ORDER ON PLAINTIFF'S MOTIONS IN LIMINE*
GARLAND E. BURRELL, Jr., District Judge.
Plaintiff moves in limine for a pretrial order precluding the admission of certain evidence at trial. Each motion is addressed below.
Motion in Limine No. 1
Plaintiff moves to preclude Detective Robert Tracy from "giving any bullet trajectory opinions in this case including his opinion, first stated in [his] May 28, 2015 declaration, that it was Deputy Brown's round that struck Plaintiff." (Pl.'s Mot. in Limine ("MIL") No. 1 7:5-7, ECF No. 96.) Plaintiff argues:
Detective Tracy's bullet trajectory opinions in this case . . . constitute expert opinion. . . . Although there might be some circumstances under which there could be obvious general observations about bullet trajectories made that are not based on specialized knowledge, the bullet trajectory opinions in this case stated by Detective Tracy clearly do require specialized knowledge. Defendants did not disclose Detective Tracy as an expert witness. . . .
. . . .
. . . Although a few courts have found that bullet trajectory evidence, under some circumstances, did not require "specialized knowledge" within the meaning of [Federal] Rule [of Evidence ("FRE")] 702, the weight of authority clearly finds that bullet trajectory analysis requires at least some degree of specialized expertise."
Relevant here, Detective Tracy's statements are clearly based on scientific, technical, or other specialized knowledge within the scope of [FRE] 702. Detective Tracy was not identified as an expert witness in this case and is not qualified to render expert opinion. . . .
. . . .
Detective Tracy was not a percipient witness to the shooting. His statements that he determined which round struck Plaintiff and that the round fired by Deputy Brown struck Plaintiff are opinions that are properly the subject of expert testimony only. Defendants did not disclose Detective Tracy as an expert witness in their Designation of Expert Witnesses Pursuant to Federal Rule of Civil Procedure [("FRCP")] 26(a)(2). Their failure to do so has prejudiced the Plaintiff's case.
Detective Tracy's bullet trajectory opinions at summary judgment came after all witness disclosure deadlines and thus deprived Plaintiff of an opportunity to seek a rebuttal ballistic expert. There was, further, no opportunity to seek a second deposition or to explore the bas[es] of Detective Tracy's opinions and qualifications to render such opinions because discovery was closed. As discussed at the final pretrial conference[,] it is undisputed that despite being assigned to review [Plaintiff's] shooting, Detective Tracy did not include his bullet trajectory opinions in any report. If Detective Tracy acquired additional data or performed or obtained additional testing in regard to forming these opinions, there is no record of it. In the absence of a report, Plaintiff has no means of effectively cross-examining Detective Tracy about his bullet trajectory opinions. On all of these bases, defendants' non-disclosure of Detective Tracy's bullet trajectory opinions has prejudiced the Plaintiff's case.
(Id. at 2:20-3:18, 6:16-7:3 (citations omitted).)
Defendants oppose the motion, rejoining that "Det. Tracy is not being offered as an expert[; t]here is no per se rule that bullet trajectory or path of travel requires expert testimony." (Defs.' Opp'n to Pl.'s MIL No. 1 3:14-15, ECF No. 119.) Defendants argue:
Det. Tracy made observations about physical locations of evidence that allowed him to conclude about the likely path of travel. Here, physical location of the recovered AR-15 round from a partition wall inside the apartment approximately five feet up, versus the evidence of a ricochet on the ground and recovered 9mm round lodged into a closet door, which appeared to be in line with the ricochet. Taking into account the approximate height of the wound, the conditions of the rounds, did not require specialized knowledge, but based on simply logic grounded in simple line-of-sight determinations. Indeed, photographs show the ricochet tear through the carpet, the path of travel through ottoman fabric, a hole in the closet door, to allow what appears to be an obvious likely path of travel. Such observations do[] not require specialized knowledge, but simple "line of sight" deductive reasoning.
(Id. at 3:5-14.)
