Lemire et al v. State of California et al

Filing 239

ORDER RE DEFENDANTS' MOTIONS IN LIMINE signed by Judge Garland E. Burrell, Jr on 7/31/15. (Mena-Sanchez, L)

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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,

ORDER RE: DEFENDANTS’ MOTIONS IN
LIMINE

v.

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2:08-cv-00455-GEB-EFB

Plaintiffs,

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No.

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

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

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precluding

19

motion is addressed below.1

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the

admission

of

certain

evidence

at

trial.

Each

MIL No. 1

21

Defendants

“move

to

preclude

Plaintiffs

testimony

about

from

22

introducing

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involvement in other lawsuits or incidents alleging deliberate

24

indifference or other misconduct or bad acts on the grounds that

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such evidence is inadmissible [under Federal Rule of Evidence

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(“Rule”) 404(b)], irrelevant, and highly prejudicial.” (Defs.’

evidence

or

eliciting

Defendants’

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1

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Defendants’ ninth in limine motion, filed on July 21, 2015, (ECF No.
229), is not addressed in this order.

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MIL No. 1 1:21-24, ECF No. 158.) Defendants argue:

2

The jury here must decide whether Defendants
were indifferen[t] to [a] substantial risk of
serious harm to [the Decedent] by removing
the floor officers for an extended period of
time and failing to provide him with CPR on
May 10, 2006. Evidence of other lawsuits or
complaints against Defendants does not tend
to prove that they ignored a substantial risk
of serious harm on the date at issue here.
Furthermore, introduction of Defendants’ past
litigation or other complaints of misconduct
will be refuted, which in turn, will waste
time and unnecessarily prolong the trial.
Accordingly,
the
Court
should
exclude
evidence
of
other
lawsuits
or
inmate
complaints against Defendants.

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(Id. at 3:2-9.)

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Plaintiffs

rejoin

that

such

evidence

is

admissible

13

under

14

element

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knowledge of conditions that endangered [the Decedent].”

16

Opp’n

17

Plaintiffs argue:

18
19
20
21
22

Rule
of

to

404(b)

because

deliberate

Defs.’

MIL

it

is

probative

indifference[,]”

No.

1

2:7-8,

of

i.e.,

“the

“the

2:18-20,

ECF

knowledge

Defendants’

No.

(Pls.’
190.)

A defendant is liable under the Eighth
Amendment for denying an inmate humane
conditions of confinement only if he knew of
and disregarded a risk to the inmate’s health
or safety. . . . Plaintiff[s] thus bear[] the
burden of establishing that the [Defendants]
were aware of facts from which the inference
could be drawn that a substantial risk of
serious
harm
exists,
and
that
[the
Defendants] also drew that inference.

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26
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. . . Defendants’ knowledge of the
problems
can
be
established
by
the
introduction
of
evidence
of
lawsuits,
grievances, and complaints.
(Id. at 3:1-11.)
Defendants

reply,

inter

alia,

that

“[e]ven

if

Plaintiffs have a specific lawsuit, grievance, or incident in
2

1

mind . . . that they contend is factually similar to the events

2

in

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Federal Rule of Civil Procedure 37(c)” because Plaintiffs did not

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respond

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requested such information. (Defs.’ Reply to MIL No. 1 3:1-10,

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ECF No. 206.) This argument is disregarded since it was made for

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the first time in Defendants’ reply brief. See Zamani v. Carnes,

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491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not

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consider arguments raised for the first time in a reply brief.”);

10

see also Final Pretrial Order 6:3-5 (prescribing in the section

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concerning in limine motions: “The failure to state a basis for

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the

13

constitutes a waiver or abandonment of that basis”).)

this

to

the

Court

should

interrogatories

admissibility

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15

case,

This

or

motion

preclude

propounded

during

non-admissibility

lacks

the

the

of

evidence

discovery

disputed

concreteness

under

that

evidence

required

for

a

pretrial in limine ruling.

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MIL No. 2

17

Defendants

“move

to

preclude

Plaintiffs

from

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introducing evidence or eliciting testimony that the State of

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California

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Rehabilitation (CDCR) will reimburse [the Defendants] for any

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adverse judgment that may result from the trial.” (Defs.’ MIL No.

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2

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inadmissible under Rule 411, irrelevant, and “prejudicial because

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a jury is more inclined to deliver a verdict against a defendant

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if it believes he is indemnified.” (Id. at 1:24-2:2.) Defendants

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further

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California Government Code ' 825] to indemnify its employees, at

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their request, in litigation arising from the course and scope of

1:21-23,

or

the

ECF

contend:

California

No.

