Lemire et al v. State of California et al

Filing 232

ORDER signed by Judge Garland E. Burrell, Jr. on 07/30/15 ORDERING that 158 Motion in Limine No. 1 is DENIED; 159 Motion in Limine #2 is DENIED; and 160 Motion in Limine #3 lacks the preciseness and sufficient factual context required for a pretrial in limine ruling. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHELLY LEMIRE, individually
and as a personal
representative for the
ESTATE OF ROBERT ST. JOVITE;
GERARD CHARLES ST. JOVITE;
and NICOLE ST. JOVITE,

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2:08-cv-00455-GEB-EFB

ORDER RE: PLAINTIFFS’ MOTIONS IN
LIMINE

Plaintiffs,

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No.

v.
D.K. SISTO, JAMES NUEHRING,
REBECCA CAHOON, and C.
HOLLIDAY,
Defendants.

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Plaintiffs move in limine (“MIL”) for a pretrial order

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precluding

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motion is addressed below.

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the

admission

of

certain

evidence

at

trial.

Each

MIL No. 1

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Plaintiffs seek to exclude any “testimony regarding the

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practice of understaffing . . . at night” in the building in

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which the Decedent was housed (“Building 8”), arguing “because

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[the Decedent] died in the afternoon, graveyard shift staffing

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practices are not relevant to the jury’s inquiry.” (Pls.’ MIL No.

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1 3:3-11, ECF No. 174.) Plaintiffs further argue: “[e]ven if

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relevant, . . . [such] evidence should be excluded” under Federal

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Rule

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value

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prejudice to the plaintiff and confusion of issues.” (Id. at

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3:11-13.)

of
is

Evidence

(“Rule”)

substantially

403

“because

outweighed

by

its
the

limited
danger

probative
of

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Defendants rejoin:

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Evidence of the [night shift] staffing
levels is relevant because the amount of time
the floor officers were absent from Building
8
is
a
disputed
fact
the
jury
must
decide. . . .

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. . . .
. . . The jury here need not accept
Plaintiffs’ version of the facts, or find
that the officers were absent from the
housing unit for more than three hours.
. . . Based on [conflicting evidence], a
jury can conclude that Building 8 was without
floor officers any where from more than three
and half hours to less than two hours.
. . . .
If the jury finds that the floor
officers were removed for about two hours,
evidence of the [night shift] staffing levels
is relevant to show that Defendants could
reasonably conclude that it was safe to
remove
the
floor
officers
because
the
conditions
mirrored
those
to
[night
shift]. . . .
Nothing in Lemire[ v. Cal. Dep’t of
Corr. & Rehab., 726 F.3d 1076 (9th Cir.
2013)] stated that evidence of the [night
shift] staffing level was irrelevant. Rather,
the Court discussed the differences between
the . . . shifts to show the existence of a
disputed fact. A jury could find more
similarities between the two shifts to
conclude that Defendants did not create an
unreasonable risk of harm to the inmates in
Building 8 . . . . Thus, evidence of the
[night shift] staffing levels is relevant and
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unfair

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highly probative of the central issue of
Plaintiffs’ [condition-of-confinement] claim
against Nuehring and Sisto [for their alleged
failure to provide sufficient supervision for
inmates in Building 8.]

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(Defs.’ Opp’n to Pls.’ MIL No. 1 1:21-3:17, ECF No. 180.)
Plaintiffs

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evidence

justify

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DENIED.

this

in

value

limine

on

the

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Therefore,

probative

of

conditions-of-confinement claim, nor that Rule 403 considerations

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lacks

that

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exclusion.

levels

neither

night

its

staffing

shown

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shift’s

have

their

motion

is

MIL No. 2
Plaintiffs seek to exclude evidence or argument that

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Defendants

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Decedent’s] . . . mental

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could not . . . be liable for his death[,]” arguing such evidence

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is irrelevant and should be excluded under Rule 403. (Pls.’ MIL

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No. 2 1:24-2:4, 3:25-4:3, ECF No. 175.)

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Sisto

and

Neuhring
health

“were

problems

unaware
and

[of

therefore

.

the
.

.

Plaintiffs contend:

[T]he Ninth Circuit determined [in Lemire]
that the appropriate inquiry is whether
Nuehring and Sisto . . . “were aware that
removing all floor officers from Building
8 . . . would pose a substantial risk of
serious harm to someone in [the Decedent’s]
situation, not simply whether they were
subjectively
aware
of
[the
Decedent’s]
specific medical needs.”
. . . Thus, it is the risk of harm to
someone in [the Decedent’s] situation which
the jury must examine. . . .

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. . . The Defendants’ . . . lack of
knowledge of [the Decedent’s] mental health[,
specifically,] adds nothing to the jury’s
determination of liability so it should be
excluded.

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(Id. at 2:19-3:24 (emphasis in original) (quoting Lemire, 726

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F.3d at 1077-78) (citations omitted).)