It is unclear precisely what bullet trajectory evidence is within the scope of the motion. Given the in limine record, Plaintiff has not shown that certain bullet trajectory evidence concerning the nature of a hole or tear made by a bullet, or the direction from which the bullet(s) came in light of the referenced impact(s) is inadmissible under FRE 701. Therefore, the motion is DENIED.
Motion in Limine No. 2
Plaintiff moves to "exclud[e] any evidence . . . [concerning Plaintiff's] text messages recovered after the shooting[,]" including "a message dated `March 25' from `Nathan,' which reads, `U pulled a knife on brittany ... u really should think about movin ... soon ... real talk.... im losin ur number after this text (sic).'" (Pl.'s MIL No. 2 2:2-4, 3:9-13, ECF No. 97.) Plaintiff argues:
This motion is based on four independent rationales. The first is that Plaintiff[`s] . . . text messages are plainly irrelevant since the defendant officers were neither aware of them at the time they used lethal force against Plaintiff, nor did the messages refer to any incident at issue in this case. Second, any argument that [Plaintiff] was engaged in any specific conduct based solely on his text messages (about his conduct on a separate occasion) would involve an improper inference based on [Plaintiff's] alleged character. Third, any reference to these text messages would be highly prejudicial at trial in this case, and would also necessitate a mini-trial about the previous episode that is the subject of the text messages. [Fourth, the text messages are hearsay.]
(Id. at 2:10-11, 3:14-22.)
Defendants counter:
These text messages are highly relevant and admissible under [FRE] 404(b)(2) to show Plaintiff's motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or accident, and/or state of mind, in answering the knocking on his door (by Deputy Rose) so close in time to these events. In other words, the text messages . . . are highly probative to show why Plaintiff opened the door in the manner the deputies observed.
(Defs.' Opp'n to Pl.'s MIL No. 2 2:17-22, ECF No. 120.) Defendants further rejoin that "the text messages are relevant to show Plaintiff's credibility." (Id. at 3:15.) Defendants argue:
[Plaintiff] claims to have been asleep at the time the deputies[] knocked, yet the quickness of the door opening with a knife in his hand after the knocks would reasonably imply Plaintiff was not asleep, and tends to impeach him in terms of his claim that he did not have any plan in opening the door, such as seeking to scare whoever was at the door. Regardless, where Plaintiff himself, sent a text, such is an admission of a party. That he admitted for example, that "any senseable [sic] person would at that time of night or morning should" in response to Nathan's accusation of pulling a knife on Brittany supports a reasonable inference that Plaintiff did not deny doing so, put [sic] was admitting having done so in offering an explanation why he did so. The accusation of Nathan of "pulling a knife" would be offered to show what Plaintiff was responding to in its proper context.
(Id. at 3:15-24 (first [sic] in original).)
[FRE] 404(b) is properly applied as follows:
"Upon objection . . ., the proponent of the evidence . . . should be required to identify the specific purpose or purposes for which [the party] offers the evidence of `other crimes, wrongs, or acts.' By so requiring, we do not mandate hypertechnicality. . . . Nevertheless, the [proponent's] purpose in introducing the evidence must be to prove a fact that . . . [is] in issue. . . .
After requiring the proponent to identify the specific purpose for which the evidence is offered, the district court must determine whether the identified purpose . . . is "material"; that is, whether it is "in issue" in the case. If the court finds it is, the court must then determine, before admitting the other acts evidence, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under [FRE] 403. If the evidence satisfies [FRE] 403, then, after receiving the evidence, the district court must "clearly, simply, and correctly" instruct the jury as to the specific purpose for which they may consider the evidence."
United States v. Curtin, 489 F.3d 935, 957 (9th Cir. 2007) (emphasis added) (quoting United States v. Merriweather, 78 F.3d 1070, 1076-77 (6th Cir. 1996)). "Indeed, when a proponent of [FRE] 404(b) evidence contends that it is both relevant and admissible for a proper purpose, `the proponent must clearly articulate how that evidence fits into a chain of logical inferences, no link of which may be the inference that the defendant has the propensity to [act in a certain manner].'" Becker v. ARCO Chemical Co., 207 F.3d 176, 191 (3rd Cir. 2000) (quoting United States v. Morely, 199 F.3d 129, 133 (3rd Cir. 1999)).
