Belcher et al v. United States of America et al
Filing
46
ORDER signed by Judge Garland E. Burrell, Jr. on 5/27/2015 ORDERING that 33 Motion in Limine No. 1 lacks the preciseness and sufficient factual context required for a pretrial in limine ruling. 34 Motion in Limine No. 2 is GRANTED. (Zignago, K.)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CALEB E. BELCHER; and CLB, by
and through his guardian ad
litem CALEB E. BELCHER,
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2:13-cv-01699-GEB-KJN
ORDER ON MOTIONS IN LIMINE*
Plaintiffs,
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No.
v.
UNITED STATES OF AMERICA,
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Defendant.
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Plaintiffs
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the
move
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precluding
admission
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in
of
limine
certain
for
a
evidence
pretrial
at
trial.
order
Each
motion is addressed below.
Motion in Limine No. 1
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Plaintiffs
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move
to
exclude
Defendant’s
accident
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reconstruction expert Dr. Rajeev Kelkar’s “[Expert] Report with
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appendices
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evidence),” arguing it is “inadmissible hearsay,” and “there has
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been
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(Pls.’ Mot. in Limine (“MIL”) No. 1 1:23-27, 2:7-8, 2:16-26, ECF
(totaling
insufficient
over
foundation
200
laid
pages
for
of
[its]
unauthenticated
introduction.”
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*
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These motions are suitable for decision without oral argument.
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1
No.
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Kelkar be limited, and specifically that he not be allowed to
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comment
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subject surveillance video.” (Id. at 4:7-9.) Plaintiffs argue:
33.)
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upon
or
also
interpret
request
the
“that
facts
as
the
testimony
contained
of
within
Dr.
the
[I]n his prior declaration[,] Dr. Kelkar
purports to offer “opinions” as to what the
surveillance video (an overhead view of the
accident location at the time of the subject
incident) shows. . . . [T]o the extent his
“opinions” are a description of what is
occurring in the video, the matter is
improper for expert comment, and further
lacks
sufficient
foundation
for
his
conclusions and opinions as it forces his
reliance
on a distant bird’s eye view of
the subject incident, without other personal
knowledge. . . .
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The matter should further be precluded
as that of improper opinion evidence. . . .
Here,
Dr.
Kelkar’s
anticipated
testimony stands to serve as a narrative of
his perception of the . . . surveillance
video, and what is occurring therein. Any
“opinion” or “conclusion” derived theref[rom]
is simply inappropriate for expert comment as
the trier of fact is certainly capable . . .
of interpreting such evidence as it is not
beyond the common experience or ordinary
skill
of
the
trier
of
fact.
Furthermore, . . . Dr. Kelkar . . . has no
personal knowledge on the subject . . . , and
simply seeks to interpret “facts” veiled as
an expert opinion.
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Plaintiffs
(Id. at 3:3-4:6.)
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Defendant counters: “Plaintiffs’ request to exclude Dr.
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Kelkar’s expert report and appendices is baseless. Dr. Kelkar is
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entitled
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testify . . . as to the bases for those opinions.” (Def.’s Opp’n
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MIL No. 2 5:21-23, ECF No. 40.) Defendant argues:
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to
offer
the
opinions
in
his
report
Dr. Kelkar [is] entitled to rely on all the
data
referenced
and
attached
to
his
report. . . .
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and
to
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. . . [A]nalysis of video footage is a
routine
part
of
accident
reconstruction
analysis when available. Dr. Kelkar is also
entitled to talk about the other bases for
his
opinions,
including
the
vehicle
specifications,
Anthropometric
Reference
Data, and camera information. . . . This is
the type of data that an expert routinely
relies upon and is thus admissible under Rule
703 to show the bases for the expert’s
opinions.
(Id. at 6:17-7:3.)
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Defendant also rejoins that “[t]here is no basis to
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limit or exclude the testimony of . . . Dr. Kelkar.” (Id. at
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1:18-19.) Defendant argues:
Plaintiff[] . . . [contends] that Dr.
Kelkar offers improper opinions by doing
nothing more than reciting what the video
shows. This is false. To the contrary, Dr.
