Williams et al v. Troehler

Filing 70

FINAL PRETRIAL ORDER, signed by Judge Oliver W. Wanger on 7/27/2010. (Gaumnitz, R)

Williams et al v. Troehler

Doc. 70

1 2 3 4 5 6 7 8 9 10 11 12 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Undisputed Facts 1. At all times relevant to this action, Defendant Michael 1. 1. I. JURISDICTION AND VENUE v. MICHAEL J. TROEHLER, City of Fresno Police Officer, RANDALL EDGAR WILLIAMS, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-1523 OWW GSA FINAL PRETRIAL ORDER Motion in Limine Date: 8/20/10 11:00 Ctrm. 3 Trial Date: 8/31/10 9:00 Ctrm. 3 (JT-5 days) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Jurisdiction exists under 28 U.S.C. § 1331 and 42

U.S.C. § 1983, et seq. II. JURY/NON-JURY

The parties request a jury trial on all triable issues. III. FACTS

Troehler was acting in the course and scope of his employment as a police officer for the City of Fresno, and acting under color of law. 2. On August 25, 2006, Defendant issued Plaintiff a 1

Dockets.Justia.com

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citation for violation of California Vehicle Code §§ 22350 (speeding); 52002 (no plates); 76028a (no insurance); and California Penal Code § 148a (delaying, resisting and obstructing an officer in the performance of his duties). 3. Following his arrest, Plaintiff was taken by Defendant

to University Medical Center for medical attention. B. Disputed Facts 1. Whether the force used by Defendant Troehler was

objectively reasonable under the circumstances he confronted, from the perspective of a reasonable police officer on the scene. 2. 3. damages. 4. Whether Defendant Troehler's acts were malicious, Whether Plaintiff resisted arrest. The nature and extent of Plaintiff's injuries and

oppressive, or in reckless disregard of Plaintiff's rights. IV. A. DISPUTED EVIDENTIARY ISSUES

Plaintiff's Anticipated Motions in Limine. 1. 2. To preclude evidence not produced in discovery. To preclude improper comments regarding damages,

including any inquiry, comment or argument before the jury that suggests jurors as taxpayers will be paying the amount of any damages awarded. 3. 4. To preclude evidence of collateral payments. To preclude Defendant's retained experts, Harold L.

Seymour, Ph.D., and Paul J. Markovitz, M.D., Ph.D., from opining with regard to Plaintiff's bipolar disorder or his medication. 5. To preclude Defendant's retained experts from

testifying at trial as to ultimate facts, the credibility of 2

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witnesses, legal conclusions, past experiences or claims of success; and from giving opinions that lack foundation. 6. To preclude evidence of any other lawsuits or claims

made by or against Plaintiff, including but not limited to the criminal prosecution arising out of the subject incident. 7. To preclude evidence including questions regarding

Plaintiff's prior contacts with law enforcement for any reason, or disputes with other persons. 8. To exclude confidential medical records and testimony

concerning injuries or conditions unrelated to the claims made in this action. 9. 10. To exclude post-incident investigation reports. To exclude evidence relating to Plaintiff's liability

expert, Darren Hise's personnel actions and pending litigation. 11. To exclude evidence relating to any purported incident

of domestic violence involving Plaintiff or his wife; 12. To exclude witnesses not disclosed timely in discovery

or pursuant to Rule 26. 13. To exclude evidence relating to any purported substance

abuse by Plaintiff. 14. Plaintiff reserves the right to file any other

necessary motions in limine in accordance with the schedule set by the court. B. Defendant's Anticipated Motions in Limine. 1. 2. To preclude evidence not produced in discovery. To preclude improper comments regarding damages

including any inquiry, comment or argument before the jury that suggests that jurors should base plaintiffs' damages on an amount 3

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that the jurors would charge to endure similar injuries. 3. 4. To preclude evidence of liability insurance. To preclude evidence of indemnification of Defendant

Officer Troehler by his employer. 5. To exclude Plaintiff's retained expert, Darren Hise,

from rendering opinions regarding police practices and procedures based on lack of qualifications to do so. 6. To preclude Plaintiff's retained expert from testifying

at trial as to ultimate facts, the credibility of witnesses, legal conclusions, past experiences or claims of success; and from giving opinions that lack foundation. 7. To preclude evidence of any other lawsuits against

Defendants, or any other City of Fresno Police Department Officer. 8. To preclude evidence that is protected by California

Penal Code § 832.7 and § 832.8, and California Evidence Code § 1040 and § 1043, and the officers' rights to privacy, including questions regarding personnel matters, prior complaints concerning job performance or prior disciplinary issues as to the Defendant officer or any other City of Fresno Police Department officer who testifies in this matter. 9. Defendants reserve the right to file any other

necessary motions in limine in accordance with the schedule set by the court. V. A. Plaintiffs. 1. Plaintiff contends that he was beaten by Defendant SPECIAL FACTUAL INFORMATION

