Foust et al v. Page, City of et al

Filing 153

ORDER: Setting firm trial date of 12/10/2014 at 9:00 a.m. for 7 days (12/10-12 and 12/16-19/2014). Final conference shall be held o 12/8/2014 at 4:30 p.m. before The Honorable David G. Campbell, 401 West Washington Street, Courtroom 603, Phoenix, A rizona 85003. Granting in part and denying in part 114 Motion in Limine; denying 115 Motion in Limine; granting 116 Motion in Limine; denying 117 Motion in Limine; granting 118 Motion in Limine; granting 119 Motion in Limine; grant ing 120 Motion in Limine; granting in part and denying in part 122 Motion in Limine; denying 123 Motion to Bifurcate; granting 128 Motion in Limine; denying 129 Motion in Limine; denying 130 Motion in Limine; denying 131 Motion in Limine.. Signed by Judge David G Campbell on 9/5/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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First Lieutenant Shannon Foust, et al.,
Plaintiffs,

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No. CV 12-08115-PCT-DGC
ORDER SETTING TRIAL

v.
City of Page, et al.,
Defendants.

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A Final Pretrial Conference was held on August 29, 2014. Counsel appeared on
behalf of Plaintiffs and Defendants.

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IT IS HEREBY ORDERED:

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1.

Trial in this matter shall begin on December 10, 2014, at 9:00 a.m.

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2.

The trial shall last 7 days (December 10-12 and 16-19, 2014). Plaintiffs

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shall be allotted 17 hours of trial time and Defendants shall be allotted 16 hours of trial

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time. The Court will keep track of each side’s time. Opening and closing statements,

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direct examination, and cross-examination shall be counted against the parties’ time.

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3.

A final conference shall be held on December 8, 2014, at 4:30 p.m. in

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Courtroom 603, Sandra Day O’Connor Federal Courthouse, 401 West Washington Street,

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Phoenix, Arizona 85003.

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4.

The parties’ proposed final pretrial order was approved by the Court as the

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final pretrial order in this case. The order shall govern the presentation of evidence and

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other trial issues, and, pursuant to Rule 16(e) of the Federal Rules of Civil Procedure,

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shall be modified only to prevent manifest injustice.

Evidence, objections, legal

arguments, and relief not requested or identified in the order shall not be available at trial,
except to prevent manifest injustice.
5.

The Court grants Plaintiffs’ Motion in Limine 1 regarding evidence about

Decedent Mr. Foust’s sovereign citizen beliefs. Doc. 128. Plaintiffs assert that Officer
Wilson was not aware of Foust’s political beliefs on the day in question, and Defendants
do not contend otherwise. The Court concludes that evidence concerning those beliefs is
irrelevant to whether Wilson acted negligently on the day in question and whether
Foust’s actions, which were observed by witnesses and captured in part on video, were a
contributory fault. The Court also concludes that the probative value of Foust’s political
beliefs is substantially outweighed by the danger of jury confusion and undue delay under
Federal Rule of Evidence 403. Defendants’ primary argument is that the evidence is
needed to counter Plaintiffs’ anticipated evidence that Foust was a peaceful, law abiding
citizen, but the Court has not ruled that such evidence is admissible. If Defendants
believe that Foust’s political beliefs become relevant during the course of trial, they may
raise the issue with the Court outside the hearing of the jury. This ruling does not
preclude evidence regarding the document Foust apparently produced and began to fill
out during the interaction with Wilson on the day in question.
6.

The Court denies Plaintiffs’ Motion in Limine 2. Doc. 129. Plaintiffs ask

the Court to approve the use of certain exhibits and exemplars during their opening
statement, but Plaintiffs apparently have not shown the specific exhibits to defense
counsel. They should do so after the final pretrial conference, and the Court will then
address any objections by Defendants at the final conference scheduled below.

In

addition, the number and nature of the exhibits suggest that Plaintiffs are planning a
lengthy opening statement designed to persuade the jury. An opening statement is not
argument, and should be limited to an overview of what the party expects the evidence to
show. More detailed attempts at persuasion should be reserved for closings.

