Foster v. Berkeley Police Department et al

Filing 175

FINAL PRETRIAL SCHEDULING ORDER 160 161 162 163 (Illston, Susan) (Filed on 3/7/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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NADRA FOSTER,

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United States District Court
For the Northern District of California

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No. C 10-3703 SI

Plaintiff,

FINAL PRETRIAL SCHEDULING
ORDER

v.
CITY OF BERKELEY, ALEXANDER
McDOUGALL and ERIK KEENE,

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Defendants.

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On March 5, 2013, the Court held a final pretrial conference in the above captioned matter,

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which is set for jury trial beginning March 18, 2013. 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 7 members. Each side shall

have up to four peremptory challenges.

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2.

Voir dire: The court will conduct general voir dire, and counsel for each side shall have

up to 20 minutes total to question the panel.

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3.

Jury instructions: Counsel have separately submitted proposed jury instructions. No

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later than Thursday, March 14, 2013, counsel shall submit one complete set of proposed instructions,

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containing both agreed upon instructions (which shall be so noted), and contested instructions, all in the

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order in which they should be read to the jury. Where contested instructions are included, they should

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be annotated both with the proponent’s authority for seeking the instruction and the opponent’s reason

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for opposition. Where feasible, competing instructions addressing the same point shall be included

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together in the single set of proposed instructions. The final submission shall be filed in hard copy and

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also submitted to the court on disk, suitable for reading by WordPerfect 10 (windows) on or before

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March 14, 2013.

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4.

Trial exhibits: No later than March 15, 2013, the parties shall submit their trial exhibits,

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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.

United States District Court
For the Northern District of California

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5.

Timing of trial: The parties estimated that the trial should take approximately 7 days

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(plaintiff estimated between 5-10 days, and defendants estimated 7 days). Based on this estimate, each

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side shall have 45 minutes for opening statements; each side shall have 12 hours total for presentation

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of evidence, which includes direct and cross-examination and presentation of all exhibits; and each side

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shall have up to 60 minutes for closing argument.

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6.

Trial schedule: Jury trials are generally conducted Monday through Thursday; jury

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trials are generally not conducted on Fridays, although deliberating juries are free to deliberate on

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

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

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7.

Motions in liming: The parties filed motions in liming, as follows:

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Plaintiff’s No. 1 - to exclude testimony of Reshawn Goods: Plaintiff seeks to exclude

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the testimony of her former roommate on the grounds of relevance, hearsay and unfair prejudice under

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FIRE 403. The motion is DENIED, without prejudice to specific objections to specific questions at time

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of trial. Ms. Goods’ testimony that plaintiff told her that she had been banned from KPFA, that plaintiff

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had drunk alcohol before the incident, that plaintiff took pictures of her injuries, and that plaintiff never

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discussed either being pregnant or having a miscarriage are relevant to credibility. Ms. Goods’ bias
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against plaintiff, if any, may be explored in cross-examination.

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Plaintiff’s No. 2 - to exclude impermissible character evidence: Plaintiff seeks to preclude

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Racine Goods from testifying that plaintiff drank alcohol and smoked cannabis at the rental home they

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shared. The motion is DENIED as to the use of alcohol; such testimony may be relevant to credibility

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and damages. The motion is GRANTED as to cannabis, based on FIRE 403, unless plaintiff testifies

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concerning Ms. Goods’ bias against plaintiff based on their “personal feud” related to Ms. Goods’

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daughter’s asthma.
Plaintiff’s No. 3 - to exclude testimony concerning the identity of the putative father of

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plaintiff’s unborn child: Plaintiff seeks to exclude any questioning concerning who fathered the child

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United States District Court
For the Northern District of California

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she alleges she lost on account of the incident. The motion is DENIED, without prejudice to specific

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objections to specific questions at time of trial. The identity of the father is relevant to the existence of

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the pregnancy, credibility and damages.

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Plaintiff’s No. 4 - to exclude testimony of nurse Rolando Ilau: Plaintiff seeks to exclude

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testimony from nurse Rolando Ilau, who interviewed plaintiff prior to her admission to Santa Rita Jail.

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The motion is DENIED; this testimony is relevant to credibility and damages.

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Plaintiff’s No. 5 - to exclude testimony of Dr. Andrew Lin and for Daubert hearing:

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Plaintiff seeks to exclude testimony by defense expert Andrew Lin, an OB/GYN physician, who is

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prepared to testify that (1) plaintiff was not pregnant, based on the urine test administered by nurse Ilau,

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which registered negative for pregnancy; and (2) that plaintiff’s description of her miscarriage in jail

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is inconsistent with the way a miscarriage of a four-month pregnancy would normally occur. Plaintiff’s

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objection is to the adequacy of the foundation for Dr. Linn’s testimony. The motion is DENIED; Dr.

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Linn is able to testify to the medical significance of a negative urine test and to the likely physical

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consequences of a miscarriage at four months. Plaintiff’s objections, which do not implicate Daubert

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issues, would be grounds for cross-examination, not exclusion of the testimony.

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Plaintiff’s No. 6 - to exclude testimony Dr. Mark Levy and for Daubert hearing: Plaintiff

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seeks to exclude testimony by defense expert Mark Levy, a psychiatrist. Plaintiff’s objection is that Dr.