Troehler and sustained injuries to his head, left ear, and neck 4

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as a result of the beating and to his right wrist by reason of the handcuffs as used by Defendant Troehler. 2. Plaintiff was transported from the scene to UMC Prior to being transported, photographs

following the incident.

were taken of Plaintiff's head and face depicting injuries to his face, the left side of his head and neck, his left and left shoulder. Plaintiff next sought medical care for matters which

he relates to the incident in December 2006 for left ear pain. Then in March of 2007 when he saw his family practitioner, Dr. Sukhbir Manjal who at that time ordered x-rays of his wrist and MRI of his neck. 3. The MRI revealed severe degenerative disc disease at Soon

C6-7 and he was referred to Dr. Ali Najafi, a neurosurgeon. thereafter, Dr. Najafi performed a cervical fusion which procedure was necessitated by the degenerative condition of Plaintiff's neck, not the subject incident. 4.

Plaintiff was also referred to Dr. Hongshik Han, a hand Plaintiff had arthritic changes in both

and plastic surgeon.

wrists but left wrist joint was essentially destroyed, most of the ligament was torn off and worn, indicating it was a chronic condition. The right wrist had a tear but there was no evidence

of degeneration, so Dr. Han believed it was relatively recent in origin. In June 2007, Dr. Han performed a right wrist

arthroscopy which revealed a right ligament tear but no arthritis which indicated that the ligament could be repaired. could not be done until after the cervical fusion. The repair In January

2008, Dr. Han surgically repaired the torn ligament and reinforced it with wires and pinned the wrist to allow the 5

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ligament to recover. 5. Williams was placed in a cast while his wrist was He had problems with the cast and the wires. His

recovering.

recovery was difficult and he removed some of the wires himself. He reinjured his hand. In October 2008, Dr. Han performed what

he referred to as a "salvage" procedure, a proximal row carpectomy, on the right wrist which involves removal of four bones in the wrist reducing it to a single joint. The surgery

was successful in dramatically reducing if not eliminating the right wrist pain. 6. In connection with the above summarized injuries and

treatment, Plaintiff is claiming the following expenses: University Medical Center (08/25/06) CCFMG (08/25/06) Calif. Imaging Institute (03/08/07) Hongshik Han, M.D. (05/03/07) Pacific Medical (05/03/07) Clovis Community Hospital (06/18/07) Clovis Community Hospital (06/22/07) Hongshik Han, M.D. (06/26/07) Hongshik Han, M.D. (11/27/07) Hongshik Han, M.D. (12/27/07) Clovis Community Hospital (01/10/08) Clovis Community Hospital (01/14/08) Hongshik Han, M.D. (01/15/08) Hongshik Han, M.D. (01/29/08) Advanced Medical Imaging (03/31/08) Hongshik Han, M.D. (05/29/08) 6 $ $ $ $ $ $ 293.11 154.00 343.00 658.00 200.00 558.70

$6,394.08 $1,450.00 $ $ 250.00 155.00

$1,173.85 $11,321.95 $2,550.00 $ $ $ 100.00 92.00 155.00

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B.

Clovis Community Hospital (10/21/08) Clovis Community Hospital (10/24/08) Hongshik Han, M.D. (10/28/08) Advanced Medical Imaging (12/02/08) Hand to Shoulder Rehabilitation Community Medical Providers (Sukhbir Manja, M.D) Sears Optical TOTAL Defendants 1.

$

334.99

$8,666.60 $5,150.00 $ 92.00

$8,013.00

$ $

240.00 399.98

$48,745.26

When Plaintiff was seen at University Medical Center

following the incident he was noted to have a superficial laceration to his right eyebrow and abrasion. He did not He returned He did not

complain of neck pain, wrist pain or shoulder pain. to work immediately after his release from custody.

seek further medical treatment until December of 2006, four months after his arrest. 2. Medical records reveal that Plaintiff had prior

complaints of the same nature as his complaints after the incident. Prior to the incident he was seen for neck and arm He was also seen for

pain, and a bulging disc in his neck.

problems related to both hands; and had carpal tunnel surgery in 1998. Plaintiff's surgeon, Dr. Han, testified that Mr. Williams

has an explosive personality to the point where Dr. Han and his staff had concerns that Plaintiff would become violent. At one

point during his recovery from surgery, Mr. Williams became so angry he pounded his truck with his fist, damaging a wire that Dr. Han had inserted into his wrist during surgery. 7 According to

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Dr. Han, Plaintiff's violent reaction prevented his wrist from healing thereby necessitating a second surgery. 3. Plaintiff has a long history of taking numerous

addictive controlled substances including Vicodin, Valium, Darvon and Darvocet; and a history of being prescribed multiple psychotropic medications. Defense experts in psychology and

psychopharmacology concur that Mr. Williams has borderline personality disorder. Borderline personality presents with

extreme anger problems, bouts of depressed mood, anxiety and impaired judgment. Individuals with this disorder tend to feel

persecuted for no reason, are highly and inappropriately reactive to stress and tend to over-respond with rage and anger. Mr.

