SHEILA K. OBERTO, Magistrate Judge.
The Court conducted a pretrial conference on September 6, 2017. Plaintiff David Romero ("Plaintiff" or "Plaintiff Romero") appeared personally through his counsel Steven A. Geringer, Esq. Defendant James Yates ("Defendant" or "Defendant Yates") appeared personally through his counsel Deputy Attorney General John C. Bridges, Esq., and telephonically through his counsel Supervising Deputy Attorney General Alberto L. Gonzalez, Esq. Following the pretrial conference, the Court entered its Pretrial Order setting trial for October 23, 2017, and the related pretrial deadlines. (Doc. 73.)
On September 13, 2017, the parties conducted a telephonic conference to discuss Plaintiff's request to continue the trial date to November or December due to the unavailability of Plaintiff's counsel. (See Doc. 75.) The Court hereby GRANTS that request and, pursuant to Federal Rule of Civil Procedure 16(e) and Rule 283 of the Local Rules of the United States District Court, Eastern District of California, issues the following Amended Pretrial Order.
Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343, and the Eastern District of California is the proper venue pursuant to 28 U.S.C. §§ 1391(b)(2) and 1441. The parties have no dispute regarding jurisdiction or venue.
This case will be tried before a jury.
Trial will commence on
1. Plaintiff David Romero and Defendant James Yates were involved in a verbal altercation while driving on southbound Schnoor Avenue in Madera, California, on the evening of December 23, 2012.
2. Both parties were in lawful possession of firearms.
3. Defendant Yates followed Plaintiff Romero from southbound Schnoor Avenue to eastbound Fillmore, to southbound Orchard Avenue.
4. Plaintiff Romero was driving his 2008 Dodge Dakota pickup at the time of the incident.
5. Defendant Yates was driving his Toyota Sequoia at the time of the incident.
6. Jenny Ortega Yates, Defendant Yates' wife, was a passenger in Defendant's vehicle at all relevant times.
7. Mrs. Yates called 9-1-1 during the incident and reported that Plaintiff Romero had brandished a handgun at her husband. Mrs. Yates stated to the 9-1-1 operator that she did not personally see the handgun, but her husband told her that he saw it.
8. While traveling southbound on Orchard Avenue, Plaintiff Romero made a U-turn at its intersection with University Avenue, so he was then traveling northbound on Orchard Avenue. Defendant Yates was traveling southbound on Orchard Avenue at the time of the U-turn.
9. Upon completion of the U-turn by Plaintiff Romero, Defendant Yates cut into the northbound lane of Orchard Avenue to block Plaintiff's path. At that time, Defendant Yates exited his vehicle and fired 6 (six) shots into Plaintiff's vehicle.
10. One of the bullets struck part of Plaintiff Romero's index finger on his left hand.
11. Defendant Yates did not identify himself as a law enforcement officer during the incident.
1. Whether Plaintiff brandished a firearm at Defendant.
2. Whether Plaintiff posed an immediate threat to the safety of Defendant or others.
3. Whether Defendant said anything to Plaintiff prior to firing his gun.
4. Whether Defendant's use of force was reasonable under the circumstances.
5. Whether or not Plaintiff was comparatively at fault for the use of the force and/or negligence claims.
6. The nature and extent of injury to Plaintiff caused by Defendant.
7. The amount of damages, if any, attributable to Defendant.
8. Whether or not Defendant's conduct toward Plaintiff was malicious, oppressive or in reckless disregard of his rights.
9. If so, the amount of appropriate punitive damages, if any.
Defendant expects to offer motions in limine including, but not limited to, the following requests:
1. Exclude Defendant's personal information, including, but not limited to, disciplinary records and other personnel files related to his employment with the California Highway Patrol, and testimony.
2. Exclude evidence and testimony regarding the criminal proceedings against Plaintiff arising from the subject incident, including reference to the dismissal of all charges by the Madera County District Attorney.
3. Exclude evidence and testimony regarding the arrest of Plaintiff by California Highway Patrol officers Lancaster, Jimenez, and Ruvalcaba, including any injuries allegedly sustained during the arrest, if any.
Plaintiff was 51 years old at the time of the incident. He alleges a broken bone in his left index finger caused by the shooting. Plaintiff underwent surgery for this injury, but alleges that the finger is permanently disfigured. He underwent a second surgery to his finger because one of the surgical pins broke. His total incurred medical bills related to this injury are $10,552.57. He missed approximately two months of work, which totals approximately $7,000.