Here, Defendants have failed to satisfy their burden to admit the text messages under FRE 404(b). They have neither clearly identified a specific purpose permitted under FRE 404(b), nor shown that such purpose is material to this case. Cf. United States v. Gomez, 763 F.3d 845, 856, 860 (7th Cir. 2014) (stating FRE 404(b) "allows the use of other-act evidence only when its admission is supported by some propensity-free chain of reasoning"; "caution[ing] against judicial freelancing in . . . [the FRE 404(b) limiting instruction] area"; and stating "the limiting instruction should be customized to the case rather than boilerplate.").
However, the in limine record lacks sufficient factual context for a pretrial ruling concerning whether any text message evidence is admissible for impeachment. Therefore, it has not been shown that the exclusion of this evidence can be decided before trial.
Motion in Limine No. 3
Plaintiff seeks to "exclude evidence of [his] arrest, prosecution[,] and [misdemeanor] conviction" of violating California Penal Code section 417(a)(1),1 arguing "there is no permissible purpose for admitting this evidence at trial." (Pl.'s MIL No. 3 1:23-26, 2:8, ECF No. 98.) Plaintiff contends, inter alia: "[a]pplication of Heck v. Humphr[ey], 512 U.S. 477 (1994) as a potential bar to this civil suit has been . . . rejected"; Plaintiff's nolo contendere plea to violation of section 417(a)(1) is inadmissible against him under FRE 410(a)(2); evidence of the conviction is "not admissible as impeachment evidence under [FRE] 608, since the underlying conduct is not probative of Plaintiff's character for truthfulness"; and "because there is no evidence regarding the factual basis for [his] no contest plea [in state court], its admission poses a high risk of misleading the jury, confusing the issues, causing undue prejudice[,] and wasting time." (Id. at 3:3-4, 3:20-21, 4:16-20, 7:26-28.)
Defendants rejoin: "while reference to the plea or conviction may not be admissible for consideration by the jury, the conviction itself and underlying facts related to the conviction should be considered by the Court as a potential bar to Plaintiff's excessive force claims under Heck v. Humphrey." (Defs.' Opp'n to MIL No. 3 2:4-7, ECF No. 121.) Except for Defendants' argument under Heck, Defendants have not opposed this motion.
Defendants argue under Heck:
[Plaintiff's] nolo contendere plea to the charge under California Penal Code 417(a)(1) bars Plaintiff's excessive force claim under Heck v. Humphrey, that specific findings by the jury in response to special factual interrogatories [in this federal lawsuit] may support the application of a Heck bar to Plaintiff's claims. . . .
(Id. at 2:7-11.)
However, Defendants' Heck v. Humphrey defense was raised earlier in this action in a summary judgment motion, which was rejected by District Judge John A. Mendez ("Judge Mendez's MSJ ruling"). (See MSJ Hr'g Tr. 5:23-10:14, ECF No. 68.) Defendants have not shown that Judge Mendez's MSJ ruling does not foreclose the Heck v. Humphrey argument raised in opposition to this in limine motion. It was established during the summary judgment proceeding that there is no factual basis supporting Plaintiff's plea, and Defendants have not shown a basis for reconsideration of Judge Mendez's MSJ ruling.
Nor have Defendants shown that their opposition does not concern a substantive legal issue that was required to have been raised within the law and motion cutoff date prescribed in the May 10, 2013 Status Order. (Status Order 2:6-19, ECF No. 12; see id. at 2:11-16 ("The parties are reminded that motions in limine are procedural devices designed to address the admissibility of evidence and are cautioned that the court will look with disfavor upon substantive motions presented at the final pre-trial conference or at trial in the guise of motions in limine.").)
For the stated reasons, this in limine motion is GRANTED.