Williams' problems with anger are well documented in the medical records and prior and subsequent contacts with law enforcement. VI. 1. RELIEF SOUGHT

Plaintiff seeks general damages, special damages,

punitive damages, attorneys' fees pursuant to 42 U.S.C. § 1988, and costs of suit. 2. Defendant seeks a defense verdict, and costs of suit

and attorney's fees pursuant to 42 U.S.C. § 1988 should he prevail in this action. VII. A. DISPUTED ISSUES OF LAW

Plaintiffs Summary of Claims. 1. Plaintiff is making three legal claims, all arising out

of the same set of facts, to wit: (1) civil rights violation pursuant to 42 U.S.C. § 1983 for excessive force; (2) assault and battery; and (3) negligence. /// 8

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Excessive Force. 2. Every person has the right not to be subjected to

unreasonable or excessive force while being arrested, even though such arrest is otherwise made in accordance with due process. While an officer has a right to use such force as is necessary under the circumstances to effect the arrest, the degree of force is limited to that which a reasonable and prudent officer would have applied under the circumstances disclosed in the case. 3. Whether the force used was unnecessary, unreasonable or

violent is an issue to be determined in light of all the surrounding circumstances. Factors to consider in determining

whether an officer used excessive force are the severity of the crime at issue, whether the Plaintiff posed a reasonable threat to the safety of the officer or others, and whether the Plaintiff was actively resisting detention or attempting to escape. Jury Instructions, 9th Circuit, No. 11.4). 4. It is Plaintiff's contention that Defendant's (Model

initiation of force and continued use of force upon Plaintiff in connection with this traffic stop was unnecessary and unreasonable. Plaintiff did not actively resist detention nor

attempt to escape. Assault and Battery. 5. Under California law, as set out in CACI 1305, battery

by a police officer requires Plaintiff establish the following: a. b. Plaintiff; c. That Plaintiff did not consent to the use of that 9 That Defendant intentionally touched Plaintiff; That defense used unreasonable force to arrest

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force; d. e. That Plaintiff was harmed; and That Defendant's use of unreasonable force was a

substantial factor in causing Plaintiff's harm. 6. A person being arrested has a duty not to use force to

resist the officer unless the officer is using unreasonable force. In deciding whether Defendant used unreasonable force,

the jury must determine the amount of force that would have appeared reasonable to a police officer in Defendant's position under the same or similar circumstances and should consider the following factors, among others: (1) the seriousness of the crime at issue; (2) whether Plaintiff reasonably appeared to pose an immediate threat to the safety of Defendant; and (3) whether Plaintiff was actively resisting arrest or attempting to evade arrest. 7. (CACI 1305). Plaintiff contends that at the time Defendant initiated

his use of force, Plaintiff was attempting to comply with Defendant's demand for evidence of insurance. threatened Defendant, verbally or by gesture. Plaintiff had not Defendant

continued to use force, striking Plaintiff about his head and neck, while Plaintiff was on the ground and not doing anything except trying not to get injured. Plaintiff made no effort to

strike back or otherwise threaten Defendant; Plaintiff engaged in no force whatsoever. 8. California Penal Code § 834a provides that a person who

"should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force of any weapon to resist such arrest." 10 Plaintiff did not

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use any force nor any weapon. Negligence. 9. Under California law, to prevail on a theory of

negligence, Plaintiff must establish that Defendant was negligent; that Plaintiff was harmed; and that Defendant's negligence was a substantial factor in causing Plaintiff's harm. (CACI 400). A person is negligent if he does something that a

reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. 10. (CACI 401).

Defendant undertook the use of force when he knew that

Plaintiff was still trying to eliminate the issue of his insurance. Defendant did not explain to Plaintiff that if he In failing to

refused to sign the citation he would be arrested.

explain to Plaintiff the consequence of refusing to sign the citation, Defendant created the need to physically arrest Plaintiff. There is no evidence Plaintiff heard or understood he

was being placed under arrest when he pulled his arm away from Defendant, who was grabbing him from behind. Defendant used

force to trip Plaintiff onto the ground and then started kneeing him about his head and neck until he could get Plaintiff's arms out from underneath Plaintiff's body and put handcuffs on him. B. Defendants Federal Claims. Fourth Amendment Unreasonable Search and Seizure Claim. 1. Plaintiff claims that Officer Troehler used excessive Under the

force in affecting his arrest on August 25, 2006.