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Defendants “do not dispute that the Ninth Circuit’s

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decision . . . held that the proper inquiry on Plaintiffs’ Eighth

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Amendment claim against Defendants Sisto and Nuehring is whether

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Defendants

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Building 8 posed a substantial risk of serious harm to someone in

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[the Decedent’s] situation.” (Defs.’ Opp’n to Pls.’ MIL No. 2

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1:21-25, ECF No. 182.) Defendants rejoin, however, that “[t]his

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holding

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evidence or testifying that they were unaware of the medical or

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mental-health condition of the inmates in Building 8, including

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[the Decedent].” (Id. at 1:25-27.) Defendants argue:

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.

were

.

.

aware

does

that

not

removing

preclude

all

floor

Defendants

officers

from

presenting

[It is] anticipate[d] that Plaintiffs will
argue or seek to introduce evidence of the
Coleman
litigation
to
support
their
contention that the inmates in Building 8
were mentally ill and required greater
supervision than other general population
inmates on the yard. Indeed, in Lemire, the
Ninth Circuit, in dicta, pointed out that
“the Coleman litigation was well known . . .
to officials at CSP-Solano,” which in turn
“alerted prison officials to the acute
problem of inmate suicides in CDCR prisons,
including CSP-Solano.” Lemire, 726 F.3d at
1078. Defendants have a right to defend
against these contentions and submit evidence
about their knowledge of Coleman, the alleged
suicide rates at the prison, and what
distinguished inmates in Building 8 from
other general-population inmates. This will
necessarily require Defendants to testify
about their knowledge of how and which
inmates were classified as [Correctional
Clinical Care Management System (“CCCMS”)],
who made that determination, what information
Defendants were provided about CCCMS, the
housing and other needs of these inmates, and
the level of supervision they required. Thus,
evidence of Defendants’ knowledge of the
medical and mental-health conditions of the
inmates
in
Building
8,
including
[the
Decedent], is highly relevant and admissible.
(Id. at 2:1-14.)
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from

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Plaintiffs reply:

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While . . . knowledge of the fact that
Building 8 was a unit housing CCCMS inmates
is relevant to the danger posed to Building
8’s
inmates
by
the
withdrawal
of
all
supervisory floor staff . . . , knowledge or
[the] lack thereof about [the Decedent’s
mental health condition in] particular has no
bearing on whether a jury infers that
unsupervised mentally ill inmates housed
together are more likely to harm themselves
or others than are inmates in the regular
prison population.

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(Pls.’ Reply to MIL No. 2 4:5-15, ECF No. 203.)

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Plaintiffs

have

shown

neither

that

the

referenced

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evidence lacks probative value on their conditions-of-confinement

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claim, nor that Rule 403 considerations justify its exclusion.

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Therefore, this in limine motion is DENIED.

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MIL No. 3

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Plaintiffs move to exclude “any expert testimony” by

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Alfredo Noriega, M.D.; Dorothy Hicks, R.N.; Shabreen Hak, L.V.N.;

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and John M. Dusay, M.D. “that goes beyond the usual scope of

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treat[ing] medical provider[] testimony.”

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9,

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witnesses

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preclude Defendants from putting on improper opinion testimony or

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expert testimony from any of these witnesses as they have not

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been properly disclosed pursuant to F.R.C.P. Rule 26.” (Id. at

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3:1-3.)

ECF

No.

176.)

likely

Plaintiffs

have

relevant

argue:

(Pls.’ MIL No. 3 3:7-

“[w]hile

testimony,

each

Plaintiffs

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Defendants rejoin:

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Defendants timely and properly disclosed six
non-retained experts, including the matters
about which they would be testifying. All of
the disclosed non-retained experts were, at
one time, Defendants in this case, and all,
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of

these

move

to

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but one, ha[ve] been deposed and provided
testimony about their knowledge of the
relevant events, the policies and procedures
at
issue,
or
their
treatment
of
[the
Decedent]. Although not deposed, Dr. Dusay
provided
detailed
declarations
of
his
treatment of [the Decedent] in connection
with the parties’ summary-judgment motions.
Despite having knowledge of the testimony
Defendants’ non-retained experts are expected
to provide, Plaintiffs failed to specify what
testimony
is
objectionable,
why
it
is
improper, or how the disclosures failed to
comply with Federal Rule of Civil Procedure
Rule 26. The Court should therefore deny the
motion.

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(Defs.’ Opp’n to Pls.’ MIL No. 3 1:22-2:5, ECF No. 181.)
This

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motion

lacks

the

preciseness

and

sufficient

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factual context required for a pretrial in limine ruling. See,

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e.g., Weiss v. La Suisse, Soc’y D’Assurances Sur La Vie, 293 F.

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Supp. 2d 397, 407-08 (S.D.N.Y. 2003) (denying motion to exclude

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evidence

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particular documents or testimony have been identified in the

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motion”); Colton Crane Co., LLC v. Terex Cranes Wilmington, Inc.,

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No. CV 08-8525 PSG (PJWx), 2010 WL 2035800, at *1 (C.D. Cal. May

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19,

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exclude broad categories of evidence, as the court is almost

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always better situated to rule on evidentiary issues in their

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factual context during trial”).

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Dated:

2010)

for

a

“lack[]

(stating

of

“motions

specificity[,]”

in

July 30, 2015

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limine

should

stating

rarely

“[n]o

seek

to