Ford v. Wildey et al

Filing 167

ORDER Regarding Parties' Motions In Limine (ECF Nos. 150 , 151 ), signed by Magistrate Judge Stanley A. Boone on 1/26/2016. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENNY FORD,

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Plaintiff,

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v.
G. WILDEY, et al.,

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Defendants.

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Case No.: 1:10-cv-01024-SAB (PC)
ORDER REGARDING PARTIES’ MOTIONS
IN LIMINE
[ECF Nos. 150, 151]

Plaintiff Benny Ford is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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This action is proceeding against Defendants Wildey and Marshall for excessive force in
violation of the Eighth Amendment.

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The matter is set for jury trial before the undersigned on February 9, 2016, at 8:30 a.m.

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On December 18, 2015, both parties filed separate motions in limine. (ECF Nos. 150, 151.)

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Plaintiff filed an opposition to Defendants motion on December 31, 2015. (ECF No. 157.)

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Defendants filed an opposition to Plaintiff’s motion on January 15, 2016. (ECF No. 161.)

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On January 26, 2016, the Court held a telephonic motions in limine hearing, and counsel Bob

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Duncan appeared on behalf of Defendants and Plaintiff appeared pro se.

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II.

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LEGAL STANDARD

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“A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a

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particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). A party may use a

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motion in limine to exclude inadmissible or prejudicial evidence before it is actually introduced at

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trial. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984). “[A] motion in limine is an important

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tool available to the trial judge to ensure the expeditious and evenhanded management of the trial

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proceedings.” Jonasson v. Lutheran Child and Family Services, 115 F.3d 436,440 (7th Cir. 1997). A

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motion in limine allows the parties to resolve evidentiary disputes before trial and avoids potentially

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prejudicial evidence being presented in front of the jury, thereby relieving the trial judge from the

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formidable task of neutralizing the taint of prejudicial evidence. Brodit v. Cambra, 350 F.3d 985,

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1004-05 (9th Cir. 2003).

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III.

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MOTIONS IN LIMINE
Plaintiff’s Motion in Limine

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A.

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Plaintiff seeks to exclude Defendants’ non-retained expert Dr. Galen Church for lack of

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sufficient foundation for Dr. Church to testify as an expert. Plaintiff also objects on the basis that Dr.

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Church never physically examined him.

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Defendants oppose Plaintiff’s motion and argue that Dr. Church is permitted to provide

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opinion testimony based on his experience and training as a physician and review of Plaintiff’s prison

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health care records. Defendants submit that Dr. Church is a physician and surgeon, licensed to

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practice medicine in the State of California. (ECF No. 67, Decl. of Church at ¶ 1.) Dr. Church earned

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his medical degree in 2000 from the Chicago College of Osteopathic Medicine at Midwestern

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University in Illinois, and completed a residence in family medicine in 2003. (Id.) Dr. Church’s

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experience includes General and Family Medicine in the United States Air Force and emergency

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medicine practice at the Good Shepard Medical Center in Herminston, Oregon. (Id.) Since 2013, Dr.

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Church has been employed by the California Department of Corrections and Rehabilitation as the

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Chief Physician and Surgeon at California Healthcare Facility in Stockton, California. (Id.) Dr.
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Church’s medical practice at the CDCR includes the direct medical care of inmates and the

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supervision and review of other healthcare providers. (Id. ¶ 2.) Throughout Dr. Church’s medical

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practice the treatment of chronic and acute pain has been integral. (Id.) Defendants maintain that Dr.

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Church’s training, knowledge, skill, and experience qualify him to render an opinion regarding

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Plaintiff’s claimed wrist injury.
Defendants submit that Dr. Church will testify that he reviewed Plaintiff’s Unified Health Care

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Record and even if, as Plaintiff alleges, handcuffs were placed too tightly on wrist for 30 to 45

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seconds, the duration of the handcuffing was insufficient to cause injury. (ECF No. 67 at ¶ 13.) Dr.

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Church’s testimony is based on his review of Plaintiff’s health care records and his training,

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knowledge, skill, and experience. (Id. at ¶¶ 1-3.)
The Federal Rules of Evidence authorize the opinion testimony of an expert witness who has

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the requisite “knowledge, skill, experience, training or education” to form a specialized opinion. Fed.