Fourth Amendment, a police officer may use such force that is 11

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objectively reasonable under the totality of the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). An unreasonable

seizure occurs when a law enforcement officer uses excessive force in making a lawful arrest. Factors to consider in

determining whether an officer used excessive force are the severity of the crime at issue, whether the Plaintiff posed a reasonable threat to the safety of the officer or others, and whether the Plaintiff was actively resisting detention or attempting to escape. Blanford v. Sacramento County, 406 F.3d An officer need not avail himself of

1110, 1115 (9th Cir. 2005).

the least intrusive means of responding to a situation; he need only act within a range of conduct that is reasonable. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). 2. Plaintiff was confrontational from the onset of his He was subject to arrest when he Scott v.

contact with Officer Troehler.

refused to sign the traffic citation and walked away from Officer Troehler. Officer Troehler told him he was under arrest and

attempted to take him into custody by grabbing his arm, but Plaintiff pulled away, escalating the situation. Plaintiff

continued to resist after Troehler took him to the ground. Officer Troehler was concerned because Plaintiff had a sharp edged tool on him; and there were other subjects that could possibly intervene. quickly. He needed to get the situation under control

He applied 2-3 knee strikes to the side of Plaintiff's As soon as Mr.

head to distract Williams and gain control.

Williams stopped resisting, Officer Troehler stopped striking him and applied the handcuffs. It is Defendant's contention that

under the totality of the circumstances, the force used was 12

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necessary and reasonable. Qualified Immunity Defense. 3. Qualified immunity protects Section 1983 defendants

"from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Fitzgerald, 457 U.S. 800, 818 (1982). Harlow v.

"As the qualified immunity

defense has evolved, it provides ample protection for all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). 4. The threshold question which a court must consider in

ruling upon the defense of qualified immunity is, "[t]aken in the light most favorable to the party asserting injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001). If the

Plaintiff's factual allegations establish a violation of the Plaintiff's federal rights, then the court must proceed to the second determination as to whether the right was "clearly established." Cir. 2001). 5. It is Defendant's position that a reasonable officer in Id.; Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th

Officer Troehler's position could have believed that the force used was lawful under the circumstances. Punitive Damages. 6. Plaintiff is seeking an award of punitive damages.

Punitive damages are only proper under 42 U.S.C. § 1983 when the Defendant's conduct is shown to be motivated by evil motive or intent when it involves a reckless or callous indifference to 13

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federally protected rights of others. 30, 56 (1983).

Smith v. Wade, 461 U.S.

Defendant submits that there is no evidence to

support plaintiff's claim for punitive damages. State Claims. Assault and Battery. 7. An officer is entitled to use reasonable force to

detain a person when he or she has reasonable cause to believe that person has committed a crime. proving unreasonable force. Plaintiff has the burden of

Edson v. City of Anaheim, 63

Cal.App.4th 1269, 1272 (1998). 8. An officer who makes or attempts to make an arrest is

not required to retreat or cease from his or her efforts because of the resistance or threat of resistance of the person being arrested. California Penal Code § 835a. Negligence. 9. The elements of a negligence claim are: (1) a legal

duty to conform to a standard of conduct to protect the plaintiff; (2) a failure to meet this standard of conduct; (3) causation; and (4) damages. Cal.4th 913, 917 (1996). Ladd v. County of San Mateo, 12

Defendant contends that he acted as a

reasonable officer would act under similar circumstances. VIII. 1. ABANDONED ISSUES

Plaintiff withdrew his claim for intentional infliction

of emotional distress (third claim for relief) when Defendant filed a motion to compel disclosure of psychiatric records and an independent psychiatric examination. Defendant was denied the

discovery requested based on Plaintiff's withdrawal of this claim. Plaintiff is also not making a claim for business losses. 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// 12. 13. 11. 10. 9. 8. 7. 6. 5. 4. 3. 2. A. Plaintiffs 1.

IX.

WITNESSES

Edward Brady 31 E. Saginaw #20 Fresno, CA John Camacho 3325 W. Church Fresno, CA Eduardo Cerda 646 N. Virginia Farmersville, CA Dr. Hongshik Han 7005 N. Maple Avenue Fresno, CA Darren Hise P. O. Box ____ Merced, CA Robert Hooks 4591 N. Blackstone Fresno, CA Dr. Sukhbir S. Manjal 1570 E. Herndon Fresno, CA Mark Paulson 5250 N. Brooks Fresno, CA Able Ramirez 3835 N. Thorne Fresno, CA Jesus Rios 564 S. Cedar Fresno, CA Christina Servin 3040 N. Bliss Fresno, CA Michael Troehler Randall Williams 132 N. Peach Clovis, CA

15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 B.

14.

Sandra Williams 132 N. Peach Clovis, CA

Defendants 1. Eduardo Cerda 646 N. Virginia Farmersville, CA Alberto Jiminez 17504 W. Shaw Kerman, CA 93630 (last known address) Robert Oldham 9835 N. Backer Ave. Fresno, CA 93720 Jesus Rios 564 S. Cedar Apt. F Fresno, CA Abel Ramirez 3835 N. Thorne, Apt. G Fresno, CA Christina Maria Servin 3040 N. Bliss Fresno, CA Sandra Williams 132 N. Peach Clovis, CA Randall Williams 132 N. Peach Clovis, CA Officer D. Dodd Clovis Police Department 1233 Fifth Street Clovis, CA 93612 Officer S. Griffith Clovis Police Department 1233 Fifth Street Clovis, CA 93612 Officer G. Cartwright Clovis Police Department 1233 Fifth Street Clovis, CA 93612

2.