Kelkar uses the information in the video as
one data point for his expert assessment and
opinions regarding the speed Officer Linn was
driving, the amount of time between when
minor CLB was standing still until the time
he unexpectedly darted into the street and
collided with Officer Linn’s vehicle, the
distance that minor CLB traveled, and whether
Officer Linn could have stopped in time to
avoid the accident. As noted in the report,
Dr. Kelkar used measurements at the scene,
analyzed
the
geometry
of
the
accident
location, and compared them with the video,
which included a clock showing what occurred
to the thousandth of a second. Dr. Kelkar
thus takes the qualitative video footage and
converts it to quantitative information that
is used as a basis for his accident
reconstruction conclusions. Accordingly, when
Dr. Kelkar discusses the video at trial, he
will not merely recite what is shown, he will
describe how he used what is shown to conduct
his expert assessment and form his ultimate
expert opinions. Dr. Kelkar’s analysis and
opinions go well beyond merely narrating what
the video shows.
. . . .
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. . . Dr. Kelkar’s opinions require
specialized skill and provide the trier of
fact significantly more information than is
otherwise available.
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(Id. at 8:1-14, 9:25-27 (citations omitted).)
Plaintiffs
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state
in
their
reply
that
they
“seek
to
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clarify the intent of their motion.” (Pls.’ Reply MIL No. 1 1:22,
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ECF No. 44.) Plaintiffs state:
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Specifically, the motion seeks to preclude
the
admission
of
Dr.
Kelkar’s
written
report / analysis . . . and to limit his
testimony to the extent it purports to
narrate
the
subject
surveillance
video.
Plaintiffs have no objection to the [expert
report’s] appendices, at this time, assuming
an appropriate foundation will be laid at
trial.
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(Id. at 1:22-27.) These statements will not be considered in
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ruling on this motion since they were made for the first time in
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reply and change the scope of the original motion. Cf. Zamani v.
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Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court
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need not consider arguments raised for the first time in a reply
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brief.”).
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This
motion
lacks
the
preciseness
and
sufficient
factual context required for a pretrial in limine ruling.
Motion in Limine No. 2
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Plaintiffs “move to preclude any testimony of” a trial
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witness Defendant identified in the Joint Pretrial Statement as
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“an agency witness,” under Federal Rule of Civil Procedure 37(c).
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(Pls.’ MIL No. 2 1:22-24, 2:6, ECF No. 34.) Plaintiffs argue:
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“Defendants have identified a ‘witness’ without providing the
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actual identity or contact information in either its initial,
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supplemental or pre-trial disclosures. Plaintiffs have had no
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opportunity
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understanding as to who this witness is or what the substance of
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his/her testimony may be.” (Id. at 2:2-6.)
to
discover,
depose
or
otherwise
obtain
any
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Defendant states “it is true that Capt. Aguilar was not
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named in the United States’ Rule 26(a) disclosures, and that the
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United
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Pretrial Statement.” (Def.’s Opp’n Pls.’ MIL No. 2 1:28-2:2, ECF
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No. 41.) However, Defendant rejoins that it “should be permitted
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to have its agency representative . . . offer brief background
States
listed
‘agency
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duties
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law
the
enforcement
unique
the
related matters.” (Id. at 1:16-18.) Defendant argues:
Service
operations,
in
testimony
Forest
agency
representative’
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of
regarding
an
or
officers,
Capt.
Aguilar
is
not
offered
for
his
knowledge of the accident involved in this
case; instead, he is offered . . . to explain
how the agency operates. In other words, he
will not be offering percipient testimony
about the accident. . . .
. . . .
Moreover, Rule 37(c)(1) rule does not
permit exclusion of testimony if the alleged
non-disclosure is “substantially justified or
is harmless.” Fed. R. Civ. P. 37(c)(1). Here,
it is both. First, it is harmless in that
there is no prejudice to Plaintiffs. Capt.
Aguilar will merely testify regarding Officer
Linn’s patrol duties on the day of the
accident, including why she needed to patrol
the area in question and why she could not
simply avoid an area with people recreating
in it. As the chief law enforcement officer
on this portion of the National Forest, Capt.