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R. Evid. 702. “An expert may base an opinion on facts or data in the case that the expert has been

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aware of or personally observed. If experts in the particular field would reasonably rely on those kinds

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of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be

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admitted.” Fed. R. Evid. 703. A medical expert may base his opinion on the medical opinions and

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information contained in the reports of other doctors. See Fed. R. Evid. 703; Westfield Ins. Co. v.

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Harris, 134 F.3d 608, 612 (4th Cir. 1998).
Ruling: Based on the qualifications set forth in Dr. Church’s declaration, Plaintiff’s objection

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for lack of sufficient foundation is overruled, and Plaintiff’s motion in limine to exclude the expert

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testimony of Dr. Church is DENIED.
Defendants’ Motions in Limine

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B.

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Defendants seek to exclude the declarations of former inmates Michael Watkins (V-68691) and

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Kemon Bead (F-41740). Plaintiff submits the declarations of Watkins and Bead as exhibits 6 and 7,

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he expects to introduce at trial. (ECF No. 147 at 47-50.)

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Kemon Bead’s sworn declaration states:

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I heard inmate Ford, C-04844, being escorted back from the shower. I heard C/O
Wiley state that he could squeeze the cuff’s tighter if he wanted to. C/O Wiley made
this type of statement a few times during this incident. It appeared that C/O Wiley was
taunting inmate Ford. About an hour later, Ford asked me if I had ay Tylenol. He
stated that he was in a lot of pain.

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(ECF No. 147, Ex. 7.)
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Michael Watkin’s sworn declaration states:

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I Michael Watkins V-68691 was standing at my door waiting on showers and I saw I/M
Ford walk by my door and he looked as if he was in a lot of pain. I heard C/O Wiley
state: he could squeeze the cuffs tighter if he wanted to and C/O Wiley was smiling.

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(ECF No. 147, Ex. 6.)
Defendants contend that the declarations of inmates Watkins and Bead are hearsay as they will

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be offered to prove that Defendants used excessive force against Plaintiff. Fed. R. Evid. 801.

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Defendants argue that such declarations are inadmissible pursuant to Federal Rule of Evidence 802.

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On September 8, 2015, Plaintiff filed a motion requesting the attendance of two incarcerated

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witnesses, Watkins and Bead. (ECF No. 137.) Defendants opposed the motion on the grounds that

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Watkins and Bead were no longer incarcerated within the California Department of Corrections and

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Rehabilitation (CDCR). (ECF No. 141.) On November 2, 2015, Plaintiff filed a motion requesting

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issuance of two separate form subpoenas for Bead and Watkins to attend the February 9, 2016 trial.

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(ECF No. 143.)
On November 3, 2015, the Court denied Plaintiff’s motions because the evidence demonstrated

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that Watkins and Beads were no longer incarcerated within CDCR, and Plaintiff failed to follow the

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proper procedure to obtain the attendance of unincarcerated witnesses. (ECF No. 144.) In that order,

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the Court noted that Plaintiff failed to provide in writing the name and location of Watkins and Bead,

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in order for the Court to calculate the travel expenses and witness fees. (Id.) The Court concluded

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that no subpoenas would issue unless and until Plaintiff notified the Court in writing of the name and

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location of the unincarcerated witnesses. (Id. at 3.) To date, Plaintiff has not provided the Court with

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the locations of former inmates, Bead and Watkins.

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Ruling: Defendants’ motion in limine to exclude the declarations of former inmates Watkins

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and Bead is GRANTED, as these declarations are out of court statements offered for the truth of

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matter asserted therein constituting inadmissible hearsay. Fed. R. Evid. 801, 802. Plaintiff failed to

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demonstrate that either of the witnesses is unavailable to testify in person, and even if such witness

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was unavailable the proffered declarations do not fall within any exception to the rule against hearsay.

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Fed. R. Evid. 803, 804.

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IT IS SO ORDERED.

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Dated:

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January 26, 2016
UNITED STATES MAGISTRATE JUDGE

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