3.

4.

5.

6.

7.

8.

9.

10. 23 24 25 26 27 /// 28 11.

16

1 2 3

12.

Officer Brent Hershberger Clovis Police Department 1233 Fifth Street Clovis, CA 93612 Officer J. Boldt Clovis Police Department 1233 Fifth Street Clovis, CA 93612 Officer Mike Lichti Clovis Police Department 1233 Fifth Street Clovis, CA 93612 Oscar Sandoval 402 N. Glenn #201 Fresno, CA Domingo Santiago 2611 E. Clay Fresno, CA Jose Jacobo 139 W. Saginaw, #M Fresno, CA Isidro Del Rio 3916 E. Buckingham Fresno, CA Paul Hickley Fresno County Public Defender's Office 2220 Tulare Street, Ste. 300 Fresno, CA 93721 Kenneth Taniguchi Fresno County Public Defender's Office 2220 Tulare Street, Ste. 300 Fresno, CA 93721 Deanne VonBerg Fresno County Public Defender's Office 2220 Tulare Street, Ste. 300 Fresno, CA 93721 Deborah Harper Fresno County Public Defender's Office 2220 Tulare Street, Ste. 300 Fresno, CA 93721 Elizabeth Diaz Fresno County Public Defender's Office 2220 Tulare Street, Ste. 300 Fresno, CA 93721 17

13. 4 5 6 7 8 15. 9 10 16. 11 12 17. 13 14 18. 15 16 19. 17 18 19 20 21 21. 22 23 24 25 26 23. 27 28 22. 20. 14.

1 2

24. 25.

Maribel Cuevas 7005 N. Maple Avenue, Ste. 108 Officer Michael Burrow Fresno Police Department 2323 Mariposa Fresno, CA Officer John Chandler Fresno Police Department 2323 Mariposa Fresno, CA Officer Ken Dodd Fresno Police Department 2323 Mariposa Fresno, CA Sgt. Eric Eide Fresno Police Department 2323 Mariposa Fresno, CA Officer Peter Flores Fresno Police Department 2323 Mariposa Fresno, CA Officer Don McKenzie Fresno Police Department 2323 Mariposa Fresno, CA Officer Jason Musser Fresno Police Department 2323 Mariposa Fresno, CA Officer Maria Mustafich Fresno Police Department 2323 Mariposa Fresno, CA Officer Michael Orndoff Fresno Police Department 2323 Mariposa Fresno, CA Officer Tim Stewart Fresno Police Department 2323 Mariposa Fresno, CA

3 4 5 6 7 26. 8 9 10 11 12 28. 13 14 15 16 17 30. 18 19 20 21 22 32. 23 24 25 26 27 /// 28 33. 31. 29. 27. 25.

18

1 2 3

34.

Officer Michael Troehler Fresno Police Department 2323 Mariposa Fresno, CA Officer Bill Trollinger Fresno Police Department 2323 Mariposa Fresno, CA

35. 4 5 6 7 8 9 37. 10 11 12 13 14 15 16 17 40. 18 19 41. 20 21 22 23 24 43. 25 26 27 28 /// /// 42. 38.

Expert 36. Joseph Callanan Specialized Training Consultants 2900 N. Government Way, PMB #324 Coeur d'Alene, ID 83815 Harold L. Seymour, Ph.D. Clinical and Forensic Psychology 5740 N. Palm Avenue, Ste. 105 Fresno, CA 93704 Paul J. Markovitz, M.D., Ph.D. 7409 North Cedar Avenue, suite 101 Fresno, CA 93720

Non-Retained 39. Kevin Wingert, M.D. Clovis Medical Providers 681 Medical Center Drive West, Ste. 103 Clovis, CA 93711 Hongshik Han, M.D. 7005 N. Maple Avenue, Ste. 108 Fresno, CA 93720 Richard Central 1351 E. Fresno, Weinberg, M.D. California Ear, Nose & Throat Medical Group Spruce CA 93720

Ron Santore, P.A. Central California Faculty Medical Group 4910 Clinton Way, Ste. 101 Fresno, CA 93727 Lindsay Hand to 7005 N. Fresno, Pimentel Shoulder Rehab, Inc. Maple Avenue, Ste. 104 CA

19

1 2 3

44.

Perminder Bhatia, M.D. Neuro-Pain Medical Center 736 E. Bullard Avenue, Ste. 101 Fresno, CA 93710 Serenity Holder, Paramedic American Ambulance 2911 E. Tulare Fresno, CA 93721 James Garza, EMT American Ambulance 2911 E. Tulare Fresno, CA 93721 Kelly Houts, R.N. Community Regional Medical Center Fresno, CA

45. 4 5 6 7 8 47. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46.

