NOONAN, Circuit Judge:
Yvon Wagner, as the personal representative of the estate of her brother, Eric Vogel, appeals the judgment of the district court in favor of the defendants, County of Maricopa and Joseph Arpaio. We reverse the judgment and remand for a new trial.
Eric Vogel was born on December 21, 1964. By the age of six, he was showing signs of potential illness. His parents withdrew him from school when he was in the second grade, and he was thereafter home-schooled until he graduated from high school. He attended a community college for two semesters and part of a semester at Arizona State University. Thereafter, he simply lived at home.
Living at home, without further formal education, Vogel had no gainful employment and lived a remarkably restricted life. The windows of his home itself were covered with blankets and tape so that no one could see in. After his father's death or departure, he lived alone with his mother. He left the home no more than two or three times to attend the funerals of relatives. In October 2001, when Vogel was 36, his sister, Yvon Wagner, visited the home and found him to be delusional, imagining that a snake was around his neck.
On the morning of November 12, 2001, for no apparent reason, Vogel left his home. Police responded to a report of a burglar in the neighborhood and spotted Vogel as a possible suspect. The first officer on the scene struggled to get control of him while Vogel shouted, "Kill me." When a second officer arrived, Vogel stated that he, Vogel, must see the president. The police said they would accommodate him. He calmed down and they drove him to the Phoenix jail.
In Arizona, common jails are kept by the sheriff of the county. Ariz. Rev. Stat. § 31-101. Joseph Arpaio, as the sheriff of Maricopa County, kept the jail to which Vogel was brought.
He was put in an isolation cell with a huge window opening the cell to the view of the jailers and to inmates. The next morning, November 13, Vogel was assessed by a psychological counselor as disoriented, paranoid, and psychotic. He told her that he was at the World Trade Center getting messages from satellites. She obtained an order for his transfer to the inpatient psychiatric unit at the jail.
That afternoon, Vogel was informed that he must "dress-out." In the argot of the jail, "to dress-out" was to change from one's civilian clothes to prison garb approved by Sheriff Arpaio. The prison outfit included pink underwear. Vogel declined to change.
The "dress-out" prison officer summoned assistance—four other officers, each to hold an arm or a leg while Vogel's clothes were changed. He was placed on the ground, stripped of all his clothes, and forced into the jail ensemble including the pink underwear. As the process went on, he shouted that he was being raped. The officers were aware that he was being transferred to the Psychiatric Unit. At the end of the "dress-out" Vogel was wheeled there in "a restraint chair."
Vogel received treatment for a week and was then bailed out by his mother. On December 6, 2001, he was in his mother's car when she had a minor traffic accident. He was told that there was a warrant for his arrest for spitting on an officer during the dress-out, so he might be returned to jail. Hearing that the police were coming, he ran four or five miles from the car. He died the next day. The cause, according to the Maricopa County Medical Examiner, was acute cardiac arrhythmia.
December 6, 2002, Vogel's mother as representative of his estate began this action in Arizona Superior Court. It was removed by the defendants to the federal district court, which eventually returned the case to the state court. The plaintiff amended to assert a claim against the defendants for violation of 42 U.S.C. § 1983 by subjecting Vogel to an unreasonable search and seizure and denying due process and the equal protection of the laws. A claim was also asserted under the Americans with Disability Act, 42 U.S.C. § 12131, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794, as well as several claims under Arizona law. The case was transferred back to the federal district court.
In limine, the district court ruled that Vogel's mother and sister could not testify to what he told them about events at the jail. The court also ruled that counsel could not refer to "pink underwear" unless he could show that the record contained "credible evidence" that Vogel was aware of the color of the underwear. The court also precluded the testimony of the plaintiff's expert Dr. Spitz that Vogel's death was in part caused by the "dress-out." The court also limited the testimony of Dr. Esplin.
Before trial began, Vogel's mother died and his sister Yvon Wagner replaced her as the representative of the estate.
At the close of the trial, the court denied plaintiff's counsel the opportunity to make a rebuttal.
We review evidentiary rulings for abuse of discretion and reverse if the exercise of discretion is both erroneous and prejudicial. As Judge Smith points out, it is not entirely clear whether construction of a hearsay rule is a matter of discretion or a legal issue subject to de novo review. Compare United States v. Stinson, 647 F.3d 1196, 1210-11 (9th Cir. 2011), with United States v. Ortega, 203 F.3d 675, 682 (9th Cir.2000). We need not resolve the ambiguity here because our conclusions would be the same under either standard. We begin with the ruling limiting the testimony of Yvon Wagner.