Motion in Limine No. 4
Plaintiff moves to exclude "any evidence, testimony, argument, or reference at trial to his own criminal history or prior bad acts[,]" arguing such evidence "is plainly irrelevant, . . . would involve an improper inference based on [Plaintiff's] character[, and] . . . would be highly prejudicial at trial." (Pl.'s MIL No. 4, 1:19-2:2, ECF No. 101.)
This motion lacks the concreteness required for a pretrial in limine ruling. See, e.g., Weiss v. La Suisse, Soc'y D'Assurances Sur La Vie, 293 F.Supp.2d 397, 407-08 (S.D.N.Y. 2003) (denying motion to exclude evidence for a "lack[] of specificity[,]" stating "[n]o particular documents or testimony have been identified in the motion"); Colton Crane Co., LLC v. Terex Cranes Wilmington, Inc., No. CV 08-8525 PSG (PJWx), 2010 WL 2035800, at *1 (C.D. Cal. May 19, 2010) (stating "motions in limine should rarely seek to exclude broad categories of evidence, as the court is almost always better situated to rule on evidentiary issues in their factual context during trial").
Motion in Limine No. 5
Plaintiff seeks to limit Defendants' toxicology expert Dr. Richard Clark's trial testimony as follows: to preclude him from testifying as to conclusions 1 and 2 in his report, to exclude his opinions that drugs and alcohol affected Plaintiff's memory or caused him to act in a certain manner at the time of his interaction with Defendants Brown and Rose, and to exclude any testimony concerning cocaine usage. (Pl.'s MIL No. 5 2:2-8, ECF No. 103.) Plaintiff's arguments concerning the referenced areas of testimony are addressed in turn.
First, Plaintiff argues "Dr. Clark should be prohibited from testifying as to his conclusions numbered 1 and 2[,]" contending they "consist of one-sided recitations of some evidence in this case," and are "neither based on Dr. Clark's medical opinions nor [are] helpful to the jury." (Id. at 4:10-12.) Dr. Clark's first and second conclusions are stated in his expert report as follows:
1. On March 25, 2011 around 04:30 in the morning, a caller to 911 stated there was an individual who shot a gun and had a steak knife in his hand at Oakwood Apartments. The individual had fired the gun outside and entered apartment #144. The caller also noted the armed individual in apartment #144 was possibly high on drugs. Several deputies responded to the address provided by the caller.
2. The deputies decided to take a "low key" approach at the residence. They positioned themselves at the front and back of the apartment, but due to the potential to encounter an armed and intoxicated individual, several had their service weapons drawn. At approximately 0500, one of the deputies knocked on the front door of apartment #144. According to the deputies at the front door, shortly after the knocking, the door flew open and a male subject (later identified as [Plaintiff]) began exiting the apartment holding a large knife extended above his head. The deputies noted [Plaintiff] to lean forward with the knife in a potential stabbing motion toward Deputy Rose. At that time, Deputy Brown fired one round from his rifle, striking Mr. Reese, followed by a shot from the service weapon of Deputy Rose which did not strike [Plaintiff].
(Clark Report 1, ECF No. 103, ECF p. 8 of 19.)
Second, Plaintiff seeks to preclude Dr. Clark from testifying that alcohol and/or drugs contributed to Plaintiff's behavior or caused him to act in a certain way, including Dr. Clark's stated opinion "with medical probability that th[e] level of alcohol in his system and the presence of marijuana led to or contributed to his agitated and bizarre behavior." (Pl.'s MIL No. 5 4:13-15, 5:9-11, 5:24-25; Clark Report 3, ECF p. 10 of 19.) Plaintiff argues:
As a toxicologist, Dr. Clark is qualified to testify regarding the potential range of effects that drugs or alcohol can have on a person. However, there is no foundation for Dr. Clark to opine that the alcohol or drugs in Plaintiff's system had any specific effect on his behavior, on the outcome of the incident, or on his recall of the events following the incident, on the night in question. Any . . . testimony that purports to determine what alcohol or marijuana "caused" [Plaintiff] to do . . . or how it affected him on a certain occasion is speculation. . . . Such opinions are also outside Dr. Clark's expertise as a toxicologist.