Counsel are each ordered to submit a list of witnesses to the court along with a copy for use by the Courtroom Deputy Clerk, on the same date and at the same time as the list of exhibits are to be submitted as ordered below. CAUTION Counsel are cautioned that expert witnesses, including percipient experts, must be designated as such. No witness, not

identified as a witness in this order, including "rebuttal" witnesses, will be sworn or permitted to testify at trial. X. EXHIBITS, SCHEDULES AND SUMMARIES

The following is a list of documents or other exhibits that the parties expect to offer at trial. CAUTION Only exhibits so listed will be permitted to be offered into evidence at trial, except as may be otherwise provided in this order. No exhibit not designated in this pretrial order shall be

marked for identification or admitted into evidence at trial. /// 20

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A.

Plaintiff's Exhibits 1. 2. 3. 4. 5. 6. 7. 8. Photographs of the scene. Photographs of Plaintiff's injuries. Defendant Troehler's incident report. Citation issued by Defendant to Plaintiff. Plaintiff's insurance cards. Fresno Police Department policies and procedures. Aerial map/photo of scene. Medical bills.

B.

Defendant's Exhibits 1. 2. Photographs taken of the scene of the incident. Photographs of Plaintiff taken after the subject

incident. 3. All police reports from case no. 06-76260, including

reports prepared by officer Troehler, Officer Orndoff and Officer Flores. 4. 5. Fresno Police Department event report no. 06-BE0436. All medical records concerning Plaintiff's injury

claims, subpoenaed or obtained through discovery. 6. Fresno Police Department Standing Orders produced

pursuant to a stipulated protective order. 7. March 23, 2009 - Order for Disciplinary Action to

Darren Hise. 8. Hise. 9. August 25, 2008 - memorandum regarding meeting with May 13, 2008 - Summary of Oral Reprimand to Darren

Darren Hise. 10. April 11, 2008 - written reprimand to Darren Hise. 21

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11. 12.

January 19, 2007 - written reprimand to Darren Hise. Deposition transcript of Darren Hise taken in the case

of Muldrew v. County of Fresno, case no. 1:09-cv-0023 OWW DLB. 13. Clovis Police Reports dated July 5, 1996, September 16,

2003, February 24, 2005, May 26, 2005, December 8, 2005, May 17, 2007 regarding Randall Williams. 14. 15. 16. Internal Affairs statement of Randall Williams. Notice to appear. Misdemeanor Advisement, waiver of rights, and plea form

dated 6/13/08. XI. DISCOVERY DOCUMENTS

Only specifically designated discovery requests and responses will be admitted into evidence. Any deposition

testimony shall be designated by page and line and such designations filed with the Court on or before August 6, 2010. The opposing party shall counter-designate by line and page from the same deposition and shall file written objections to any question and answer designated by the opposing party and filed with the court on or before August 16, 2010. Written discovery shall be identified by number of the request. The proponent shall lodge the original discovery

request and verified response with the courtroom deputy one day prior to trial. The discovery request and response may either be

read into evidence, or typed separately, marked as an exhibit, as part of the exhibit marking process, and offered into evidence. 1. Officer Troehler's Special Interrogatories, Set No. 1;

and Plaintiff's responses. 2. Officer Troehler's Request for Production, Set No. 1; 22

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and Plaintiff's response, and further response. 3. Depositions and attached exhibits of all persons

deposed in this case. 4. 5. notices. XII. 1. STIPULATIONS Rule 26 disclosures of the parties. Documents produced pursuant to subpoenas or deposition

The parties entered into a Stipulated Protective Order

pertaining to certain documents produced by Defendants that are deemed confidential. The use of these documents at trial will be

addressed at the time of the pre-trial conference. XIII. 1. AMENDMENTS - DISMISSALS

Although no formal dismissal was filed, Plaintiff's

third claim for relief in the First Amended Complaint which alleges intentional infliction of emotional distress, and negligent infliction of emotional distress, were withdrawn. Also, Sandra Williams has been dismissed as a party in this case. XIV. A. Trial Briefs. Counsel are directed to file a trial brief in this matter ten days prior to the date of commencement of trial, as provided by Local Rule 285, Local Rules of Practice for the Eastern District of California. facts is required. No extended preliminary statement of FURTHER TRIAL PREPARATION

The brief should address disputed issues of

substantive law, disputed evidentiary issues of law that will not be resolved in limine, and any other areas of dispute that will require resolution by reference to legal authority. /// 23

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B.