Aguilar will further provide the Court a
broader picture and an understanding of how
the Forest functions and the important role
law enforcement officers play in the Forest.
His testimony is expected to be very brief,
and Plaintiffs also have the opportunity to
depose him before trial if they wish.
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Joint
unusual
and
other
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In addition, any failure to disclose
Capt. Aguilar in discovery is justified
because . . . he is not offered as a
percipient witness and was not chosen as a
trial representative until after discovery
closed. Shortly after the United States chose
him
as
its
trial
representative,
he
unexpectedly was away from work for an openended period of time for personal reasons and
could not confirm that he could testify until
early-May 2015. Plaintiffs were immediately
notified of his identity once he confirmed
that he would be back to work in time for
trial,
and
he
was
made
available
for
deposition at Plaintiffs’ convenience. There
is simply no harm or prejudice to Plaintiffs
in
permitting
this
witness
to
testify
briefly.
(Id. at 2:2-5, 3:24-4:12.)
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Plaintiffs reply:
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Despite
the
late
information
provided
in [Defendant’s]
Opposition,
prior
to the
filing of motions in limine,
Defendant
never identified
the subject
“witness”
in
any
of
its
pre-trial
disclosures.
Plaintiffs
have
had
no
opportunity to discover, depose or otherwise
obtain any understanding as to who this
witness is or what the substance of his/her
testimony may be. Thus, the element of
surprise
is
clearly
established
herein.
Defendant seeks to counter this argument by
providing a late opportunity for deposition.
Even if a deposition could reasonably be set
before trial, as trial is just weeks away and
discovery has been closed for some time, this
does little to cure the element of surprise,
or allow Plaintiffs a reasonable opportunity
to respond to or address anything that might
be learned from this deposition. Defendant’s
accusation that Plaintiffs have known of this
since the pre-trial statement and therefore
shows no surprise again fails, as Plaintiffs
stated their objection at that time and made
an inquiry as to the [agency witness’s]
identity. At that time, [Defendant’s] counsel
still could not identify the witness, and
agreed to consider withdrawal or otherwise
allow the issue to be raised by way of a
motion in limine. No offer of deposition or
production of evidence[] . . . was made at
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that time.
(Pls.’ Reply MIL No. 2 2:7-21, ECF No. 45.)
“Parties
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are
required
to
[disclose]
the
name
and
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contact information of any individual likely to have discoverable
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information ‘that the disclosing party may use to support its
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claims
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impeachment.’” Matson v. UPS, Inc., No. C10-1528 RAJ, 2013 WL
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5966131, at *1 (W.D. Wash. Nov. 8, 2013) (quoting Fed. R. Civ.
9
Proc.
or
defenses,
unless
26(a)(1)(A)(i)).
the
use
“Parties
for
required
witnesses, . . . ‘the party expects to present [at trial] and
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those it may call if the need arises.’” Id. (quoting Fed. R. Civ.
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Proc. 26(a)(3)(A)(i)). Further, “[a] party . . . who has made a
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disclosure
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response . . . if the party learns that in some material respect
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the
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26(e)(1).
disclosure
“If
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a
or
must
supplement
response
party
fails
or
information
to
11
.
contact
also
solely
[disclose] . . . the
.
and
be
10
.
name
are
would
correct
is
incomplete.”
to
.
.
.
its
Fed.
identify
R.
a
of
.
any
.
.
Civ.
P.
witness
as
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required by Rule 26(a) or (e), the party is not allowed to use
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that . . . witness to supply evidence . . . at trial, unless the
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failure was substantially justified or is harmless.” Fed. R. Civ.
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P. 37(c)(1). “The burden is on the party facing sanctions to
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prove
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Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th
25
Cir. 2001).
harmlessness
[or
substantial
justification].”
Yeti
by
Defendant has not shown that its failure to identify
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Captain
Aguilar
as
a
witness
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or . . . harmless.” Fed. R. Civ. P. 37(c)(1). Therefore, this
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was
“substantially
justified
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motion is granted.
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Dated:
May 27, 2015
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