to 18 Defendants, this evidence is irrelevant and unfairly prejudicial. 19 As to the first piece of evidence, the Court finds that it is relevant. Mr. Martin claims that 20 he did not have a weapon on the night of the incident at issue. Because no weapon was located, a 21 jury could find Mr. Martin credible on this point and therefore it might question Officer Ribeiro’s 22 credibility – e.g., that the officer saw Mr. Martin reaching for his waistband during the pursuit, 23 suggesting that Mr. Martin was reaching for a weapon. The Court also holds that the danger of 24 unfair prejudice does not substantially outweigh the probative value of this evidence. 25 However, for the second piece of evidence, it has at best marginal probative value which is 26 substantially outweighed by the danger of unfair prejudice. The Court therefore shall not admit 27 the evidence unless the door is opened, e.g., for impeachment. This ruling does not bar Mr. 1 J. Defendants’ Motion in Limine No. 7 (Docket No. 66-12) 2 In this motion in limine, Defendants make two requests. Defendants first move the Court 3 to preclude Mr. Martin from (1) releasing the body-worn camera video footage to media outlets or 4 third parties until after the jury renders its verdict or (2) pointing the media or third parties to the 5 footage (as it is publicly available on ECF) until after the verdict. Defendants have concern that, 6 without an order, the jury pool could be tainted. Second, Defendants ask the Court to preclude the 7 jury from viewing the video footage that shows the “aftermath of the incident” or, in the 8 alternative, that such footage be played only a single time. Mot. at 2. According to Defendants, it 9 is proper to exclude the aftermath in its entirety because the issues for trial are whether there was a 10 seizure and whether Officer Ribeiro acted reasonably. Alternatively, Defendants argue that, if the 11 aftermath is relevant to damages, playing the footage “multiple times[] would serve solely to 12 inflame the jury.” Mot. at 2. 13 The motion is denied. Defendants are essentially asking for a kind of gag order. A gag 14 order is considered a prior restraint on speech and, as such, is permissible only if “(1) the activity 15 restrained poses either a clear and present danger or a serious and imminent threat to a protected 16 competing interest; (2) the order is narrowly drawn; and (3) less restrictive alternatives are not 17 available.” Levine v. United States Dist. Court for Cent. Dist., 764 F.2d 590, 595 (9th Cir. 1985). 18 Given this rigorous standard, Defendants’ request lacks merit. Defendants’ concerns can be 19 addressed in other ways. For example, during voir dire, the Court can vet potential jurors to see if 20 they have knowledge of the case. During jury instructions, the Court shall also direct the jurors 21 that they are not to read articles or watch news about the case, etc. See, e.g., 9th Cir. Model Civil 22 Jury Instructions Nos. 1.15-1.16. 23 As for Defendants’ second request, it is denied. The request is denied to the extent 24 Defendants seek to bar Plaintiffs from showing the post-incident video footage at all. As Plaintiffs 25 point out, this footage is relevant because it may be used to attack Officer Ribeiro’s credibility – 26 e.g., when he claimed to Mr. Martin that he did not hit Mr. Martin. The video is also relevant to 27 Mr. Martin’s pain and suffering. To the extent Defendants ask for the post-incident video footage 1 not preclude Defendants from raising an objection should, e.g., Mr. Martin repeatedly play the 2 footage such that there are Rule 403 concerns. 3 K. Defendants’ Motion in Limine No. 8 (Docket No. 67) 4 Defendants moves to exclude witnesses, other than parties or party representatives, from 5 the courtroom during trial. Mr. Martin objects only to the extent that expert witnesses should be 6 permitted. The Court shall allow expert witnesses to be in the courtroom during trial. Mr. 7 Martin’s treating physicians, for these purposes, are not considered expert witnesses. 8 V. JURY INSTRUCTIONS 9 The Court will address the jury instructions in a separate order. The Court intends to file 10 proposed jury instructions and give the parties an opportunity to raise objections. 11 At the hearing, the Court asked the parties to consider whether there could be a single set 12 of instructions for the § 1983 claim and the § 52.1 claim, notwithstanding the fact that the former 13 claim is asserted against Officer Ribeiro and the latter against the City. The parties shall meet and 14 confer and provide a joint filing on this issue by November 16, 2020. 15 VI. JURY VERDICT FORM 16 The Court will fashion an appropriate general verdict form. 17 VII. JURY VOIR DIRE 18 The Court will address the jury questionnaire in a separate order. The Court intends to file 19 the proposed questionnaire and give the parties an opportunity to raise objections. 20 21 IT IS SO ORDERED. 22 23 Dated: November 11, 2020 24 25 ______________________________________ EDWARD M. CHEN 26 United States District Judge 27