Duty of Counsel To Pre-Mark Exhibits. 1. Counsel for the parties are ordered to meet and conduct

a joint exhibit conference on August 18, 2010, at 10:00 a.m. at the law offices of Weakley, Arendt & McGuire Law Offices, 1630 East Shaw Avenue, Suite 176, Fresno, California for purposes of pre-marking and examining each other's exhibits and preparing an exhibit list. All joint exhibits will be pre-marked JX1-JX50;

all of the plaintiff's exhibits will be pre-marked with numbers 51-150; all of defendant's exhibits will be pre-marked with numbers 151-250. 2. Each and every page of each and every exhibit shall be

individually Bates-stamped for identification purposes, and paginated with decimals and arabic numerals in seriatim; i.e., 1.1, 1.2, 1.3 . . .. 3. Following such conference, each counsel shall have

possession of four (4) complete, legible sets of exhibits, for use as follows: a. Two (2) sets to be delivered to the Courtroom

Deputy Clerk, Renee Gaumnitz, no later than 4:00 p.m. on August 27, 2010, an original for the court and one for the witness. b. One (1) set to be delivered to counsel for the

opposing party and one (1) set to be available for counsel's own use. 4. Counsel are to confer to make the following

determination as to each of the exhibits proposed to be introduced into evidence and prepare separate indexes, one listing joint exhibits, one listing each party's exhibits: a. Joint exhibits, i.e., any document which both 24

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sides desire to introduce into evidence, will be marked as a joint exhibit (JX), and numbered JX1-___. Joint exhibits shall

be listed as such in the exhibit list in a column that notes they are admitted into evidence without further foundation; b. As to any exhibit, not a joint exhibit, to which

there is no objection to its introduction into evidence, the exhibit will be marked as Plaintiff's Exhibit ___, or Defendant's Exhibit ___ in evidence, and will be listed in the exhibit list as the exhibit of the offering party; c. The exhibit list shall include columns for noting The first column will list any

objections to exhibits.

objections as to foundation; i.e., Plaintiff's Foundation 2 "not authenticated." d. The exhibit list shall include a second column for

noting substantive objections to exhibits based on any other grounds; i.e., "hearsay, improper opinion, irrelevant." e. The exhibit list shall include a description of

each exhibit on the left-hand side of the page, and the three columns outlined above (as shown in the example below). List of Exhibits Exhibit # Description f. Admitted In Evidence Objection To Foundation Other Objection

22 23 24 25 26 27 28 The completed exhibit list shall be delivered to

Renee Gaumnitz CRD on or before August 27, 2010, at 4:00 p.m. g. If originals of exhibits cannot be located, copies

may be used, however, the copies must be legible and accurate. If any document is offered into evidence that is partially not legible, the Court sua sponte will exclude it from evidence. 25

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C.

Discovery Documents. 1. Counsel shall file a list of discovery documents with

Renee Gaumnitz CRD at the same time and date as the witness and exhibit lists are lodged with her, unless the discovery documents are marked as exhibits, which counsel intend to use at trial by designating by number, the specific interrogatory, request for admission, or other discovery document. Counsel shall comply

with the directions of subsection XII (above) for introduction of the discovery document into evidence. D. Motions In Limine. 1. The motions in limine shall be filed by August 6, 2010, The Court

and any responses shall be filed by August 16, 2010.

will conduct a hearing on motions in limine in this matter on August 20, 2010, at 11:00 a.m. in Courtroom 3, Seventh Floor, before the Honorable Oliver W. Wanger United States District Judge, at which time all evidentiary objections, to the extent possible, will be ruled upon, and all other matters pertaining to the conduct of the trial will be settled. E. Trial Documents. 1. Exhibits To Be Used With Witness. During the trial of

the case, it will be the obligation of counsel to provide opposing counsel not less than forty-eight hours before the witness is called to the witness stand, the name of the witness who will be called to testify and to identify to the Court and opposing counsel any exhibit which is to be introduced into evidence through such witness that has not previously been admitted by stipulation or court order or otherwise ruled upon, and to identify all exhibits and other material that will be 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

referred to in questioning of each witness.

If evidentiary

problems are anticipated, the parties must notify the court at least twenty-four hours before the evidence will be presented. F. Counsel's Duty To Aid Court In Jury Voir Dire. 1. Counsel shall submit proposed voir dire questions, if

any, to Renee Gaumnitz CRD at [e-mail] on or before August 26, 2010, at 4:00 p.m. Counsel shall also prepare

a joint "statement of the case" which shall be a neutral statement, describing the claims and defenses for prospective jurors, to be used in voir dire. 2. In order to aid the court in the proper voir dire

examination of the prospective jurors, counsel are directed to lodge with the Court the day before trial a list of the prospective witnesses they expect to call if different from the list of witnesses contained in the Pre-Trial Order of the Court. Such list shall not only contain the names of the witnesses, but their business or home address to the extent known. This does

not excuse any failure to list all witnesses in the Pre-Trial Order. 3. Counsel shall jointly submit, to Renee Gaumnitz CRD the

Friday before trial, a neutral statement of the claims and defenses of the parties for use by the court in voir dire. G. Counsel's Duty To Prepare And Submit Jury Instructions. 1. All proposed jury instructions shall be filed and Jury

served on or before August 30, 2010, by 4:00 p.m.

instructions shall be submitted in the following format. 2. Proposed jury instructions, including verdict forms,

shall be submitted via e-mail to [e-mail] 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

formatted in WordPerfect for Windows X3.