159.)

Department

Defendants

“[although]

the

3

of

argue

State

is

Corrections

such

evidence

required

and

is

[under

1

their employment[,] . . . the State is not obligated to indemnify

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its employees for exemplary damages.” (Id. at 2:13-15.)

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Plaintiffs “concede” the referenced evidence should be

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excluded from the first portion of the bifurcated trial, but

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rejoin

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determination[] of punitive damages.” (Pls.’ Opp’n to Defs.’ MIL

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No. 2 2:1-6, ECF No. 191.) Plaintiffs argue: “‘[T]he ultimate

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source of payment’ is relevant to the issue of punitive damages

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because ‘[t]he jury must know the impact an award will have on

“the

evidence

is

admissible

in

[the

jury’s]

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the

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2:12-15 (alteration in original) (quoting Perrin v. Anderson, 784

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F.2d 1040, 1047–48 (10th Cir. 1986).)

defendant

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to

properly

assess

punitive

damages.’”

(Id.

at

Defendants reply, inter alia, that Plaintiffs’ argument

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“that

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determination of punitive damages,” is contrary to Ninth Circuit

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authority, Larez v. Holcomb, 16 F.3d 1513, 1520-21 (9th Cir.

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1994). (Defs.’ Reply to MIL No. 2 1:21-27, ECF No. 207.)

indemnification

evidence

is

relevant

to

a

jury’s

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“It has long been the rule in [the Ninth Circuit] that

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evidence of insurance or other indemnification is not admissible

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on the issue of damages . . . .” Larez, 16 F.3d at 1518. The

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Ninth

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determining compensatory and punitive damages. Id. at 1518-1521;

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see

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compensatory damages indemnification instruction improper apply

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with equal force in the punitive damages context.”). Therefore,

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this in limine motion is GRANTED.

27
28

Circuit

id.

at

has

1520

applied

(“The

this

reasons

principle

that

in

lead

the

us

to

context

find

of

the

MIL No. 3
Defendants

“move

to
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preclude

Plaintiffs

from

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introducing into evidence or eliciting testimony about documents

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filed or rulings made in Coleman v. Brown (E.D. Cal No. 2:90-cv-

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00520-KJM-DAD), including those related to the suicide rate and

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overcrowding in California prisons,” arguing that, “other than

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the

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Corrections

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evidence is inadmissible hearsay, irrelevant, and prejudicial.”

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(Defs.’

9

reference

documents

MIL

pertaining

&

[the

Rehabilitation’s

No.

any

to

3

1:21-25,

specific

ECF

document

California

(“CDCR”)]

No.
or

160.)

Department

CPR

policy,

Defendants

testimony

in

this

do

of
this

not

motion,

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other than “the ‘Report on Suicides Completed in the California

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Department of Corrections and Rehabilitation in Calendar Year

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2006’

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3030).”2 Concerning this document, Defendants argue:

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by

Dr.

Raymond

F.

Patterson

(Coleman

Docket

ECF

No.

No evidence shows that the Coleman court
adopted or made any findings concerning
the . . . Report.
Thus,
Dr.
Patterson’s
statements and opinions lack foundation and
are hearsay and not subject to judicial
notice. To the extent Plaintiffs seek [to]
use . . . Dr. Patterson’s report as expert
opinion, they did not timely or properly
disclose Dr. Patterson as an expert as
required
under
Federal
Rule
of
Civil
Procedure 26(a)(2) or the Court’s March 3,
2014 Scheduling Order.

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Further, Dr. Patterson’s report . . .
[is] irrelevant. The jury here must decide
whether Defendants exposed [the Decedent] to
an unreasonable risk of harm by removing the
floor staff for a certain period of time and
whether the first responders ignored his
medical needs by failing to provide him with
immediate life-saving measures. The suicide
rate for prisons other than [California State
Prison (“CSP”)]-Solano and for periods other
than 2006 have no bearing on the issues the
jury must decide.

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2

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Over five thousand (5,000) documents have been filed in the Coleman case
to date.

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1

(Id. at 2:11-27.)

