Morgal v. Jacobs et al

Filing 183

ORDER granting 127 Motion in Limine No. 1 to Preclude Plaintiffs Expert Eldon Vails Opinions and Report; granting 130 Motion in Limine No. 4 to Preclude Admission of Racial Disparity Testimony; granting 136 Motion in Limine #1: to Exclude Expe rt Opinions of Cameron Lindsay; granting in part and denying in part 137 Motion in Limine #2: to Exclude Evidence of Irrelevant Instances of Conduct and Discipline of Plaintiff Allan K. Morgal, and; granting in part and denying in part 141 Motion in Limine #6: to Exclude Criminal History.(CKJ, ej)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 Allan K. Morgal, 10 Plaintiff, 11 vs. 12 Edward Williams, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) No. CV 12-280-TUC-CKJ ORDER 15 Pending before the Court are the issues taken under advisement by the Court 16 during the March 29, 2016, hearing as presented in Defendant’s Motion in Limine No. 17 1 to Preclude Plaintiff’s Expert Eldon Vail’s Opinions and Report (Doc. 127), Plaintiff’s 18 Motion in Limine #1: to Exclude Expert Opinions of Cameron Lindsay (Doc. 136), 19 Plaintiff’s Motion in Limine #2: to Exclude Evidence of Irrelevant Instances of Conduct 20 and Discipline of Plaintiff Allan K. Morgal (Doc. 137), Defendant’s Motion in Limine 21 No. 4 to Preclude Admission of Racial Disparity Testimony (Doc. 130), and Plaintiff’s 22 Motion in Limine #6: to Exclude Criminal History (Doc. 141).1 23 24 25 1 26 27 28 The Motion in Limine #2 to Preclude Witness Shane Evans and Preclude Admission of Evans' Witness Statement (Doc. 128), the Motion in Limine # 3 to Preclude Admission of Affidavit and Witness Statement of Andy Velasquez (Doc. 129), and the Motion in Limine #4: Daubert Motion to Exclude "Expert" Testimony of Rowena Geraldoy (Doc. 139) are also pending. The Court will address these motions at the time of trial. 2 Defendant's Motion in Limine No. 1 to Preclude Plaintiff's Expert Eldon Vail's Opinions and Report (Doc. 127) and Plaintiff's Motion in Limine #1: to Exclude Expert Opinions of Cameron Lindsay (Doc. 136) 3 The Federal Rules of Evidence provide when expert testimony may be appropriate: 4 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 1 5 6 7 8 Fed.R.Evid. 702. 9 When an objection to an expert's testimony is raised, the court must perform 10 Daubert gatekeeper duties before the jury is permitted to hear the evidence. Daubert v. 11 Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2795, 125 12 L.Ed.2d. 469 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149, 119 S.Ct. 13 1167, 1175, 143 L.Ed.2d 238 (1999); Elsayed Mukhtar v. California State University, 14 Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002), amended en banc at 319 F.3d at 1073 (9th 15 Cir. 2003). The Ninth Circuit has held that a trial court may make a determination as to 16 a proposed expert’s qualifications, the relevance of the testimony, and the reliability of 17 the testimony without a hearing. United States v. Alatorre, 222 F.3d 1098, 1101-02 (9th 18 Cir. 2000). Indeed, this latitude allows a trial court to decide what proceedings, if any, 19 are required to determine reliability. Alatorre, 222 F.3d at 1103; see also Hangarter, 676 20 F.3d at 1018 (trial court satisfied gatekeeping duties by probing the extent of expert's 21 knowledge and experience of expert in pre-trial rulings and during voir dire). 22 In this case, the parties agree that each other’s expert is qualified. However, they 23 question whether the other’s proposed expert testimony is relevant. Although each expert 24 proposes to testify as to factors to consider in weighing the credibility of Allan K. Morgal 25 (“Morgal”) and Edward Willaims (“Williams”), they also propose to testify as to the 26 excessive force. It appears such expert testimony is generally not appropriate: 27 28 Although not necessarily barred by Fed.R.Evid. 704(a), expert testimony as to the -2- 3 reasonableness of the officer's action is only admissible to the extent that it will assist the trier of fact . . . Additionally, the Court is under a duty to avoid the needless waste of time in presentation of evidence and to avoid any unfair prejudice that substantially outweighs the probative value of the evidence, or which could mislead the jury in the same fashion, Fed.R.Evid. 611(a) and 403. 