Counsel shall be

informed on all legal issues involved in the case. 3. The parties are required to jointly submit one set of To accomplish this, the parties

agreed upon jury instructions.

shall serve their proposed instructions upon the other fourteen days prior to trial. The parties shall then meet, confer, and

submit to the Court the Friday before the trial is to commence, one complete set of agreed-upon jury instructions. 4. If the parties cannot agree upon any instruction, they

shall submit a supplemental set of instructions designated as not agreed upon by August 30, 2010, at 4:00 p.m. 5. Each party shall file with the jury instructions any

objection to non-agreed upon instructions proposed by any other party. All objections shall be in writing and shall set forth The

the proposed instruction objected to in its entirety.

objection should specifically set forth the objectionable matter in the proposed instruction and shall include a citation to legal authority explaining the grounds for the objection and why the instruction is improper. A concise statement of argument Where applicable,

concerning the instruction may be included.

the objecting party shall submit an alternative proposed instruction covering the subject or issue of law. 6. Format. The parties shall submit one copy of each

instruction.

The copy shall indicate the party submitting the

instruction, the number of the proposed instruction in sequence, a brief title for the instruction describing the subject matter, the test of the instruction, the legal authority supporting the instruction, and a legend in the lower lefthand corner of the 28

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instruction: "Given," "Given As Modified," "Withdrawn" and "Refused" showing the Court's action with regard to each instruction and an initial line for the judge's initial in the lower right-hand corner of the instruction. Ninth Circuit Model

Jury Instructions should be used where the subject of the instruction is covered by a model instruction. 7. All instruction should be short, concise, Argumentative

understandable, and neutral statements of the law.

or formula instructions will not be given, and should not be submitted. 8. Parties shall, by italics or underlining, designate any

modifications of instructions from statutory authority, or any pattern instruction such as the Model Circuit Jury Instructions 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. 9. Proposed verdict forms shall be jointly submitted or if

the verdict forms are unagreed upon, each party shall submit a proposed verdict form. Verdict forms shall be submitted to the

Courtroom Deputy Clerk on the first day of the trial. 10. Failure to comply with these rules concerning the

preparation and submission of instructions and verdict forms may subject the non-complying party and/or its attorneys to sanctions. XV. USE OF LAPTOP COMPUTERS/POWERPOINT FOR PRESENTATION OF EVIDENCE 1. If counsel intends to use a laptop computer for

presentation of evidence, they shall contact Renee Gaumnitz CRD 29

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at least one week prior to trial.

The Courtroom Deputy Clerk

will arrange a time for any attorney to bring any laptop to be presented to someone from the Court's Information Technology Department, who will provide brief training on how the parties' electronic equipment interacts with the court's audio/visual equipment. If counsel intend to use PowerPoint, the resolution

should be set no higher than 1024 x 768 when preparing the presentation. 2. ALL ISSUES CONCERNING AUDIO-VISUAL MATERIALS AND

COMPUTER INTERFACE WITH THE COURT'S INFORMATION TECHNOLOGY SHALL BE REFERRED TO THE COURTROOM DEPUTY CLERK. XVI. 1. FURTHER DISCOVERY OR MOTIONS

Discovery is closed. XVII. SETTLEMENT

1.

Settlement negotiations have been exhausted. XVIII. SEPARATE TRIAL OF ISSUES

1.

As to the amount of punitive damages, if any, the

amount will be tried in a second phase of a continuous trial before the same jury. XIX. 1. None. XX. 1. 2. ATTORNEYS' FEES IMPARTIAL EXPERTS, LIMITATIONS OF EXPERTS

Plaintiff seeks attorney's fees under 42 U.S.C. § 1988. Defendant also reserves the right to move for an award

of attorney fees under § 1988; and to contest any claim to attorney fees. XXI. 1. Five days. 30 ESTIMATE OF TRIAL TIME

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: July 27, 2010 emm0d6 1. 1. 1. 1.

XXII.

TRIAL DATE

August 31, 2010, at 9:00 a.m., in Courtroom 3, on the

Seventh Floor. XXIII. NUMBER OF JURORS AND PEREMPTORY CHALLENGES

There will be an eight person jury, each side has four

peremptory challenges. XXIV. AMENDMENT OF FINAL PRETRIAL ORDER

The Final Pretrial Order shall be reviewed by the

parties and any corrections, additions, and deletions shall be drawn to the attention of the Court immediately. Otherwise, the

Final Pretrial Order may only be amended or modified to prevent manifest injustice pursuant to the provisions of Fed. R. Civ. P. 16(e). XXV. Not applicable. MISCELLANEOUS

/s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

31