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7.

The Court denies Plaintiffs’ Motion in Limine 3. Doc. 130. Plaintiffs ask

the Court to preclude Defendants from referring to the 911 call as a domestic violence
call. In response, Defendants quote portions of the subsequent radio exchange in which
the dispatcher refers to the call as a “domestic” and Officer Wilson refers to it as a “DV.”
In addition, once Wilson arrived at the scene, Toni Foust suggested that she had been
threatened by Foust. In light of these facts, the Court will not attempt in advance of trial
to limit the way in which counsel or witnesses describe the call. If Plaintiffs’ counsel
believes during trial that Defendants are describing the call in an unfairly prejudicial
manner, they may object and the Court will rule.
8.

The Court denies Plaintiffs’ Motion in Limine 4. Doc. 131. Plaintiffs ask

the Court to instruct the jury that the knowledge of various city employees is attributable
to the city, and to permit Plaintiffs to present evidence and argument to the jury
concerning the city’s alleged failure to disclose what various city employees knew about
Officer Wilson. The basis for this request is Defendants’ alleged failure to disclose this
information in discovery, but the written discovery requests identified by Plaintiffs
(Interrogatories 2, 5, 7, 9, and 14 and Requests for Production 1 and 4), each of which the
Court has reviewed, do not clearly call for it. Moreover, this is, in effect, a motion for
sanctions under Rule 37(d) that does not comply with Rule 37(d), nor does it address the
legal standard and level of culpability required for what would be, in effect, a request for
an adverse inference instruction.
9.

The Court grants in part and denies in part Defendants’ Motion in

Limine regarding character and other acts. Doc. 114.

Defendants’ motion concerns

several difference categories of alleged character evidence. Defendants ask the Court to
exclude the evidence under Rules 403 and 404.
a.

Ray Finley. The Court will grant the motion with respect to the

testimony and related documents of Ray Finley. Finley asserts that Officer Wilson has
targeted and harassed him for several years, following him to obtain a DUI arrest, cursing

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at him, and behaving in a threatening manner. Finley also believes Wilson stole $1,200
from him during an arrest. Finley has filed several complaints with the City, and opines
that Wilson is a petty, vindictive bully who abuses his power. Plaintiffs seek to present
this evidence to show that Wilson targets those against whom he has a grudge and did so
with respect to Foust in this case, and to show the City’s negligence in failing to control
Wilson.
The relevancy of this evidence is marginal. The evidence does not concern the
events of June 19, 2011, and its probative value with respect to Officer Wilson’s actions
on that day is very indirect. The evidence does not concern any use of force incident, and
its relevancy to the City’s negligence in retaining him is therefore also indirect with
respect to the events of June 19, 2011. The Court concludes that the probative value of
this marginally relevant evidence is substantially outweighed by the danger of unfair
prejudice. The evidence presents the clear possibility that the jury would rule against
Wilson and the City because he is a bad person.

The marginal relevancy is also

substantially outweighed by the danger of confusing the jury as to what is actually at
issue in this case, and the undue delay that would result from a mini-trial on the various
accusations made by Mr. Finley.
b.

John Barrett and Cory Johnston. For the same reasons, the Court

will grant the motion with respect to the testimony of John Barrett and Cory Johnston.
They both would testify in support of Finley’s allegations.
c.

Ernest Rubi. The Court will grant the motion with respect to Rubi’s

proposed testimony about exchanges with Wilson and the City over the construction of a
firing range, Wilson’s alleged illegal construction, Wilson’s letter to the City seeking to
have Rubi fired, and Wilson’s cursing at Rubi and his wife in a parking lot (Doc. 92-6, ¶¶
11-13 and 21). This evidence is largely irrelevant to this case and, for reasons explained
above with respect to Finley’s testimony, its probative value is substantially outweighed
by a danger of unfair prejudice, confusing the jury, and delay of the trial. The Court will

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deny the motion with respect to the topics addressed in the remainder of Rubi’s affidavit
(Doc. 92-6). The Court finds this evidence directly relevant to Plaintiffs’ claims against
the City for negligent retention and supervision of Wilson. The Court will address below
whether some of this evidence should be excluded under Rule 37(c) for non-disclosure.
d.

