Broussard v. McCloskey et al

Filing 152

FINAL PRETRIAL ORDER. Signed by Judge Alsup on May 1, 2012. (whalc1, COURT STAFF) (Filed on 5/1/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FRED BROUSSARD,

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For the Northern District of California

United States District Court

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No. C 10-04997 WHA

Plaintiff,
v.

FINAL PRETRIAL ORDER

JOHN MCCLOSKEY, CITY AND
COUNTY OF SAN FRANCISCO
Defendants.

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/

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FOR GOOD CAUSE and after a final pretrial conference, the Court issues the
following final pretrial order:
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This case shall go to a JURY TRIAL on or after MAY 7, 2012, at 7:30 A.M., and

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shall continue until completed on the schedule discussed at the conference. The issues to be

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tried shall be those set forth in the joint proposed pretrial order except to the extent modified by

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order in limine. This final pretrial order supersedes all the complaint, answer and any

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counterclaims, cross-claims or third-party complaints, i.e., only the issues expressly identified

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for trial remain in the case.

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2.

Rulings on the motions in limine
(A)

For the reasons stated at the hearing, defendants’ motion in limine

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number one is DENIED WITHOUT PREJUDICE. The adjudication of this

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motion depends on the extent that defendants, and specifically, Sergeant

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McCloskey, argue mistake at trial. No reference to the 1997 incident

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shall be made during opening statements.

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(B)

For the reasons stated at the hearing, defendants’ motion in limine

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number two is GRANTED IN PART. By the end of business today at

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5:00 p.m., defendants’ counsel must provide a list of three weekdays he

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would be available to take Dr. Shirley Stiver’s deposition. Then, the

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burden shifts to plaintiff’s counsel to pick one of those three days and to

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guarantee Dr. Stiver’s attendance. If Dr. Stiver is not deposed, then she

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will not be allowed to testify at trial.
(C)

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For the reasons stated at the hearing, defendants’ motion in limine
number three is GRANTED. Plaintiff filed a statement of non-opposition.

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For the Northern District of California

United States District Court

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(D)

For the reasons stated at the hearing, defendants’ motion in limine

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number four is GRANTED IN PART. Plaintiff may have some latitude on

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questioning the venire about unrelated incidences of police brutality

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during voir dire. Plaintiff may not refer to unrelated incidences during

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opening statement and presentation of evidence. The extent to which

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unrelated incidences can be referred to during closing is yet to be

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determined.

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(E)

For the reasons stated at the hearing, plaintiff’s motion in limine number

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one is GRANTED IN PART. Evidence of the alleged drug deal

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immediately prior to the arrest can be presented through firsthand

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knowledge only. Plaintiff’s other arrests and allegations of domestic

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violence are excluded unless plaintiff first opens the door.

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(F)

For the reasons stated at the hearing, plaintiff’s motion in limine number

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two is DENIED WITHOUT PREJUDICE. It is premature to decide the

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extent to which Dr. William Hooker can testify regarding emotional

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distress. No reference to Dr. Hooker can be made during opening

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statements.
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(G)

For the reasons stated at the hearing, plaintiff’s motion in limine number

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three is DENIED WITHOUT PREJUDICE. The extent to which Dr. Rajeev

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Kelkar can testify will be determined at the end of plaintiff’s case in

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chief.

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(H)

For the reasons stated at the hearing, plaintiff’s motion in limine number

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four is GRANTED IN PART. The police report regarding the domestic

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violence incident will be excluded unless plaintiff opens the door. Even

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then, it is unlikely that the actual report can come into evidence. The

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motion is denied with regard to plaintiff’s medical records.
(I)

For the reasons stated at the hearing, plaintiff’s motion in limine number

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For the Northern District of California

United States District Court

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five is DENIED WITHOUT PREJUDICE. Defendants have agreed to scale

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back Dr. Hooker’s testimony. The extent to which Dr. Hooker has

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sufficient foundation to testify about crack cocaine use must be

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determined in a hearing outside the presence of the jury. Defendants

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have a good faith basis to ask whether plaintiff is a crack cocaine addict.
Two caveats: Any denial above does not mean that the evidence at issue in the

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motion is admitted into evidence — it must still be moved into evidence, subject to other

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possible objections, at trial. And, a grant of a motion in limine does not exclude the

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evidence under any and all circumstances; the beneficiary of a grant may open the door

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to the disputed evidence, for example.

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3.

Except for good cause, each party is limited to the witnesses and exhibits

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disclosed in the joint proposed final pretrial order less any excluded or limited by an order

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in limine. Materials or witnesses used solely for impeachment need not be disclosed and may

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be used, subject to the rules of evidence.

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4.

The stipulations of facts set forth in the joint proposed final pretrial order are

approved and binding on all parties.
5.

A jury of EIGHT PERSONS shall be used.

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6.

Each side shall have EIGHT HOURS to examine witnesses (counting direct

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examination, cross-examination, re-direct examination, re-cross examination, etc.).

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Opening statements and closing arguments shall not count against the limit. If, despite being

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efficient, non-duplicative, and non-argumentative in the use of the allotted time, one side runs

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out of time and it would be a miscarriage of justice to hold that side to the limit, then more time

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will be allotted.

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7.

The parties shall follow the Court’s current Guidelines for Trial and

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Final Pretrial Conference, separately provided and available on the Internet at

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http://www.cand.uscourts.gov, which guidelines are incorporated as part of this order.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: May 1, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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