. . . .
. . . Dr. Clark is qualified to testify as to what the effects of drugs or alcohol might be on a person, but he cannot know, and has conceded that he does not know how alcohol or drugs actually affected Plaintiff in this case.
(Pl.'s MIL No. 5 4:21-5:23.) Plaintiff further argues that such opinions are contrary to Dr. Clark's deposition testimony "that he did not know whether drugs and alcohol affected Plaintiff's behavior during the incident or whether Plaintiff's drug and alcohol consumption prior to the shooting affected his recall of events afterwards." (Id. at 4:16-5:5, 5:26-28.)
Third, Plaintiff seeks to preclude Dr. Clark from "testifying or opining about cocaine[,]" arguing "[a]lthough Plaintiff has testified that he consumed a line of cocaine the evening [before] the shooting, Dr. Clark has acknowledged that there is no medical evidence of any cocaine in his system such that it could have affected his behavior." (Id. at 6:5-9.)
Defendants rejoin that Dr. Clark's conclusions Nos. 1 and 2 "reasonably appear to simply be Dr. Clark's summary of the facts as he understood the material he reviewed, [as] such are not opinions, and Plaintiff is welcome to cross-examine Dr. Clark regarding any facts or assumptions made in forming his opinions." (Defs.' Opp'n to Pl.'s MIL No. 5 2:23-26, ECF No. 123.) Defendants further counter:
[Dr.] Clark is a retained expert witness in behavioral toxicology, not just toxicology[, and] . . . he was [disclosed] as such: "Dr. Clark is an expert behavioral toxicologist and emergency room physician who will testify regarding the toxicology results in this case, and the effect of the drugs and alcohol used by Plaintiff on his behavior and the circumstances of the events in question." Thus, where Plaintiff attempts to exclude his testimony because he improperly limits his expertise to just "toxicology", such is improper.
. . . .
Plaintiff also appears to seek to exclude Dr. Clark's opinions based on alleged inconsistencies, or characterization of behavior of one who is under influence of drugs and alcohol. Defendants submit Plaintiff appears to misstate the opinions or confuse any distinction being made between quantification of affect, versus medical relational causation between the alcohol and drug use to behavior and memory.
In other words, it appears Plaintiff's argument is not that Dr. Clark's opinion[s] are not admissible under Daubert . . . but whether there was a sufficient factual basis to render an opinion, or his opinions are inconsistent. . . . [S]uch arguments do not render [his] opinion[s] inadmissible, but go to the weight of the opinions.
(Id. at 2:4-3:8.)
Defendants' arguments concerning Dr. Clark's "conclusions" Nos. 1 and 2 do not demonstrate the probative value of the challenged information as it concerns the nature of Dr. Clark's anticipated expert testimony. Further, other arguments raised by Defendants are unclear. Nevertheless, Plaintiff has not shown that the permissible scope of Dr. Clark's testimony can be decided before trial. Therefore, this motion is DENIED.
Motion in Limine No. 6
Plaintiff moves to exclude certain defense reconstruction photos (Defs.' Exs. N-1 through N-23) from trial, arguing they "were not timely disclosed[;]" are irrelevant "since they do not depict the shooting, and instead only reflect the defense use of force expert's one-sided reconstruction of the event[;]" and "are more prejudicial than probative, since the jury could substitute [a one-sided] visual image for the necessary evaluation and weighing of the evidence presented on both sides." (Pl.'s MIL No. 6 2:2-3, 3:7-15, ECF No. 95.)
Concerning the timing of disclosure, Plaintiff contends:
The photographs at issue were not disclosed together with [Defendants' use of force expert] Massad F. Ayoob's [FRCP] 26 report or as a part of any supplemental [FRCP] 26 disclosure. Instead, they were produced for the first time at Mr. Ayoob's deposition.