Jared Rubi and related exhibits. The testimony of Jared Rubi, and

various documents related to Ernest Rubi’s testimony, are offered in support of the
testimony of Ernest Rubi. The Court cannot at this time determine which portions of
Jared’s testimony and which documents would be admissible, and therefore denies the
motion with respect to Jared Rubi. The Court will rule on objections during trial.
e.

Bruce Foster and related exhibits. Bruce Foster alleges that Wilson

and other officers harassed him in 2008 by stopping his car and submitting it to a drug
search by drug-sniffing dogs. Foster wrote a letter of complaint to the City. In addition,
Foster was sued by Wilson for allegedly distributing leaflets regarding Wilson
masturbating behind a school. The Court will grant the motion with respect to Foster
and his related exhibits for the same reasons it granted the motion with respect to Finley
and his evidence.
The relevancy of this evidence is marginal. The evidence does not concern the
events of June 19, 2011, and its probative value with respect to Officer Wilson’s actions
on that day is very indirect. The evidence does not concern any use of force incident, and
its relevancy to the City’s negligence in retaining him is therefore also indirect with
respect to the events of June 19, 2011. The Court concludes that the probative value of
this marginally relevant evidence is substantially outweighed by the danger of unfair
prejudice. The evidence presents the clear possibility that the jury would rule against
Wilson and the City because he is a bad person.

The marginal relevancy is also

substantially outweighed by the danger of confusing the jury as to what is actually at
issue in this case, and the undue delay that would result from a mini-trial on the various
accusations made by Mr. Foster.

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f.

respect to this memorandum, which concerns City of Page Police Department policy
regarding transporting intoxicated juveniles and the actions of Wilson that contributed to
this policy. The memorandum and related events have no relevancy to the events at issue
in this case and are remote in time.

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g.

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Wilson’s juvenile infractions. The Court will grant the motion with

respect to these minor infractions, which have nothing to do with this case.

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April 10, 2007 memorandum. The Court will grant the motion with

h.

Flyer. The Court will grant the motion with respect to this flyer,

which relates to rumors about Wilson’s alleged inappropriate activity behind a school.
The flyer and the events related to it are inadmissible for reasons described above with
respect to witnesses Finley and Foster.
These rulings preclude not only the evidence addressed above, but questions of
witnesses about the subjects found inadmissible above.
10.

Defendants move to exclude the testimony of Ernest Rubi under Rule 37(c).

Doc. 115. Plaintiffs first disclosed Rubi as a witness in interrogatory responses provided
on June 14, 2013, about six weeks before the close of discovery. Plaintiff listed three
topics on which Rubi would testify. On January 31, 2014, Plaintiffs attached an affidavit
from Rubi to their summary judgment briefing. Doc. 92-6. The affidavit included more
subjects than Plaintiffs had disclosed during the discovery period.
The Court will deny the motion with respect to the subjects disclosed on
June 14, 2013. Under Rule 26(e), Plaintiffs were not required to include the subjects in a
supplemental Rule 26(a) disclosure in light of the fact that they had disclosed them in
interrogatory responses. See Fed. R. Civ. P. 26(e). Thus, the only nondisclosure that is
potentially subject to sanctions is the failure to disclose the additional information
revealed in Rubi’s affidavit. Plaintiffs argued at the final pretrial conference that the late
disclosure was substantially justified because the City failed to disclose efforts
undertaken by City personnel to discourage Rubi’s complaints.

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Following the final pretrial conference, the parties submitted additional documents
to the Court.