Wagner in her deposition stated:
In response to the motion in limine, Wagner made the same argument she makes now. She argued that her statements were
Federal Rule of Evidence 803(3) excepts from the hearsay rule "statement[s] of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed[.]"
Indisputably, Wagner could have testified at trial about the impact the jail incident had on Vogel, how his mood was following the incident, how disturbed he seemed, and even what he thought happened to him during the incident, all without putting inadmissible hearsay before the jury. None of this testimony would have been put forth in order to establish the truth of what he had said. Wagner proposed to testify about how extremely delusional Vogel was following the incident, and more importantly, the emotional impact the incident had on him, including how humiliated he now felt by the pink underwear. She was not asserting the truth of anything that Vogel said had happened to him in jail.
Her testimony was admissible not to prove "the fact remembered or believed" but the "mental feeling" of Vogel. We have, as our dissenting colleague points out, stated that the limiting language of Rule 803(3) bars "`statements as to why [the declarant] held the particular state of
Here, Vogel's statements to his sister were offered to establish his state of mind, not that he was raped—which was undisputedly false—or that he went through the dress-out procedure—which was undisputedly true. Moreover, they were offered to show his state of mind at the time of the conversation, thus satisfying any contemporaneity requirement. See United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir. 1980), overruled on other grounds by United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc). Exclusion of this evidence was erroneous and fatally prejudicial.
The defense argument that Wagner lacked personal knowledge is mistaken. She had personal knowledge of how Vogel had been impacted by the incident. She testified as a percipient of what she had observed.
The court curtailed Yvon Wagner's testimony further by not permitting her to testify to Vogel's conversation with her where he gave his sense of humiliation at being forced to wear pink underwear or his sense of having been subjected to a rape. The court banned any testimony mentioning "rape" or "gang rape" unless counsel showed that the terms were not "unduly prejudicial." As already noted, the court excluded reference to the color of the clothes put on Vogel unless there was credible evidence that "Vogel was aware of the color of the jail-issued underwear."
The rulings as to "rape" and "gang rape" misconceived any testimony Wagner would have offered. She would have used the words to show her brother's present state of mind, not his past experience.
As to testimony of Vogel's perception of the color, Wagner's testimony was to the current state of her brother's mind when he spoke to her. His mind was focused on the implications of being dressed in pink. That he had been dressed in pink was not a delusion. But what was essential to the plaintiff's case was Wagner's testimony that the shock and humiliation of the "dress-out" in pink was preying on his mind. The court's suppression of any reference to pink underwear was an abuse of discretion. The ruling delivered a second blow to the plaintiff's case.
When a color of such symbolic significance is selected for jail underwear, it is difficult to believe that the choice of color was random. The County offers no penological reason, indeed no explanation whatsoever for its jail's odd choice. Given the cultural context, it is a fair inference that the color is chosen to symbolize a loss of masculine identity and power, to stigmatize the male prisoners as feminine.
That Vogel was delusional does not mean that he was incapable of seeing. If you pricked him, he bled. Just as his eyes saw the pink, so his mind made the association of the color. So at least a jury could infer from the impact of the dress-out on Vogel apparent from his conversation with his sister.
The district court held that he failed to meet the qualifications for an expert set by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). His testimony was excluded entirely.
The defense does not deny the foundation of Spitz's opinion. Its Reply Brief states: "No one disputes the general proposition that persons with severe schizophrenia have an increased incidence of the kind of arrhythmia that killed Vogel. Everyone agrees that Vogel's underlying mental illness was the factor that induced the cardiac arrhythmia." The defendants deny that anyone could determine what caused the particular increase in the arrhythmia that killed Vogel.
The purpose of expert testimony is to "assist the trier of fact to understand the evidence or to determine a fact in issue" by providing opinions on "scientific, technical, or other specialized knowledge[.]" Fed.R.Evid. 702 (2008). To guard against the risk that jurors will accept an expert's testimony simply because he or she is an expert, a district court must ensure that all expert testimony is "not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. 2786 (1993); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (holding that Daubert applies to "all expert testimony"). The test for reliability is flexible and depends on the discipline involved. See Kumho, 526 U.S. at 150, 119 S.Ct. 1167. "[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id. at 142, 119 S.Ct. 1167.