4 Wells v. Smith, 778 F.Supp. 7 (D.Md. 1991). Further, "[t]he question of reasonableness 5 is quintessentially a matter of applying common sense and the community sense of the 6 jury to a particular set of facts and, thus, it represents a community judgment. It would 7 interfere inappropriately with that judgment process, mandated by Graham v. Connor, to 8 allow expert testimony as to what reasonableness is, either abstractly or as applied." Id. 9 However, some courts have determined that such testimony is admissible. See e.g., Davis 10 v. Mason County, 927 F.2d 1473 (9th Cir. 1991) (superceded by statute on other grounds) 11 (expert permitted to testify that sheriff was "reckless" in failing to train deputies and that 12 there was a causal link between that recklessness and plaintiff's injuries); Samples v. City 13 of Atlanta, 916 F.2d 1548 (11th Cir. 1990). The critical issue in this case is the credibility 14 of Morgal and Williams – a “classic ‘he said- he said’ scenario, which is to be resolved 15 by a jury.” Nixon v. Greenup Cty. Sch. Dist., 890 F. Supp. 2d 753, 760 (E.D. Ky. 2012), 16 (discussing whether summary judgment was appropriate). Moreover, this case does not 17 present complex facts. For the jury to decide if the force used by Williams was excessive, 18 the jury can apply the common and community sense of the jury to the facts to reach a 19 decision. The Court will grant the motions to preclude the expert testimonies of Cameron 20 Lindsay and Eldon Vail. 1 2 21 22 Plaintiff's Motion in Limine #2: to Exclude Evidence of Irrelevant Instances of Conduct and Discipline of Plaintiff Allan K. Morgal (Doc. 137) 23 During the March 29, 2016 hearing, the Court determined that evidence of what 24 occurred during the incident between Morgal and Williams, including racial comments, 25 is admissible at trial. The Court also determined that evidence of the subsequent 26 disciplinary proceedings is precluded from use at trial, with the exception of statements 27 28 -3- 1 by Morgal. Additionally, the Court finds that evidence as to Morgal’s beliefs as to 2 whether he believed Williams’ conduct was racially motivated is relevant and admissible 3 at trial. 4 As to testimony regarding statements made by Morgal to Dr. Lewis requesting a 5 bottom bunk and receiving fiber from the medical unit rather than purchasing it from the 6 commissary, this evidence is probative of Morgal’s character for truthfulness or 7 untruthfulness. The Court finds such evidence is admissible pursuant to Fed.R.Evid. 8 608(b) (“specific instances of a witness's conduct . . . may, on cross-examination . . . be 9 inquired into if they are probative of the character for truthfulness or untruthfulness). 10 However, as these incidents are not criminal convictions, extrinsic evidence of the 11 specific instances of conduct are not admissible. Id. Further, the Court finds only brief 12 inquires into these areas is appropriate under Fed.R.Evid. 403. 13 As to whether Morgal’s conduct as a “jailhouse lawyer” as to this incident is 14 admissible, the Court finds such evidence to be relevant and admissible. “Evidence is 15 relevant if (a) it has any tendency to make a fact more or less probable than it would be 16 without the evidence; and (b) the fact is of consequence in determining the action.” 17 Fed.R.Evid. 401. Thus, “evidence is relevant if it has ‘any tendency to make the 18 existence of any fact that is of consequence to the determination of the action more 19 probable or less probable than it would be without the evidence.’” United States v. 20 Espinoza-Baza, 647 F. 3d 1182, 188 (9th Cir. 2011). Evidence of Morgal’s conduct (e.g., 21 allegedly being in possession of other prisoner’s legal papers) is relevant to show 22 Morgal’s motive and intent during the meeting between Morgal and Williams. See 23 Fed.R.Evid. 404(b). Further, such evidence places the incident between Morgal and 24 Williams in context. However, the Court does not find that the title “jailhouse lawyer” 25 is relevant; further, any probative value is substantially outweighed by the danger of 26 unfair prejudice. Fed.R.Evid. 403. However, should Morgal present evidence of his 27 status as a “jailhouse lawyer,” Defendant may then use this title to describe Morgal’s 28 -4- 1 status. 