. . . .
The expert witness disclosure deadline and rebuttal witness disclosure deadlines were February 27, 2015 and March 13, 2015, respectively. Given that the photographs were both in existence and in Defendants' possession almost a full year prior to their disclosure, the failure to disclose is not substantially justified.
Plaintiff was prejudiced by the late disclosure in the form of unfair surprise at the deposition, which was being taken telephonically. The Defendants' late disclosure left Plaintiff's counsel with no reasonable opportunity to cross examine the expert, Mr. Ayoob about the photographs. Defendants clearly failed to comply with [FRCP] 26(a) in regard to these photographs and Plaintiff was greatly prejudiced.
(Id. at 3:18-5:6 (citations omitted).)
Defendants counter:
while not provided as part of the expert report, the photographs were disclosed during the deposition of Mr. Ayoob in response to a request for production, and therefore the failure was harmless[;] are relevant[;] . . . and their probative value is not outweighed by any prejudice under [FRE] 403.
(Defs.' Opp'n to Pl.'s MIL No. 6 1:27-2:2, ECF No. 124.) Defendants further assert concerning their argument that the late disclosure of the photographs was harmless:
Here, while the expert report disclosures on February 27, 2015 admittedly did not include the photographs, the[y] were produced on April 25, 2015. Counsel for Plaintiff did not seek to continue or postpone the deposition. Likewise, while acknowledging an opportunity to ask questions, [he] expressly determined not to. As this occurred six (6) months ago, any failure to disclose at the time of the report was cured by the disclosure at the deposition, and thus was harmless.
(Id. at 3:17-21.)
"[FRCP 26] requires the parties to disclose the identities of each expert and, for retained experts, requires that the disclosure includes the experts' written reports." Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011) (citing Fed. R. Civ. P. 26(a)(2)). Such reports must contain, in relevant part: "(i) a complete statement of all opinions the witness will express and the basis and reasons for them; [and] . . . (iii) any exhibits that will be used to summarize or support them." Fed. R. Civ. P. 26(a)(2)(B) (emphasis added).
"[FRCP] 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by [FRCP] 26(a) that is not properly disclosed." Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). "Two express exceptions ameliorate the harshness of [FRCP] 37(c)(1): The information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless." Id. (citing Fed. R. Civ. P. 37(c)(1)). "[T]he burden is on the party facing sanctions to prove harmlessness." Id.
Among the factors that may properly guide a district court in determining whether a violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence.
Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. App'x 705, 713 (9th Cir. 2010) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
Here, Defendants have shown that the late disclosure of the referenced photographs was harmless. Although Plaintiff makes a conclusory argument that he was "greatly prejudiced" by the disclosure of the photographs during Mr. Ayoob's deposition, he has not shown how he has been prejudiced. The photographs are "merely illustrative" of Mr. Ayoob's opinions and the bases therefore. Cabassa-Rivera v. Mitsubishi Motors Corp., No. 05-1217(JAF), 2006 WL 6870560, at *12 (D.P.R. May 2, 2006) (denying motion in limine to preclude expert from testifying about matters covered during deposition that were not contained in the expert's report). Further, "[t]o the extent that Plaintiff[] w[as] surprised by what transpired at [the] deposition, [he] ha[s] had . . . ample time" to accommodate accordingly. Id. Mr. Ayoob was deposed on April 25, 2015, approximately six months before trial was scheduled to commence.
Further, Plaintiff has not shown that the photographs are irrelevant or should be excluded under FRE 403.
For the stated reasons, this motion is DENIED.
Motion in Limine No. 82
Plaintiff seeks to exclude evidence concerning Plaintiff's receipt of "any type of governmental financial assistance" as irrelevant and unduly prejudicial, arguing "in today's society[,] there may be jurors who take a dim view of someone who receives any sort of public assistance and, on the basis of poverty, denigrate the merits of [his] claim." (Pl.'s MIL No. 8 1:23-24, 2:3-5, ECF No. 99.) Plaintiff further argues the Court "should . . . redact . . . any testimony or documents to the extent such . . . evidence reflects on his economic condition." (Id. at 2:18-20.)