The district court's decision to exclude Dr. Spitz's opinion that the dress-out procedure was "probably" the cause of Vogel's death was a reasonable application of Daubert. The opinion was not supported by the typical Daubert factors—testing, peer review and general acceptance. Dr. Spitz did not explain, for example, how the generally accepted facts (1) that the incidence of cardiac arrhythmia is disproportionately high among schizophrenics and (2) that stress can render the condition fatal allowed him to determine the specific event that triggered Vogel's death. Nor did he explain how having seen four or five cases of fatal cardiac arrhythmia in schizophrenics helped him reach his conclusion.
Generally accepted facts and experience might lead a medical expert to reliably opine (as Dr. Ehrlich did) that the dress-out procedure could have been a triggering stressor. Although Dr. Spitz's and Dr. Ehrlich's opinions are similar in that respect, Dr. Spitz went farther and offered an opinion as to an actual cause. It is this leap that dispositively distinguishes the two experts.
The plaintiff also offered the testimony of Phillip Esplin, a Phoenix psychologist. Esplin had originally been proposed as a witness by the County and had prepared a
In both of its rulings the district court pointed out the dependence of the two proposed experts on Wagner's reported conversations with her brother. As the district court excluded Wagner's testimony as to the conversations, so it found that the experts could not base their opinions upon Wagner's accounts.
As we have already indicated, the exclusion of testimony showing Wagner's state of mind was both error and prejudicial to the plaintiff. It was equally error and prejudicial to exclude the experts' opinions based on that testimony.
Argument to the Jury. The district court abruptly eliminated the plaintiff's opportunity for rebuttal argument. No good reason was given for this disappointment of the plaintiff's legitimate expectation. If the court intends to restrict rebuttal, the litigants should be so advised prior to the argument.
Counsel for the county engaged in argument suggesting that the jury consider comparative fault. Comparative fault is not a defense here.
Issues on remand. The parties have not raised the question of whether the dress-out procedure is in every case a violation of due process when applied to persons convicted of no crime. Unpleasant physical measures—e.g., a strip search—may be necessary to secure the safety of an institution even though they impinge on the dignity of innocent inmates. Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir.2010) (en banc). As the Supreme Court has explained:
Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (citations omitted). Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification.
It appears to us that this question is still open for exploration at trial on remand. Alternatively, the plaintiff may prevail on the narrower proposition that to apply this procedure automatically to a man known by his jailors to be in need of psychiatric treatment was itself a violation of due process. Because of the evidentiary rulings of the trial court neither issue was presented to the jury.
REVERSED and REMANDED.
N.R. SMITH, Circuit Judge, dissenting:
In its opinion, the majority fails to correctly construe the hearsay rule and fails to give the proper deference to the district court's other evidentiary rulings. I must therefore dissent because:
1. Assuming (but not deciding) that a de novo standard of review applies when determining whether a statement is hearsay, the majority fails to properly construe the hearsay rule. Under the hearsay rule, statements asserting a declarant's beliefs are hearsay, if offered to prove the declarant's belief or offered for a purpose that
2. The majority fails to apply the "substantially deferential" abuse of discretion test, recently elucidated by our en banc panel in United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc), for the remaining evidentiary issues appealed here. Though an appellate jurist may have ruled differently on these issues, "we may not simply substitute our view for that of the district court, but rather must give the district court's findings deference." Id.
This circuit's case law is not entirely clear regarding whether we review de novo a district court's decision that a statement is or is not hearsay. Compare United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir.2011) ("We review a district court's evidentiary rulings for abuse of discretion."), and United States v. Tran, 568 F.3d 1156, 1162 (9th Cir.2009) (applying an abuse of discretion standard in determining whether a statement is hearsay under Rule 801), with Mahone v. Lehman, 347 F.3d 1170, 1173-74 (9th Cir.2003) ("We review the district court's construction of the hearsay rule de novo. . . ." (quoting Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 (9th Cir.2002))), United States v. Collicott, 92 F.3d 973, 978-82 (9th Cir. 1996) (holding that the district court erred, because the statements at issue were hearsay and not admissible under Rule 801(d)(1)(B), never mentioning whether the district court abused its discretion, but rather seems to have reviewed the hearsay determination de novo), and United States v. Warren, 25 F.3d 890, 894-95 (9th Cir. 1994) (held that the statements at issue were admissible under Rule 801(d)(2)(A) because they were not hearsay, with no mention of an abuse of discretion).