2

Plaintiffs

counter

that

“the

Coleman

litigation

is

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relevant to the [D]efendants’ knowledge of the substantial risk

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of harm caused by removing the floor officers in Building 8 and

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failing to provide CPR.” Plaintiffs argue:

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Obviousness is not measured by what is
obvious to a layman, but rather by what would
be obvious in light of reason and the basic
general knowledge that a prison official may
be presumed to have obtained regarding the
type of deprivation involved. The Coleman
litigation was well known in penological
circles and to officials at CSP-Solano. That
litigation
specifically
alerted
prison
officials to the acute problem of inmate
suicides in CDCR prisons, including CSP
Solano.

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10
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(Pls.’ Opp’n to Defs.’ MIL No. 3 5:1-3, 5:14-22, ECF No. 193

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(internal

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further rejoin concerning Dr. Peterson’s 2006 report that the

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report

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admissible under Rule 803(8) as an official report. Plaintiffs

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contend:

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quotation

and

opinions

marks

and

and

citation

conclusions

omitted).)

contained

Plaintiffs

therein

[The
Report
was]
made
by
an
official
investigatory body at the recommendation of
[Magistrate] Judge Moulds in 1994.
On 09/13/1995 . . . , the Honorable
Lawrence K. Karlton, adopted the findings &
recommendation
of
the
magistrate
an[d]
referred the matter [to] the magistrate judge
for nomination of a special master. On
03/14/1996 . . . Judge Karlton appointed
Raymond F Patterson, M.D. as a mental health
expert.

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The
United
States
Supreme
Court
addressed the issue of whether investigatory
reports are admissib[le] in Beech Aircraft
Corp. v. Rainey 488 US 153, 161-162, 170, and
found that investigatory reports otherwise
admissible under Rule 803(8) are not rendered
6

are

1

inadmissible merely because
conclusion of opinion . . . .

they

state

a

2
Th[is] investigative report[] [is an]
official report[] within the meaning of . . .
Rule 803(8), and [is] trustworthy having been
prepared timely, by a person . . . with
special skill [having] be[en] appointed by
the court as Special Master[], without any
evidence or even insinuation of bias or
motive to lie. Hence, the report[] and the
reporter’s
opinions
and
conclusions
are
admissible. See Beech, supra.

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4
5
6
7
8

(Id. at 3:18-4:22 (citations omitted).)
Defendants

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reply,

inter

alia,3

that

the

referenced

10

report “do[es] not satisfy the trustworthiness element of Rule

11

803(8) because no evidence shows that [Dr. Peterson] conducted a

12

proper

13

(Defs.’ Reply to MIL No. 3 2:5-7, ECF No. 213.) “Accordingly,”

14

Defendants

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report[] as irrelevant and inadmissible hearsay.” (Id. at 14-15.)

investigation

argue

To

16

to

“the

the

support

court

extent

his

should

opinions

exclude

Defendants

seek

a

the

or

.

findings.”

.

pretrial

.

2006

ruling

17

excluding Dr. Peterson’s 2006 report, they have not shown that it

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lacks

19

claim, that Rule 403 justifies its exclusion, or that it is not

20

admissible under Rule 803(8). Therefore, that portion of the in

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limine motion is DENIED.

probative

value

on

Plaintiffs’

conditions-of-confinement

The remainder of the motion lacks the preciseness and

22
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sufficient

24

factual

context

required

for

a

pretrial

in

limine

ruling.

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26
3

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28

Defendants also make arguments in their reply concerning the exclusion
of Dr. Peterson’s Special Master Report for 2005. These arguments are
disregarded since Defendants did not mention exclusion of this specific
document in their motion.

7

1

MIL No. 4

2
3

Defendants move to preclude the following anticipated
evidence for the stated reasons:

4

[(1) Evidence on the Decedent’s] medical and
mental-health conditions, [the] cause of
those conditions, and whether [the Decedent]
received proper treatment for such conditions
on the grounds that they have no personal
knowledge of the treatment [he] received or
the information he relayed to his providers,
and they are not qualified to opine about the
adequacy of the medical or mental-health care
[he] received at CSP-Solano[; and]

5
6
7
8
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. . . [(2) E]vidence . . . of [the
Decedent’s] medical conditions, the medical
care he received for those conditions, and
any complaints or inmate appeals he may have
submitted or had about his medical conditions
or treatment [on the ground that t]his
evidence is not relevant to the remaining
claims in this case.

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12
13
14

(Defs.’ MIL No. 4 1:21-2:4, ECF No. 170.)