Plaintiff seeks compensatory and punitive damages in an amount to be determined by the jury. Plaintiff will presumably seek attorneys' fees if he prevails on the claim under 42 U.S.C. § 1983. Plaintiff did not allege that he was seeking declaratory relief or injunctive relief in his Complaint.
Defendant prays for a judgment in his favor with Plaintiff taking nothing.
The law concerning qualified immunity was thoroughly briefed in Defendant's summary judgment motion. Defendant will offer a trial brief as ordered by this Court.
None.
None.
In the interest of judicial economy and to avoid prejudice to Defendant or confusing the jury, Defendant requests that trial on issues solely related to the punitive damages claim be bifurcated. Trial of those issues should immediately follow trial of the other issues if the jury finds that such damages are recoverable.
At the pretrial conference, Plaintiff stated he does not oppose Defendant's request for bifurcation of trial on issues solely related to the punitive damages claim.
Discovery has closed. The parties do not anticipate any further motions other than motions in limine.
The parties appeared for a settlement conference before U.S. Magistrate Judge Stanley A. Boone on August 21, 2017, but the case did not settle.
The following are lists of witnesses that the parties expect to call at trial, with the exception of rebuttal and impeachment witnesses:
1. Plaintiff David Romero
2. Defendant James Yates
3. Jenny Ortega Yates
4. Officer Javier Ruvalcaba
5. Officer Christopher Lancaster
6. Officer Efrain Jimenez
7. Kevin Dunivan
8. Jorge Acosta
1. Defendant James Yates;
2. Jenny Ortega Yates;
3. Plaintiff David Romero;
4. Officer Daniel Foss;
5. Officer Lori Alva
The parties are cautioned that
No later than
Neither party has designated any expert witnesses.
Only those exhibits that are listed in this Pretrial Order may appear on the final exhibit list. Further, no exhibit other than those listed in the final exhibit list may be admitted at trial unless the parties stipulate or upon a showing that this order should be modified to prevent "manifest injustice." Fed. R. Civ. P. 16(e).
1. Defendant's Rule 26 Initial and Supplemental Disclosures.
2. Photographs and video recordings of the incident scene.
3. Photographs of Plaintiff at time of his arrest.
4. Excerpts of Preliminary Hearing Transcript of Jenny Yates in Madera Superior Court No. MCR045397.
5. Excerpts of Preliminary Hearing Transcripts of James Yates in Madera Superior Court No. MCR045397.
6. Excerpts of Preliminary Hearing Transcripts of Officer Daniel Foss in Madera Superior Court No. MCR045397.
7. MAIT (Multidisciplinary Accident Investigation Team) Narrative/Diagram.
8. Aerial and Street maps of area where the incident occurred.
9. Medical Reports and Billing Records of Regional Hand Surgery Associates relating to the injuries sustained by Plaintiff from the actions of Defendant shooting at and striking Plaintiff.
10. Medical Reports and Billing Records of Roy O. Kroeker DPM, Inc. relating to the injuries sustained by Plaintiff from the actions of Defendant shooting at and striking Plaintiff.
11. Medical Reports and Billing Records of Randi A. Galli, M.D. relating to the injuries sustained by Plaintiff from the actions of Defendant shooting at and striking Plaintiff.
12. Records of lost wages incurred by Plaintiff from being shot by Defendant.
13. Damages to Plaintiff's truck from Defendant shooting into Plaintiff's truck.
14. Excerpts of Deposition Transcripts of Officer Javier Ruvalcaba conducted in this proceeding.
15. Excerpts of Deposition Transcripts of Officer Christopher Lancaster conducted in this proceeding.
16. Excerpts of Deposition Transcripts of Officer Efrain Jimenez conducted in this proceeding.
1. Plaintiff's Rule 26 Initial Disclosure.
2. Audio recording of the 9-1-1 call placed by Jenny Yates.
3. Video recording of the Madera Police Department interview with Plaintiff on the evening of the incident at the police station.
4. Photographs of the .40 handgun found in Plaintiff's possession at the scene of the incident.
5. Audio recording of the Madera Police Department interview with Plaintiff taken at the scene of the incident.
6. Certified tape transcription of police interview of David Romero at Madera Police Department interrogation room on 12/23/2012.