The Second Circuit and Sixth Circuit have held that a district court's determination whether a statement is hearsay is reviewed de novo. United States. v. Ferguson, 653 F.3d 61, 86 (2d Cir.2011); Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 378-381 (6th Cir.2009). But see Trepel v. Roadway Exp., Inc., 194 F.3d 708, 716-17 (6th Cir.1999) ("Therefore, in disregard of our heretofore well-settled precedent that hearsay evidentiary rulings are reviewed de novo, we shall review the district court's ruling for an abuse of discretion." (citation omitted)).
We review the district court's remaining evidentiary rulings for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). We do not reverse evidentiary rulings unless the rulings are "manifestly erroneous and prejudicial." Orr, 285 F.3d at 773. "This includes the exclusion of evidence under a hearsay rule." Stinson, 647 F.3d at 1210. We also review the district court's handling of closing arguments for an abuse of discretion. United States v. Lazarenko, 564 F.3d 1026, 1043 (9th Cir.2009).
Our circuit employs a "significantly deferential" two-step test to determine whether a district court abused its discretion. Hinkson, 585 F.3d at 1262. The first step "is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested." Id. If so, the second step "is to determine whether the trial court's application of the correct legal standard was (1) `illogical,' (2) `implausible,' or (3) without `support in inferences that may be drawn from the facts in the record.'" Id. (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).
The majority first concludes that the district court erred by excluding testimony from Vogel's sister, Yvon Wagner, regarding statements made by Vogel (who was deceased before trial).
The Estate argues that Wagner's testimony was not hearsay, because it was not offered to prove the details of the dress-out procedure (i.e., that Vogel was actually raped). Instead, the Estate argues that Wagner's testimony was offered to show Vogel's state of mind following the dress-out procedure and the lasting impact the event had on Vogel following his release. The majority asserts that Wagner "was not asserting the truth of anything that Vogel said had happened to him in jail." Maj. Op. at 980. I disagree with both. Wagner's testimony was offered to prove the truth of the matter asserted—i.e., that Vogel believed the events he described happened. The district court did not incorrectly construe or apply the hearsay rule.
Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). The majority agrees that, if Wagner's testimony—including Vogel's statements that (1) he was forcibly undressed by detention officers, (2) he was dressed in pink underwear and slippers, (3) the officers "manhandled" him on the floor of his jail cell, and (4) he called out to other inmates for help—were offered for the truth of the matter asserted, it would be hearsay. Even if this information were consistent with other evidence in this case, it could not be proven by Wagner using hearsay evidence.
However, the Estate and the majority assert that Wagner's testimony is not offered to prove the "truth of anything that Vogel said had happened to him in jail." Maj. Op. at 980. That assertion may be true, but it is not focused on Wagner's statements. For example, Wagner testified that Vogel (1) "felt he was being raped," (2) "felt one of the officers attempted to put his penis in his mouth," (3) "believed he was being raped," and (4) "believed the pink underwear was used to
The Estate argues that, even if Wagner's testimony were hearsay, it was admissible as evidence under the state of mind exception in Federal Rule of Evidence 803(3). The majority agrees. However, the district court disagreed and, because this is a discretionary decision, we must afford the district court's decision substantial deference. Here, the district court's determination that Wagner's testimony regarding Vogel's post-release statements did not fall under Rule 803(3)'s state of mind exception was not illogical, implausible, or without support in inferences that may be drawn from the facts in the record. The statements (1) were statements of memory or belief made at least one week after the events at issue; and (2) were offered not simply to demonstrate Vogel's present mental condition but his past mental condition (i.e., that he was agitated), and also to explain why he was agitated (i.e., that he believed he was being raped). Therefore, although we may have decided this issue differently, the district court did not abuse its discretion.