15

Plaintiffs rejoin that they do not intend to introduce

16

the

17

received

18

contend

19

health records in order to demonstrate [the Decedent’s] medical

20

and mental health condition at the time of his death as evidence

21

of the extent of his pain and suffering.” (Pls.’ Opp’n to Defs.’

22

MIL No. 4 2:3-16, 3:20-4:5, 4:22-26, ECF No. 198.) Plaintiffs

23

further

24

admissible under the “hearsay exception for statements made for

25

purposes of medical diagnosis or treatment.” (Id. at 5:7-6:22.)

referenced

evidence

constitutionally
they

argue

“intend

that

to

the

on

the

proposition

inadequate

care.

introduce

CDCR’s

Decedent’s

CDCR

that

the

Instead,
own

Decedent

Plaintiffs

medical/mental

medical

records

are

26

Defendants also raise new objections to this evidence

27

in their reply brief, which are not considered since they were

28

not timely argued.
8

1
2

This

motion

lacks

the

concreteness

required

for

a

pretrial in limine ruling.

3

MIL No. 5

4

Defendants

“move

to

preclude

Plaintiffs

and

their

5

counsel from [presenting evidence] or argu[ment] . . . that [the

6

Decedent] was murdered by his cell mate, John Harden[,]” arguing

7

“Plaintiffs did not allege that [the Decedent] was murdered, they

8

did not put Defendants on notice of this theory.” (Defs.’ MIL No.

9

5

1:21-24,

ECF

No.

162.)

Defendants

further

contend

theory

at

that

10

“allowing

11

prejudicial to Defendants, and there is no evidence to support

12

[the] theory.” (Id. at 1:24-26.)

Plaintiffs

to

advance

this

trial

is

13

Plaintiffs oppose the motion, rejoining that certain

14

deposition testimony indicates that Officer Cahoon stopped Harden

15

from providing CPR to the Decedent because she believed Harden

16

was attacking the Decedent, and that such testimony “is relevant

17

to the issue of deliberate indifference.” (Pls.’ Opp’n to Defs.’

18

MIL No. 5 2:8-21, 3:4-5, ECF No. 195.)

19

To the extent Defendants seek in this in limine motion

20

to preclude Plaintiffs from advancing the claim at trial that the

21

Decedent was murdered by his cellmate, the motion is GRANTED

22

since this claim is not preserved in the December 10, 2014 Final

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Pretrial Order. “[The Ninth Circuit] ha[s] consistently held that

24

issues not preserved in the pretrial order have been eliminated

25

from the action.” Hunt v. Cnty. of Orange, 672 F.3d 606, 617 (9th

26

Cir. 2012) (internal quotation marks and citation omitted); see

27

also United States v. First Nat’l Bank of Circle, 652 F.2d 882,

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886 (9th Cir. 1981) (“[A] party need offer no proof at trial as
9

1

to matters agreed to in the order, nor may a party offer evidence

2

or advance theories at the trial which are not included in the

3

order or which contradict its terms.”).

4

To the extent this in limine motion seeks other relief,

5

it

6

ruling.

lacks

7

the

concreteness

required

for

a

pretrial

in

limine

and

their

MIL No. 6

8

Defendants

“move

to

preclude

Plaintiffs

9

counsel from testifying, eliciting testimony, or arguing in the

10

jury’s presence that Defendants Cahoon’s or Holliday’s failure to

11

provide [the Decedent] with CPR caused his death or that [the

12

Decedent] would have benefited or survived had he been given

13

CPR.” (Defs.’ MIL No. 6 1:21-24, ECF No. 163.) Defendants argue:

14

“[o]pinions about causation, diagnosis, and prognosis can only be

15

rendered on the basis of specialized knowledge held by an expert

16

qualified by medical education, experience and training[,]” and

17

here,

18

Decedent’s] survivability[,] and they have no expert to testify

19

about this matter.” (Id. at 1:25-27, 2:7-10.)

“Plaintiffs

are

not

competent

to

opine

about

[the

20

Plaintiffs counter: “[t]he Ninth Circuit prescribe[d]

21

that [the issue of whether Defendants Cahoon’s and Holliday’s

22

failure to provide the Decedent with CPR caused his death] should

23

be decided by the jury[,]” and “[t]he jury’s consideration of

24

this

25

Decedent’s] condition and argument from counsel.” (Pls.’ Opp’n to

26

Defs.’ MIL No. 6 2:2-14, ECF No. 192.)

issue

27
28

requires

introduction

of

evidence

regarding

[the

The Ninth Circuit held in Lemire, in relevant part, as
follows:
10

1

3.

