Curtis v. City of Oakland et al

Filing 204

FINAL PRETRIAL SCHEDULING ORDER 165 166 167 168 169 171 173 174 175 193 (Illston, Susan) (Filed on 3/19/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RONALD EL-MALIK CURTIS,

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United States District Court
For the Northern District of California

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No. C 10-00358 SI

Plaintiff,

FINAL PRETRIAL SCHEDULING ORDER

v.
CITY OF OAKLAND, et al.,

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Defendants.

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On March 17, 2015, the Court held a final pretrial conference in the above captioned matter,

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which is set for jury trial beginning August 10, 2015. All parties were represented by counsel. The

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following matters were resolved:

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1.

Number of jurors and challenges: There shall be a jury of 8 members. Each side shall

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have up to four peremptory challenges. (At the pretrial conference, trial time was estimated to be 10

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days (2 trial weeks), and 1 additional juror appeared sufficient. Trial time has now been estimated at

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16 days (4 trial weeks), so 2 additional jurors are warranted.)

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2.

Voir dire:

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(A) Questionnaires: The parties have requested and received permission to use a written

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questionnaire as part of voir dire. Fifty blank copies of the questionnaire, as approved by the Court,

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shall be provided by the parties to the jury officer no later than 2:00 p.m. on Thursday, August 6. The

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jury panel will complete the questionnaire on Friday, August 7, 2015. Counsel for the parties may

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retrieve the completed questionnaires by noon on August 7, 2015. Counsel shall make 3 copies of

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the completed questionnaires (one for each side, and one for the Court). Before 4:30 pm on August 7,

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2015, the parties shall confer to determine whether any of the panel members could be excused by

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stipulation; if so, and if the Court agrees, then such jurors will be informed that they need not appear

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on Monday. All other panel members will be directed to return at 8:30 a.m. on Monday, August 10,

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2015, for voir dire.

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(B) Voir dire: The Court will conduct general voir dire, and counsel for each side shall
have up to 30 minutes total to question the panel.

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3.

Trial exhibits: No later than August 6, 2015, the parties shall submit their trial exhibits,

United States District Court
For the Northern District of California

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in binders with numbered tabs separating and identifying each exhibit. The court shall be provided with

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three sets (for the court, the file and the witness) and each side shall provide one set for the other side.

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To the extent that original documents are to be used as exhibits in the case, they should be included in

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the set of exhibits for the court.

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4.

Timing of trial: The parties have now estimated that the trial can be completed in 4 trial

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weeks (4 days per trial week). Based on this estimate, each side shall have 45 minutes for opening

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statements; each side shall have 25 hours total for presentation of evidence, which includes direct and

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cross-examination and presentation of all exhibits; and each side shall have up to 60 minutes for closing

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argument on liability and damages. Should there be a punitive damage phase after the initial verdict,

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each side will have one additional hour for presentation of evidence, and 30 minutes for further

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argument. This extended schedule, and the delayed start date for the trial, have been developed based

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on the parties’ extensive witness lists. The parties are encouraged, however, to reexamine their trial plan

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(56 witnesses are currently listed) in an effort to streamline the trial.

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5.

Trial schedule: Jury trials are generally conducted Monday through Thursday. The trial

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day runs from 8:30 a.m. until 3:30 p.m., with a 15 minute break at 10:00 a.m., a 45 minute break at

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12:00 noon and a 15 minute break at 2:00 p.m., all times approximate.

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6.

Motions in limine: The parties filed numerous motions in limine, as follows:

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Plaintiff’s No. 1 - motion to exclude evidence of plaintiff’s financial condition:

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GRANTED. Plaintiff’s financial condition is irrelevant to the question of liability. If defendants wish

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to introduce statements plaintiff made in his bankruptcy petition they may do so without referencing the

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nature of the proceeding. If defendants wish to inquire about plaintiff’s other work as a realtor, they

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must seek Court approval with an offer of proof before doing so.
Plaintiff’s No. 2 - motion to exclude testimony of defendant's expert Dr. Rappaport:

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DENIED. Dr. Rappaport’s testimony is not relevant to the question of liability; it only concerns

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damages for emotional distress. Plaintiff has listed three treating mental health witnesses (two

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United States District Court
For the Northern District of California

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psychologists and a clinical social worker) to testify about plaintiff’s “condition” and the “etiology of

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Mr. Curtis’ condition, including job stressors of hostile work environment and retaliation.”