Rule 803(3) creates an exception to the hearsay rule for "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.. . . ." Fed.R.Evid. 803(3) (2010) (emphasis added). Vogel's statements do not meet Rule 803(3)'s foundational requirements of "contemporaneousness, [lack of] chance for reflection, and relevance." United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir.1980), overruled on other grounds by United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc). Vogel explained the dress out procedure to his family following his release from jail, which was at least seven days after the procedure took place. These were "statement[s] of memory," which are expressly prohibited under Rule 803(3). The Rules of Evidence exclude statements of memory, because "[t]he more time that elapses between the declaration and the period about which the declarant is commenting, the less reliable is his statement.. . . The state of mind declaration also has probative value, because the declarant
Additionally, Wagner's statements were offered to show not only that Vogel was agitated during the dress-out procedure, but also why he was agitated. Such use of Wagner's statements is not permitted under Rule 803(3), as interpreted by our circuit. We stated in United States v. Emmert that "the state-of-mind exception does not permit the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind." 829 F.2d 805, 810 (9th Cir.1987) (emphasis added) (quoting United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.1980)); see also id. ("[Rule 803(3)] . . . narrowly limit[s] admissible statements to declarations of condition—`I'm scared'—and not belief—`I'm scared because [someone] threatened me.'" (emphasis altered) (internal quotation marks omitted)). We reaffirmed the validity of Emmert in United States v. Fontenot by holding that hearsay statements did not fall under the exception in Rule 803(3), because the statements related why the declarant held the particular state of mind. United States v. Fontenot, 14 F.3d 1364, 1371 (9th Cir.1994). The Fifth Circuit and Tenth Circuit also do not allow statements that identify why the declarant has the particular state of mind. See, e.g., United States v. Liu, 960 F.2d 449, 452 (5th Cir. 1992) (holding that "[e]vidence of . . . fear was admitted," but "[p]roperly excluded were the alleged reasons for that fear" (citing Cohen, 631 F.2d at 1225)); United States v. Ledford, 443 F.3d 702, 709-10 (10th Cir.2005) ("The phrase `because the defendant threatened me' is expressly outside the state-of-mind exception because the explanation for the fear expresses a belief different from the state of mind of being afraid.").
The majority contends that we made it clear in Emmert "that the bar applies only when the statements are offered to prove the truth of the facts underlying the memory or belief." Maj. Op. at 981. However, in Emmert and Fontenot, we did not indicate that our decisions hinged on the declarant offering the reasons for the belief in order to prove the events believed. Rather, our decisions identified the reason for the exclusion to be that the "testimony would have fallen within the `belief category and would not have been limited to [the declarant's] current state of mind." Emmert, 829 F.2d at 810; see also Fontenot, 14 F.3d at 1371 (noting that "the statements would have demonstrated that [Fontenot] believed his and Cathy Fontenot's lives were in danger" (alterations in original)).
Here, Wagner intended to testify that Vogel was agitated, because he believed he was being raped and the officers were dressing him in pink underwear for a sex party. This testimony was central to the Estate's theory of causation that Vogel's traumatic experience in jail caused his fatal arrhythmia several weeks later. For these reasons, and in light of our case law,
The majority also determines that the district court abused its discretion in concluding that Wagner lacked personal knowledge about Vogel's mental condition during the jailhouse dress-out procedure. However, the majority again fails to give any deference to the district court's decision. Federal Rule of Evidence 602 provides that a "witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony." (emphasis added). The majority claims Wagner had adequate foundation, because she had personal knowledge of her conversation with Vogel and perceived his emotions. The majority claims Vogel's statements went to establish "his state of mind at the time of the conversation. . . ." Maj. Op. at 981. If Wagner's testimony were only offered to prove Vogel's temperament during his conversation with Wagner, the majority would be correct.
However, Wagner intended to offer various opinions regarding Vogel's state of mind while in jail and why he reacted the way he did during the dress-out procedure. For example, Wagner, testified that (1) Vogel "believed he was being raped," (2) Vogel "believed the pink underwear was used to put him in [a] vulnerable position," (3) Vogel hid under his bed to protect himself because he was "paranoid" and "felt he was in extreme harm's way," and (4) "this was very, I'm sure, frightening for him." The Estate's entire theory of liability turns on the purportedly indelible trauma Vogel endured during his stay at the county jail. Thus, there is no doubt that Wagner offered this testimony to prove what Vogel felt and believed while he was in jail—not how he felt as he described the jailhouse incident a week later. To be sure, the County objected to Wagner's testimony, not because Wagner failed to establish that she actually had a conversation with Vogel, but because Wagner lacked foundation to testify about the thoughts and beliefs of her floridly psychotic brother during the jailhouse incident. For these reasons, we cannot conclude that the district court abused its discretion in excluding this testimony, in part, because of lack of foundation. Its determination was not illogical, implausible, or without support in inferences that may be drawn from the facts in the record.