2

We analyze causation only with respect
to Defendants Cahoon and Holliday . . . .

Causation

3
Viewing the evidence in the light most
favorable to Plaintiffs, . . . a jury could
reasonably determine that [the Decedent] was
alive and capable of being revived if CPR had
been timely provided by Cahoon and Holliday.
First, when the . . . paramedics arrived over
twenty minutes after [the Decedent] was
discovered by Cahoon and Holliday, they
immediately administered CPR, and continued
to do so for almost twenty minutes before he
was pronounced dead. A jury could conclude
that, if the paramedics believed something
could be done so long after [the Decedent]
was found unconscious and not breathing,
starting CPR earlier might have had a
benefit.
Second,
[Supervising
Registered
Nurse (“SRN”)] Hicks testified that [the
Decedent] could have died any time between
six and thirty minutes prior to the time she
evaluated him. This suggests that if Cahoon
or Holliday had started CPR immediately,
which would have been anywhere between five
to twenty-five minutes before SRN Hicks
arrived at the scene, [the Decedent] would
not have been beyond revival at the time and
therefore might have survived. Drawing all
reasonable inferences in Plaintiffs’ favor, a
jury could conclude that had Cahoon and
Holliday
provided
CPR
immediately,
[the
Decedent] might have survived.

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5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

Lemire, 726 F.3d at 1084 (emphasis in original).
The

20

Ninth

Circuit

held

in

Lemire

that

the

summary

21

judgment record created a triable issue of fact on the issue of

22

whether Defendants Cahoon’s and Holliday’s alleged failure to

23

immediately perform CPR caused the Decedent’s death. Therefore,

24

this in limine motion is DENIED.

25

Further, to the extent Defendants’ reply brief could be

26

construed as reframing this in limine motion by narrowing the

27

scope

28

disregarded as untimely.

of

evidence

they

seek

to

11

exclude,

that

argument

is

1

MIL No. 7

2

Defendants “move to exclude and limit the testimony of

3

Plaintiffs’ correctional experts Walter L. Kautzky and George E.

4

Sullivan[,]” arguing:

5

(1) the experts are expected to provide
similar testimony, thus permitting both to
testify will be cumulative, prejudicial, and
a waste of time; (2) the experts’ opinions
and reference[s] to events or matters that
are no longer at issue or individuals who are
no
longer
parties
to
this
action
are
irrelevant and prejudicial; (3) the experts
are not qualified to opine about [the
Decedent’s]
medical
and
mental-health
conditions, the adequacy of the treatment he
received, whether he would have benefitted
from CPR, and the level of care [Correctional
Clinical Care Management System] inmates
require; and (4) the experts’ opinions that
Defendants
acted
with
deliberate
indifference, the ultimate question of law in
this matter, are improper and inadmissible.

6
7
8
9
10
11
12
13
14
15

(Defs.’

16

Defendants request the following relief:

17
18
19
20
21
22
23

MIL

No.

7

1:22-2:2,

ECF

No.

164.)

Specifically,

[T]he Court should preclude Plaintiffs from
calling both experts and allow them to call
one or the other[;] . . .
. . . .
. . . [P]reclude [Plaintiffs’ experts]
from offering . . . opinions or making . . .
statements
at
trial
[concerning
the
Decedent’s
medical
or
mental-health
conditions, the adequacy of the level of care
he received for his conditions, the cause of
his conditions, or whether he would have
benefited from CPR;]

24
. . . .
25
26
27

. . . [P]reclude Plaintiffs’ experts
from testifying or opining about matters
unrelated to Defendants’ decision to remove
the floor officers from Building 8 and not
provide CPR[; and]

28
12

1
2
3

. . . .
. . . [P]reclude the experts from making
. . . statements or opinions in front of the
jury [that Defendants acted with deliberate
indifference].

4
5

(Id. at 2:22-23, 4:25-5:2, 6:8-10, 7:11-12, 7:24-27.)

6

Plaintiffs “concede[]” that both correctional experts

7

will not be necessary at trial, and state they “will only call

8

one correctional expert.” (Pls.’ Opp’n to Defs.’ MIL No. 7 2:23-

9

25, ECF No. 197.) Therefore, the Court need not decide this

10
11
12
13
14
15
16

portion of the motion.
Plaintiffs

oppose

the

remainder

of

the

motion,

rejoining in summary as follows:
Defendants . . . maintain
that
the
correctional expert’s opinions will reference
matters no longer at issue or individuals who
are no longer parties to this action.
However, the incident involved many people
who are no longer parties, yet are relevant
and
provide
relevant
information
which
support the expert’s conclusions.