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Accordingly, defendants were entitled to have a mental health expert examine plaintiff prior to trial, and

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are entitled to have their expert explain his observations concerning emotional distress. Dr. Rappaport

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is a board certified psychiatrist, and plaintiff does not dispute his credentials as an expert; rather,

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plaintiff complains, without explanation, that his testimony is “speculative” and “without scientific

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foundation.” It is not clear, from reviewing Dr. Rappaport’s report, why plaintiff finds it any more

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speculative or less scientific than plaintiff’s anticipated mental health experts’ opinions. Plaintiff fears

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that “behind the cloak of his academic qualifications, Dr. Rappaport will seek to offer testimony

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concerning Mr. Curtis’ credibility.” Such testimony will not be allowed, either by Dr. Rappaport or by

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plaintiff’s mental health witnesses. With that exception, plaintiff’s motion is denied.

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Defendants’ No. 1 - motion to exclude testimony of plaintiff’s expert Robert

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Demmons: DENIED, without prejudice to objecting to specific testimony at time of trial. Demmons’

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testimony will be limited to the opinions provided in his report. His opinions regarding the inadequacy

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of the internal reporting and investigation procedures is relevant to plaintiff’s claims. In particular,

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Demmons’ report notes that (1) EEO investigators are often intimidated by and feel beholden to the very

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firefighters they are charged with investigating, (2) unlike in Oakland, the San Francisco Fire

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Department instituted a proactive anti-discrimination policy so as to take the onus off of victims to file

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complaints, (3) defendants failed to follow the policies and procedures that were in place in Oakland,
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(4) based on his experience, the perpetrators of the “smeared honey” incident “would have been

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disciplined for harassment against a fellow firefighter.” Additionally, his testimony on the team

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dynamics in fire stations–in particular, the importance of promoting trust and cohesiveness–may be

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relevant to the issue of whether the alleged hostile conditions were “severe and pervasive.”
Defendants’ No. 2 - motion to exclude plaintiff’s notes: GRANTED; unopposed.

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Defendants’ No. 3 - motion to exclude evidence of discriminatory acts by defendants

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after plaintiff left Station 1: DENIED, without prejudice to specific objections to specific questions

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at time of trial. Evidence that individual defendants engaged in discriminatory conduct is relevant to

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showing the “pervasiveness of the conduct at issue.” See Morgan v. Nat'l R.R. Passenger Corp., 232

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United States District Court
For the Northern District of California

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F.3d 1008, 1018 (9th Cir. 2000) aff'd in part, rev'd in part on other grounds, and whether plaintiff was

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exposed to a hostile work environment “because of” his race. See id.

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(citing Heyne v. Caruso, 69 F.3d 1475, 1479 (9th Cir. 1995)) (“This court has previously recognized

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that an employer’s conduct tending to demonstrate its general hostility towards a group is both relevant

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and admissible.”).

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Defendants’ No. 4 - motion to exclude all evidence of history of discrimination

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before the relevant time period and at locations other than Station No. 1: DENIED, for the same

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reasons as Def. Mot. No. 3, without prejudice to specific objections to specific questions at time of trial.

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In this, as in other areas, the Court will make efforts to assure the efficient trial of this case, by excluding

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evidence that is unduly time-consuming in light of its probative value. In particular, the probative value

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of evidence of discrimination from the 19th century is likely outweighed by its consumption of time,

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and tendency to be unduly prejudicial or confusing.

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Defendants’ No. 5 - motion to bifurcate trial of punitive damages: GRANTED;

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unopposed. The same jury will decide all issues, but the issue of punitive damages will be addressed

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only if the jury makes the appropriate initial finding.

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Defendants’ No. 6 - motion to exclude evidence of other lawsuits and verdicts:

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GRANTED. Lawsuits involving other individual defendants, and different circumstances would have

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limited probative value while creating a high risk of undue prejudice and excessive consumption of time.

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FRE 403. No such evidence will be allowed, absent specific offer of proof and permission of Court.
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Defendants’ No. 7 - motion to exclude evidence not properly disclosed: DENIED,
without prejudice to specific rulings on specific evidence at time of trial.

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Defendants’ No. 8 - motion to exclude testimony by plaintiff’s expert Dr. Guillory:

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DENIED. Dr. Guillory treated plaintiff, through Oakland’s Employee Assistance referral, a total of six

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times in the fall of 2008 and fall of 2009. If he was properly disclosed, he may testify, as a treater, to

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what he observed, diagnosed and prescribed. If he did not prepare a report, he may not provide opinions

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beyond his observations of plaintiff during treatment.

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: March 19, 2015
SUSAN ILLSTON
United States District Judge

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