Neither party disputed Dr. Spitz's preliminary conclusions that (1) Vogel's death was caused by acute cardiac arrhythmia, and (2) people with severe schizophrenia have an increased chance of dying from cardiac arrhythmia. The district court excluded Dr. Spitz's testimony, because there was no reliable scientific basis for his supplemental conclusion that Vogel's dress-out experience at the county jail caused his cardiac arrhythmia three weeks later. The majority concludes that the district court erred in excluding Dr. Daniel Spitz's testimony. I disagree.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., a court must determine
In addition to the district court's findings above, Dr. Spitz admitted that he (1) did not interview any witnesses, (2) did not consult any relevant treatises or literature, and (3) only had experience investigating the deaths of possibly four or five schizophrenics where the cause of death was acute arrhythmia. Dr. Spitz also based his opinion, in part, on statements from Vogel's relatives (which the court deemed unreliable and inadmissible) and what he termed "common sense." Further, although Dr. Spitz testified that the dress-out procedure played a role in Vogel's death, he could not explain why other events—such as the car accident immediately preceding Vogel's death—had not caused acute arrhythmia earlier, explaining that "[w]hy [Vogel] died when he did is something probably nobody knows."
Plainly stated, Dr. Spitz's general qualifications as a medical examiner do not provide him license to speculate regarding the environmental—as distinct from the medical—factors that caused Vogel's death. Dr. Spitz provided no scientific theory or method that could substantiate his purportedly "common sense" idea that the jailhouse dress-out procedure three week earlier was the cause of Vogel's heart arrhythmia. Though Dr. Spitz could testify to the medical causes of Vogel's death, his speculation as to which of the many environmental stressors in Vogel's life "likely" or "probably" caused death did not meet Daubert's threshold standard for scientifically valid reasoning or methodology. Given the many glaring deficiencies in Dr. Spitz's proposed testimony, the district
The majority concludes that the district court abused its discretion in excluding certain portions of the expert testimony of Dr. Phillip Esplin. The district court determined that Dr. Esplin's testimony was (1) "[un]supported by evidence;" (2) wholly "uncredible," because, by Dr. Esplin's own admission, no one can know what a floridly psychotic person was thinking; (3) lacking foundation; (4) "more prejudicial than probative;" and (5) going to "puzzle" the jury. Given these deficiencies, I cannot say the district court's ruling was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.
The majority's cursory treatment of the district court's ruling on Dr. Esplin's testimony never explains how the district court applied an erroneous legal standard or relied on a clearly erroneous finding of fact. No reliable evidence in the record—apart from Wagner's testimony—supported Dr. Esplin's claim that Vogel thought the pink coloring of the jail-issued underwear was significant. Dr. Esplin himself admitted that no one could know or understand what was going on inside the mind of a floridly psychotic schizophrenic, suggesting that, even with Wagner's testimony, his testimony on causation would be purely speculative. Given these foundation and methodological deficiencies, the district court acted within its discretion to exclude this testimony under Federal Rules of Evidence 702 and 703.
Lastly, the majority hastily concluded that the district court abused its discretion by denying the Estate a rebuttal closing argument at trial. However, the majority never explains what law gives a plaintiff in the District of Arizona an inalienable right to rebuttal argument, much less how the district court abused its discretion in shaping closing arguments under District of Arizona Local Rule 39.1(d). Rule 39.1(d) guarantees a "right to close" to the party bearing the burden of proof, but that rule has never been defined to provide the right to speak last. The district court permitted the Estate to make a "thorough," 60-minute closing argument. Following a short recess, the court explained to counsel that "[t]he closing is going to end with [the County]. There isn't going to be any rebuttal. I just did a little research, it's discretionary. [The Estate] had a thorough, complete effort at it, and [the County] is entitled to that as well. But we're not going to have a rebuttal." The court also noted, "I don't think there was anything that [the Estate] could have touched on that [the Estate] didn't explore, several times."
It is well established that a "trial court has broad discretion in controlling closing arguments." United States v. Spillone, 879 F.2d 514, 518 (9th Cir.1989); accord Fernandez v. Corporacion Insular De Seguros, 79 F.3d 207, 209-10 (1st Cir.1996) ("The decision to permit rebuttal [in a civil action] is a procedural matter which rests within the sound discretion of the trial judge and rarely (if ever) provides fertile ground for appeal." (internal citation omitted)). Because the Estate closed with a 60-minute argument pursuant to Rule 39.1(d), the district court did not abuse its "broad" discretion in denying the Estate a rebuttal closing argument.
I would therefore affirm.