7. MAIT (Multidisciplinary Accident Investigation Team) Narrative/Diagram Supplemental Report (redacted for privacy).
8. Madera Police Department — Incident Report and Supplements — Case No. 12-02368 (12 pages) [redacted].
9. Madera Police Department — Incident Report and Supplements — Case No. 12-41659 (15 pages) [redacted].
10. CHP Form 216 — Arrest — Investigation Report File Number M18-450-12 (4 pages).
11. Government Claims form submitted by David Romero on June 6, 2013 (4 pages).
12. Aerial map of area where incident occurred for demonstrative purposes.
1. Plaintiff anticipates and plans to use the following discovery documents at trial for the purposes of cross examination, rebuttal, and impeachment:
2. Defendant anticipates and plans to use the following discovery documents at trial for the purposes of cross examination, rebuttal, and impeachment:
Discovery documents (or relevant portions thereof) may be either separately marked and indexed as a trial exhibit (as part of the exhibit marking process described above) or, if admissible, read directly into evidence.
During the course of trial, the parties' counsel shall meet with the Court each morning to advise as to which items of evidence will be used that day and which have not already been admitted into evidence. The Court will rule on any objections to the extent possible prior to the commencement of trial each day out of the presence of the jury. If such ruling depends on the receipt of testimony or other evidence, the Court will rule as appropriate upon receipt of such testimony or evidence. If evidentiary problems are anticipated, the parties' counsel are required to notify the Court immediately that a hearing outside the jury's presence will be required. During the time set for conducting the trial before the jury, the Court will not hear argument outside the jury's presence on such matters.
During the trial,
The Court respects the jury's time and expects issues that must be presented outside the jury's presence to be raised such that the jury's service is not unnecessarily protracted. To the extent possible, the parties shall raise issues that must be presented to the Court outside of the jury's presence (1) in the morning before the jury sits, (2) during breaks, (3) in the afternoon after the jury is excused or (4) during any other appropriate time that does not inconvenience the jury. For example, if evidentiary problems can be anticipated, the parties should raise the issue with the Court before the jury sits so that there is no delay associated with specially excusing the jury. Issues raised for the first time while the jury is sitting when the issue could have been raised earlier will be looked upon with disfavor and counsel may be sanctioned for any fees, costs or other expenses caused by their failure to raise the issue at a more convenient time.
The party's counsel who introduces evidence at trial shall retrieve the original exhibits from the Courtroom Deputy following the verdict in the case. The parties' counsel shall retain possession of and keep safe all exhibits until final judgment and all appeals are exhausted.
The Court ORDERS the parties' counsel to meet and confer on anticipated motions in limine and to distill evidentiary issues. The Court FURTHER ORDERS the parties to file motions in limine as to only important matters in that most evidentiary issues can be resolved easily with a conference among the Court and counsel. If, after conferring, any party chooses to file motions in limine, the party shall file and serve its motions in limine by
The parties shall file and serve any proposed jury voir dire by no later than
The parties shall serve their proposed jury instructions on one another
For those jury instructions on which the parties cannot agree,
All jury instructions shall indicate the party submitting the instruction (i.e., joint/agreed-on, Plaintiff's, or Defendant's), the number of proposed instruction in sequence, a brief title for the instruction describing the subject matter, the text of the instruction, and the legal authority supporting the instruction.
Ninth Circuit Model Jury Instructions
The parties shall, by italics or underlining, designate any modifications of instructions from statutory or case authority, or any pattern instruction, such as the Ninth Circuit Model Jury Instructions, CACI, BAJI, or any other source of pattern instructions, and must specifically state the modification made to the original form instruction and the legal authority supporting the modification.
The parties shall serve their proposed verdict form on one another by
All proposed jury instructions and verdict forms shall be e-mailed as a Word document attachment to skoorders@caed.uscourts.gov by no later than
To the extent either party has video or DVD evidence they wish to present, the only method of displaying such evidence will be through the use of the parties' laptop(s) which will be then projected to the courtroom monitors and speakers.
The parties should contact Courtroom Deputy Alice Timken
Strict compliance with this order and its requirements is mandatory. The Court will strictly enforce the requirements of this Pretrial Order, especially those portions pertaining to jury instructions and a verdict form. Counsel and the parties are subject to sanctions for failure to fully comply with this order and its requirements.
IT IS SO ORDERED.