17
18
19
20
21
22
23
24

Defendants further maintain that neither
expert
is
qualified
to
opine
on
[the
Decedent’s]
medical
and
mental-health
conditions,
and
the
adequacy
of
his
treatment. The correctional experts provide
no medical opinions.
Finally,
Defendants
argue
that
the
correctional expert’s opinion that Defendants
acted
with
deliberate
indifference,
is
inadmissible as ultimate questions of law.
Plaintiffs disagree with this observation.
(Id. at 2:2-19.)

25

“It is well-established . . . that expert testimony

26

concerning an ultimate issue is not per se improper. Indeed, Fed.

27

R. Evid. 704(a) provides that expert testimony that is ‘otherwise

28

admissible is not objectionable because it embraces an ultimate
13

1

issue

2

Provident Life & Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir.

3

2004)

4

citation omitted). “That said, an expert witness cannot give an

5

opinion

6

ultimate

7

citation omitted).

to

be

decided

(alteration

as

to

in

by

the

trier

original)

of

(internal

her

legal

conclusion,

of

law.”

Id.

issue

fact.’”

quotation

i.e.,

(internal

Hangarter

an

marks

opinion

quotation

and

on

marks

v.

an
and

8

Therefore, Defendants’ in limine motion is granted to

9

the extent it seeks to preclude Plaintiffs’ correctional expert

10

from

11

“deliberate indifference.” See, e.g., M.H. v. Cnty. of Alameda,

12

No. 11-cv-02868-JST, 2015 WL 54400, at *3 (N.D. Cal. Jan. 2,

13

2015) (stating “Plaintiffs’ experts may not offer testimony using

14

the specific term[] . . . “deliberate indifference”); Gonzalez v.

15

City of Garden Grove, No. CV 05-1506 CAS (JTLx), 2006 WL 5112757,

16

at *7 (C.D. Cal. Dec. 4, 2006) (concluding an expert witness

17

could “not testify as to the legal conclusion[] . . . that the

18

City’s

19

indifference’”); Wiles v. Dep’t of Educ., Nos. 04-00442 ACK-BMK,

20

05-00247 ACK-BMK, 2008 WL 4225846, at *1 (D. Haw. Sept. 11, 2008)

21

(“[T]he term ‘deliberate indifference’ is . . . a judicially

22

defined and/or legally specialized term.”).

23
24
25

giving

the

alleged

The

legal

opinion

inadequate

remainder

of

that

a

training

the

motion

Defendant

constitutes

lacks

the

acted

with

‘deliberate

concreteness

required for a pretrial in limine ruling.
MIL No. 8

26

Defendants “move to preclude Plaintiffs from requesting

27

that the jury award ‘hedonic’ damages . . . or arguing to the

28

jury that they are entitled to recover for the loss of [the
14

1

Decedent’s] enjoyment of life.” (Defs.’ MIL No. 8 1:21-24, ECF

2

No. 171.) Defendants argue, inter alia,4 that hedonic damages are

3

“intended to compensate the injured party for the reduction in

4

the quality of life caused by the injury[, and i]n death cases,

5

such as this, that purpose is inapplicable.” (Id. at 3:8-10.)

6

Defendants further argue that “any evidence [concerning hedonic

7

damages] would be speculative . . . , especially [regarding]

8

someone in [the Decedent’s] position who had a lengthy history of

9

criminal and drug-related activities and incarceration.” (Id. at

10

3:10-13.)

11

Plaintiffs

oppose

the

motion,

arguing

“the

Ninth

12

Circuit Pattern Instruction concerning the MEASURE OF TYPES OF

13

DAMAGES (5.2)” includes “loss of enjoyment of life” as a factor

14

that jurors should consider in awarding damages. (Pls.’ Opp’n to

15

Defs.’ MIL No. 8 2:19-27, ECF No. 196.)

16

Defendants reply:

17

Plaintiffs’
reliance
on
the
Ninth
Circuit’s Model Jury Instruction No. 5.2 for
damages is misplaced. No. 5.2 is a generic
instruction, intended to be used in both
personal injury and survival or wrongful
death actions. The instruction is intended to
be modified based on the claims being
asserted. Nothing in the instruction (nor do
Plaintiffs cite any authority that) provides
that all the listed damages in No. 5.2 are
available
in
every
case
in
which
the
instruction is given.