These include deposition excerpts in which the Rubi complaint was

addressed as well as the City’s internal investigation file with respect to the Rubi
complaint. After reviewing these documents, the Court concludes that they provided no
basis for Plaintiffs to understand Rubi’s allegations that he was pressured to drop his
complaint about Wilson, nor did they concern meetings and statements Rubi apparently
later described to Plaintiffs’ counsel. Rubi now lives in Colorado, and Plaintiffs’ counsel
has asserted that he did not know the details contained in Rubi’s affidavit until he located
Rubi and questioned him. The Court concludes that Plaintiffs’ counsel’s failure to
disclose the additional matters contained in the Rubi affidavit was substantially justified
by the very limited nature of the information regarding those matters contained in the
City’s file. The motion will therefore be denied.
11.

The Court grants Defendants’ Motion in Limine regarding prescription

medication. Doc. 116. Plaintiffs seek to admit evidence that Wilson has taken antianxiety medication for several years and was taking it at the time of the events at issue in
this case. Plaintiffs claim this evidence is relevant to the supervision of Wilson by Chief
Dennis – who apparently did not know about the medication – and Wilson’s credibility.
Plaintiffs do not argue that the medication affected Wilson’s behavior during the events
at issue in this case. The Court finds this evidence to be irrelevant. It has no bearing on
what occurred on June 19, 2011. Even if it could be viewed as having some marginal
relevance to Chief Dennis’ supervision of Wilson, the Court concludes that such marginal
relevance would be substantially outweighed by the danger of unfair prejudice, jury
confusion, and delay of the trial under Rule 403.
12.

The Court denies Defendants’ Motion in Limine regarding Plaintiffs’

expert (Doc. 117), but with some observations. Defendants argue that several opinions
provided during the expert’s deposition were not disclosed in the expert’s report and
therefore must be excluded. The Court does not agree. The Court rigorously holds

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experts to what is disclosed in their reports, but when opposing counsel open the door to
the additional opinions in a deposition, those opinions are disclosed in the expertdisclosure process and may be used at trial. The Advisory Committee Notes to Rule 26
make clear that the purpose of Rule 26(b)(2)(B) reports is to reveal the experts testimony
and, in many cases, to do away with the need for a deposition. Yet counsel too often not
only choose to depose an expert, but also to elicit additional opinions from the expert.
Counsel need not do so.

Depositions, if truly required, can be taken on disclosed

opinions without eliciting new opinions.

When new opinions are invited during a

deposition, the Court’s practice is to permit their introduction at trial.
The Court cannot at this stage determine which opinions by the experts will be
admissible and which will not be. Those decisions must be made in the context of trial
and in light of relevant objections. But the Court does have a few observations. It is not
proper for experts to opine on or interpret the law. If the parties wish to have the jury
instructed on the law, they should seek an instruction from the Court. It is true, however,
that some expert opinions necessarily intersect with legal principles. Whether such
opinions cross the line into advising the jury on the law is a question that must be
determined during trial. In addition, police practices experts generally are not, on the
basis of that expertise, qualified to opine on the reasonableness of actions by regular
citizens. That issue generally is for the jury to decide. Police practices experts may
testify, however, about how officers should respond to citizen actions and which citizen
actions they are trained to anticipate.
13.

The Court grants Defendants’ Motion in Limine regarding shooting

dynamics. Doc. 118. The motion seeks to prevent the medical examiner from providing
expert opinions under Rule 702 about the manner in which Foust was shot and how he
was standing when shot. Plaintiffs state in their response that they do not intend to elicit
such Rule 702 opinions. Nor could they, given their failure to disclose them under
Rule 26(a)(2)(A) and (C).

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This ruling does not prevent Plaintiffs from presenting factual testimony through
the medical examiner concerning the results of his autopsy. Nor does it prevent Plaintiffs
from arguing to the jury that the left-side entry wound found in the autopsy is consistent
with Foust turning away from Wilson at the point of the shooting, and inconsistent with
Wilson’s testimony that Foust was charging.
14.