Defendants rejoin that "this evidence is relevant to Plaintiff's claims for noneconomic damages, bias and motivation for suit, and does not run afoul of [FRE] 403." (Defs.' Opp'n to Pl.'s MIL No. 8 1:26-28, ECF No. 125.) Defendants argue:
In this case, Plaintiff requests noneconomic damages from Defendants based on his post incident pain and suffering, and a diminished quality of life as a result of injuries he sustained from the shooting. Plaintiff identifies three separate testimonial witnesses . . . to testimony about the effect of the shooting on Reese's "quality of life."
By making that damage claim, Defendants submit that Plaintiff has put his pre-shooting quality of life directly at issue. Therefore, Defendants must be allowed to explore different aspects of Plaintiff's quality of life prior to the incident[, which] . . . may include . . . his financial condition. . . . In that regard, [that] there was a need for Plaintiff to participate a County General Assistance Program tends to be probative of the quality of his life before the incident on March 25, 2011. . . . Further, Plaintiff's financial condition before this lawsuit is directly relevant to bias against the County, and motivation to pursue this litigation against the County. For these reasons, Defendants submit that Plaintiff's acceptance of public assistance by way of participation in a General Assistance program prior to the incident is relevant to his damages claims in this case. . . .
(Id. at 2:22-3:12.)
Although it has not yet been decided how the jury will be instructed on the damages issues, it is understood that Plaintiff seeks pain and suffering damages under federal and California law. The California Supreme Court states in Capelouto v. Kaiser Found. Hosps., 7 Cal.3d 889, 892-93 (1972):
In general, courts have not attempted to draw distinctions between the elements of "pain" on the one hand, and "suffering" on the other; rather, the unitary concept of "pain and suffering" has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.
Here, Plaintiff has not shown that the source(s) of money Plaintiff receives for subsistence are not probative of the "nervousness," "anxiety," "worry," and/or "apprehension" components of his claimed "pain and suffering" damages. Further, Plaintiff has not demonstrated that such evidence's relevance, in that regard, is "substantially outweighed by the danger of unfair prejudice that drawing [the asserted] adverse inference" could cause Plaintiff. Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1266 (9th Cir. 2000).
Therefore, this motion is DENIED.
Motion in Limine No. 9
Plaintiff moves to exclude any evidence or reference at trial to "an encounter between Plaintiff . . . and his neighbors" that occurred before the shooting, arguing such evidence: is irrelevant "since the defendant officers were unaware of it at the time they used lethal force against Plaintiff"; is improper character evidence under FRE 404; and should be excluded as highly prejudicial. (Pl.'s MIL No. 9 2:2-13, ECF No. 102.)
This motion lacks the concreteness required for a pretrial in limine ruling.
Motion in Limine No. 10
Plaintiff moves to "exclude Plaintiff's unrelated drug and alcohol use," arguing: "[e]xcept for [Plaintiff's] blood alcohol and THC content at the relevant time and alcohol and marijuana consumption March 24-25, 2011, Plaintiff's alcohol and drug use holds no probative value to the issues in this case[,]" and is highly prejudicial. (Pl.'s MIL No. 10 1:22-24 2:10-12, ECF No. 100.)
Defendants counter that Plaintiff's "historical drug use/abuse is probative for purposes of damages[,]" arguing "Plaintiff's past drug and alcohol use clearly affects his quality of life, in comparison from past to present, which in turn affects the calculation of damages." (Defs.' Opp'n to Pl.'s MIL No. 10 2:8-9, 2:19-21, ECF No. 127.) Defendants further rejoin:
In terms of unfair prejudice, Plaintiff's argument that such evidence is prejudicial falls far short of whether its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence under [FRE]. 403.
(Id. at 2:23-26.)
Plaintiff has not shown that this motion can be decided before trial. Therefore, it is DENIED.