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Levy placed improper reliance on the testimony of plaintiff’s roommate, Reshawn Goods. The motion

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is DENIED; plaintiff’s objections, which do not implicate Daubert issues, would be grounds for cross3

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examination, not exclusion of the testimony.

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Plaintiff’s No. 7 - to exclude evidence of domestic violence in plaintiffs’ past: Plaintiff seeks

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to exclude evidence that she has been arrested twice in domestic-violence related situations, once in

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1998 when she allegedly bit her domestic partner on the arm, drawing blood; and once in 2011, when

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she allegedly suffered an injury to her left hand. The motion is GRANTED IN PART. On FRE 403

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grounds, the fact that plaintiff was arrested in these incidents is excluded. However, evidence that

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plaintiff previously bit her partner is relevant to her credibility, since she denied under oath ever having

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done so; and evidence that her left hand was injured in an incident after the one involved in this action

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is relevant to damages. See also Defendants’ Motion No. 8.

United States District Court
For the Northern District of California

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Plaintiff’s No. 8 - to prohibit reference to any witness as an “expert”: DENIED.

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Plaintiff’s Request for Judicial Notice under FRE 201: Plaintiff requests that the Court take

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judicial notice of the fact that an Administrative Law Judge determined that she was disabled and

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entitled to SSI benefits since August, 2008. The request is DENIED, absent further order of Court. At

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the Pretrial Conference, plaintiffs’ counsel indicated that she wished to introduce into evidence the

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attachments to the ALJ’s order.

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authentication by a qualified witness before introduction. See also Defendants’ No. 14.

These attachments, primarily medical records, would require

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Defendants’ No. 1 – to exclude prior citizen complaint against Officer McDougall:

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Defendants seek to prevent plaintiff from introducing or using a prior unsustained citizen complaint

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against defendant McDougall. The motion is GRANTED.

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Defendants’ No. 2 – to exclude lay opinion re excessive force: Defendants seek to exclude

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lay opinions concerning whether there were too many police officers on site or whether too much force

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was used. The motion is GRANTED as framed. Lay witnesses may testify to what they saw, but may

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not offer inadmissible opinion testimony.

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Defendants’ No. 3 – to exclude lay opinion testimony re racism in America: Defendants seek

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to exclude lay testimony re whether African Americans are more likely than others to be arrested, etc.

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The motion is GRANTED as framed. Lay witnesses may testify to what they saw, but may not offer

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inadmissible opinion testimony.

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Defendants’ No. 4 – to exclude third party testimony re plaintiff’s volunteer work at
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KPFA: GRANTED IN PART; no such witness may testify until an offer of proof, approved by the

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Court, is presented.

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Defendants’ No. 5 – to exclude evidence re supervisory authority at KPFA: DENIED,

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without prejudice to specific objections to specific questions at time of trial. The Court notes, however,

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that the issue of the lawfulness of plaintiff’s arrest has already been adjudicated. (“The Court concludes

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that McDougall’s arrest of plaintiff was supported by probable cause based on the totality of the

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circumstances known to McDougall. A reasonable police officer would have believed that Withers had

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the authority to request plaintiff to leave the station.” Order re Summary Judgment, p. 7)
Defendants’ No. 6 – to exclude Withers testimony that she saw gun: Defendants seek to

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United States District Court
For the Northern District of California

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exclude evidence that Lois Withers testified that she saw an unidentified officer with a gun drawn. The

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motion is GRANTED, based on FRE 403. Plaintiff testified that she did not see any officer with a gun

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drawn.

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Defendants’ No. 7 – to exclude testimony re personal trauma of Anita Johnson: Defendants

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seek to prevent Anita Johnson from testifying that she sought therapeutic treatment or suffered

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emotional trauma as a result of plaintiff’s arrest. The motion is GRANTED. Ms. Johnson may testify

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to what she observed, but her emotional state thereafter is not at issue in this action.

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Defendants’ No. 8 – to allow evidence of plaintiff’s prior arrests: Defendants seek to

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introduce evidence that plaintiff has been arrested several times before and was convicted twice for

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shoplifting, to show bias against police and/or a motive for bringing this action. DENIED as framed,

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FRE 403; but see also ruling re Plaintiff’s No. 7.

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Defendants’ No. 9 – to exclude evidence re Miranda warning: GRANTED, FRE 402 and 403;

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the issue of the lawfulness of plaintiff’s arrest has already been adjudicated and any failure to provide

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Miranda warnings is not relevant to the remaining issues in the case.

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Defendants’ No. 10 – to exclude evidence of defendants’ net worth: GRANTED, unless/until
case reaches phase of punitive damages.
Defendants’ No. 11 – to prevent plaintiff from introducing her own interrogatory
responses: GRANTED.
Defendants’ No. 12 – to exclude evidence of indemnification: GRANTED.
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Defendants’ No. 13 – to exclude evidence of criminal prosecution of plaintiff re this
incident: DENIED.
Defendants’ No. 14 – to exclude evidence of ALJ decision on plaintiff’s disability benefits:
GRANTED, absent further order of Court.
Defendant’s Motion to Bifurcate: The issue of punitive damages will be bifurcated from and
tried by the same jury after the initial liability/damage determination.

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: March 7, 2013
____________________________
SUSAN ILLSTON
United States District Judge

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