The Court grants Defendants’ Motion in Limine regarding undisclosed

witnesses and photographs. Doc. 119. Plaintiffs do not dispute that witnesses Costello
and Scheel and the Costello photographs were not disclosed as required by Rule 26(a),
nor do they argue that their late disclosure was substantially justified or harmless. The
witnesses and exhibits therefore may not be used at trial under Rule 37(c)(1).
15.

The Court grants Defendants’ Motion in Limine regarding opinion

testimony of Shannon Foust. Doc. 120. Plaintiffs assert in response to the motion that
Shannon Foust may provide lay opinion testimony on what Officer Wilson should have
done during the confrontation with her deceased father, but they do not (1) dispute that
they failed to identify this subject of Ms. Foust’s testimony in their Rule 26(a)(1)(A)
disclosures or in any supplements, (2) dispute that Ms. Foust stated during her deposition
that she had no other information relevant to this case, or (3) argue that their late
disclosure of this subject is substantially justified or harmless. Under Rule 37(c)(1),
Plaintiffs may not have Ms. Foust testify about this subject at trial.1
16.

The Court grants in part and denies in part Defendants’ Motion in

Limine regarding the decedent’s alleged pre-death pain and suffering.

Doc. 122.

Defendants seek to exclude evidence of any damages based on the decedent’s pre-death
pain and suffering. Plaintiffs do not oppose that part of the motion, conceding that they

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Following the final pretrial conference, Plaintiffs filed a supplement response
with respect to this motion. Doc. 151. The supplemental response attaches excerpts from
Ms. Foust’s deposition in which she describes her general views as to why she has sued
Defendants. The excerpts do not alter the Court’s ruling. They simply reflect her
understanding of the nature of the claims in this case and do not include opinion
testimony about whether or how Officer Wilson should have defused the situation.
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cannot recover for Mr. Foust’s pain and suffering. The Court will not, however, preclude
Plaintiffs from asserting, and presenting evidence, that Wilson’s actions after the
shooting reflected indifference to Mr. Foust’s condition.

This includes evidence

regarding Mr. Foust’s moaning and heavy breathing while Wilson was still at the scene.
The Court finds this evidence relevant to Wilson’s actions during the events in question,
and does not find that its probative value is substantially outweighed by the danger of
unfair prejudice. The Court will instruct the jury that their decision is to be based on the
evidence, not on any opinion, prejudice, or sympathy.
17.

The Court denies Defendants’ Motion to Bifurcate. Doc. 123. Defendants

argue that evidence related to the negligent supervision claim will unduly prejudice the
jury in deciding the wrongful death claim. Given the Court’s efforts to narrow and focus
the evidence and issues in the above rulings, and the presumption (and the Court’s
experience) that juries follow instructions and segregate evidence where required, the
Court does not agree. The Court concludes that the most efficient resolution of this case
will be in a single trial.
18.

Dennis Deposition.

The Court has reviewed the transcript from the

discovery conference call held on September 11, 2013. During that call Plaintiffs’
counsel raised the fact that Chief Dennis was not prepared for his deposition and was
unable to recall most of the matters related to this case. The Court suggested during the
call that Plaintiffs address that issue in a motion in limine. Plaintiffs raised it at the final
pretrial conference.

Unless Defendants are willing to agree that Chief Dennis will

provide no more information about this case in his trial testimony than he provided in his
deposition, the Court concludes that Plaintiffs should be afforded an opportunity to
depose him before trial. Defense counsel shall notify Plaintiffs’ counsel within seven
days of this order whether they intend to have Chief Dennis testify about matters at trial
that he could not recall during his deposition. If so, Plaintiffs may take a trial deposition,
at a time agreed upon by the parties, after Chief Dennis has prepared for his trial

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testimony.
19.

The parties shall hold a settlement conference with Magistrate Judge Burns

on or before October 31, 2014.

The parties promptly shall notify the Court if a

settlement is reached.
Dated this 5th day of September, 2014.

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