2 Additionally, the evidence of Morgal’s prior lawsuits against his alleged victims 3 is relevant to show motive and lack of mistake under Fed.R.Evid. 404(b). However, the 4 Court finds the probative value of the evidence is substantially outweighed by a danger 5 of unfair prejudice and confusion of the issues. Fed.R.Evid. 403. Therefore, this 6 evidence may not be introduced at trial except in rebuttal. 7 8 Motion in Limine # 4 to Preclude Admission of Racial Disparity Testimony (Doc. 130) 9 Morgal agrees with Williams that observations Morgal made regarding racially 10 disparate treatment are not relevant. However, he asserts that, if the defense is permitted 11 to present evidence of racial statements made by Morgal, he should be able to present this 12 evidence. However, the Court finds this evidence is not statistically reliable nor does it 13 make a fact more or less probable than it would be without the evidence. The Court will 14 grant this motion. 15 16 Motion in Limine #6: To Exclude Criminal History (Doc. 141) 17 Morgal requests the Court to limit the use of the prior convictions of Morgal. 18 According to Morgal, he has been sentenced to prison at least four times. He was in 19 prison in Minnesota in the early 1980's and then was extradited to Arizona. He was 20 committed to the ADC’s custody from November 1984 to August 1985 for a fraudulent 21 insurance claim committed in 1982. Morgal was imprisoned in Colorado in the mid 22 1980's for fraud and theft before being extradited again to Arizona. He was then 23 committed to the ADC’s custody from March 1990 to December 1993 for fraudulent 24 schemes and artifices committed in 1986. Morgal is currently serving a 22 year sentence 25 for 2006 convictions for fraudulent schemes and artifices, thefts, and money laundering 26 committed between 2003 and 2004. 27 28 Evidence of felony convictions that are less than ten years old are admissible to -5- 1 attack a witness’s credibility. See Fed.R.Evid. 609.2 Indeed, evidence of a felony 2 conviction less than ten years old is not subject to an inquiry into whether the elements 3 of the crime involved a dishonest act or false statement. Fed.R.Evid. 609(a)(1)(A). The 4 Court finds Morgal’s 2006 convictions may be used. Because the Court does not have 5 any conviction documents before it, based on the titles of the convictions and the 6 descriptions by Morgal during his deposition, the Court finds the 1984 conviction for a 7 fraudulent insurance claim and the 1990 fraudulent schemes and artifices conviction 8 involved dishonest acts. Fed.R.Evid. 609(a)(2). Further, the probative value of these 9 convictions substantially outweighs any prejudicial effect. Specifically, this evidence 10 shows a pattern of dishonest acts, rather than presenting evidence that would indicate a 11 one-time dishonest event. However, the Court limits the use of the convictions to their 12 dates and titles. The probative value of the details of the convictions does not outweigh 13 any unfair prejudice. The Court finds Morgal’s other convictions may not be used. 14 Additionally, witnesses Evans and Velasquez may be impeached with their felony 15 conviction if ten years or less have passed since each witness’s conviction or release from 16 confinement for it, whichever is later. 17 Accordingly, IT IS ORDERED: 18 1. 19 20 21 22 23 Defendant’s Motion in Limine No. 1 to Preclude Plaintiff’s Expert Eldon Vail’s Opinions and Report (Doc. 127) is GRANTED. 2. Plaintiff’s Motion in Limine #1: to Exclude Expert Opinions of Cameron Lindsay (Doc. 136) is GRANTED. 3. Plaintiff’s Motion in Limine #2: to Exclude Evidence of Irrelevant Instances of Conduct and Discipline of Plaintiff Allan K. Morgal (Doc. 137) is GRANTED IN 24 25 2 27 If more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later, Fed.R.Evid. 609(b), the evidence is admissible only if “its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect” and adequate notice of the intent to use the evidence is given. 28 -6- 26 1 2 3 4 PART AND DENIED IN PART. 4. Defendant’s Motion in Limine No. 4 to Preclude Admission of Racial Disparity Testimony (Doc. 130) is GRANTED. 5. Plaintiff’s Motion in Limine #6: to Exclude Criminal History (Doc. 141) is 5 GRANTED IN PART AND DENIED IN PART. 6 DATED this 4th day of April, 2016. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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