18
19
20
21
22
23
24

(Defs.’ Reply to MIL No. 8 2:7-12, ECF No. 212.)

25
26
4

27
28

Defendants also seem to seek a pretrial ruling that hedonic damages, if
recoverable, are “one component of a general damages award for pain and
suffering” rather than “a separate award.” (Id. at 2:11-12.) However,
Defendants have not shown that a pretrial ruling on this issue is necessary.

15

1

“Hedonic damages are those ‘that attempt to compensate

2

for the loss of the pleasure of being alive.’” Dorn v. Burlington

3

N. Santa Fe R.R. Co., 397 F.3d 1183, 1187 n.1 (9th Cir. 2005)

4

(quoting Black’s Law Dictionary 395 (7th ed. 1999)); accord Loth

5

v. Truck-A-Way Corp., 60 Cal. App. 4th 757, 760 n.1 (1998) (“As

6

interpreted

7

damages means either a loss of enjoyment of life or loss of

8

life’s pleasures.”). “Under California survivorship law, . . .

9

hedonic damages[] are not available.” T.D.W. v. Riverside Cnty.,

10

No. EDCV 08-232 CAS (JWJx), 2009 WL 2252072, at *5 (C.D. Cal.

11

June 27, 2009) (citing Cal. Code Civ. P. ' 377.34); Garcia v.

12

Sup. Ct., 42 Cal. App. 4th 177, 187-88 (1996); Cnty. of L.A. v.

13

Sup. Ct., 21 Cal. 4th 292, 294-95 (1999)).

14

by

the

“Because

courts

federal

around

law

the

is

United

silent

States,

on

the

hedonic

measure

of

15

damages in § 1983 actions, California’s disallowance of [hedonic]

16

damages governs unless it is inconsistent with the policies of §

17

1983.” Chaudrhy v. City of L.A., 751 F.3d 1096, 1103 (9th Cir.

18

2014). “Whether a state-law limitation on damages applies in §

19

1983 actions depends on whether the limit is inconsistent with §

20

1983’s goals of compensation and deterrence.” Id.

21

Neither the Supreme Court nor the Ninth Circuit has

22

addressed whether a state law’s disallowance of hedonic damages

23

is inconsistent with ' 1983 where an alleged violation of federal

24

law caused the victim’s death, and there is a split of non-

25

binding

26

Milwaukee, 746 F.2d 1205, 1235-41 (7th Cir. 1984) (“Wisconsin law

27

cannot be applied to preclude the [decedent’s] estate’s recovery

28

for loss of life.”), overruled in part on other grounds by Russ

authority

on

the

issue.

16

See,

e.g.,

Bell

v.

City

of

1

v. Watts, 414 F.3d 783 (7th Cir. 2005); Frontier Ins. Co. v.

2

Blaty, 454 F.3d 590, 600 (6th Cir. 2006) (holding “federal law

3

does not require, in a section 1983 action, recovery of hedonic

4

damages

5

2252072,

6

inconsistent,”

7

decedent’s

8

with the purposes of section 1983”). However, in Chaudhry, the

9

Ninth Circuit “agree[d] with” the Seventh Circuit’s “reasoning

10

in” Bell, in deciding that “California’s prohibition against pre-

11

death pain and suffering damages limits recovery too severely to

12

be consistent with ' 1983 deterrence policy.” Chaudry, 751 F.3d

13

at 1105. This indicates that the Ninth Circuit would follow the

14

Seventh Circuit’s analysis on this issue. For this reason, the

15

Court

16

thereof,

17

Decedent’s loss of enjoyment of life, would be inconsistent with

18

the purposes of section 1983.

19
20

stemming
at

from

*5-7

a

person’s

(stating
but

“the

death”);
case

deciding:

law

T.D.W.,
in

this

“excluding

2009

WL

area

is

damages

of

. . . loss of enjoyment of life would be inconsistent

holds

that

notwithstanding

excluding

hedonic

California’s

damages,

i.e.

prohibition

damages

for

the

Further, Defendants have not shown that hedonic damages
are too speculative to be considered by the jury.

21

For

22

Dated:

stated

reasons,

DENIED.

23

the

July 31, 2015

24
25
26
27
28
17

this

in

limine

motion

is