McCann v. Jupina et al

Filing 108

FURTHER PRETRIAL ORDER RE PLAINTIFF'S MOTION IN LIMINE NO. 1. Signed by Magistrate Judge Jacqueline Scott Corley on 10/30/2017. (ahm, COURT STAFF) (Filed on 10/30/2017) Modified on 10/30/2017 (ahm, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM DENIS MCCANN,
Plaintiff,

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v.

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DAVID JUPINA, et al.,
Defendants.

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United States District Court
Northern District of California

Case No.16-cv-03244-JSC
FURTHER PRETRIAL ORDER RE
PLAINTIFF’S MOTION IN LIMINE
NO. 1
RE: Dkts. No. 90, 99

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The Court held a telephone hearing on October 27, 2017 regarding two matters. As stated
on the record the Court rules as sets forth below.
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As Defendants agreed, they shall provide Plaintiff with copies of the deposition

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excerpts they intend to read at trial. To the extent Plaintiff wishes to review the entire transcript,

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Plaintiff may order the transcript from the Court reporter as every other litigant in California does.

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See Cal. Code. Civ. Pro. § 2025.510(c); Las Canoas Company v. Kramer, 216 Cal.App.4th 96,

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100 (2013).

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2.

Plaintiff’s motion in limine to exclude admission of his 2005 conviction is

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GRANTED. Federal Rule of Evidence 609 governs the admissibility of a prior conviction for

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impeachment purposes. Defendants bear the burden of proving the conviction’s admissibility

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under this Rule. See Untied States v. Portillo, 633 F.2d 1313, 1323 (9th Cir. 1980). They have not

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met their burden.

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Federal Rule of Evidence 609(a)(2) provides that evidence attacking a witness’s character

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for truthfulness by evidence of a criminal conviction must be admitted if the court can readily

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determine that establishing the elements of the crime required proving or the witness admitting a

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dishonest act or false statement. Federal Rule of Evidence 609(b) provides that if more than 10

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years have passed since the witness’s conviction or release from confinement for it, whichever is

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later, evidence of the conviction is admissible only if:

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(1) its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect; and

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(2) the proponent gives an adverse party reasonable written
notice of the intent to use it so that the party has a fair opportunity to
contest its use.

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Fed. R. Evid. 609(b). It is undisputed that Plaintiff was convicted in 2005 and Defendants have

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not established that Plaintiff was released from confinement less than ten years ago. Thus, Rule

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609(b) applies. The Court declines to admit the conviction under this Rule.
First, Defendants did not give Plaintiff reasonable written notice of their intent to use the

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United States District Court
Northern District of California

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conviction at trial. To the contrary, Plaintiff raised the issue at the pretrial conference. And when

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the Court expressed frustration that the conviction was being raised orally for the first time at that

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late date, Defendants insisted that because the conviction was impeachment evidence, they did not

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have to disclose their intent to use. Defendants were wrong. See Fed. R. Evid. 609(b)(2) (to

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attack a witness’s character for truthfulness by evidence of a criminal conviction “the proponent

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gives an adverse party reasonable written notice of the intent to use it”).
Second, the conviction’s probative value does not “substantially outweigh” its prejudicial

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effect. In United States v. Cook, 608 F.2d 1175, 1185 n. 8 (9th Cir. 1971), the Ninth Circuit

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“outlined five factors which a district court should consider in balancing the probative value of

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evidence of a defendant’s prior convictions against that evidence’s prejudicial effect: (1) the

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impeachment value of the prior crime; (2) the point in time of the conviction and the witness’

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subsequent history; (3) the similarity between the past crime and the charged crime; (4) the

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importance of the defendant’s testimony; and (5) the centrality of the defendant’s credibility.”

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Generally, the decision of whether to admit evidence of a prior conviction under Rule 609 is a

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matter of the trial court’s discretion. United States v. Perkins, 937 F.2d 1397, 1406 (9th Cir.

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1991).

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Four factors weigh against admitting Plaintiff’s conviction. Eleven years lapsed between
Plaintiff’s conviction in 2005 and Plaintiff’s filing of this suit in 2016. While the Ninth Circuit
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has not drawn a bright line as to the age upon which a prior conviction is impermissible for

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impeachment purposes, see United States v. Spillone, 879 F.2d 514, 519 (9th Cir. 1989),

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Defendant has not cited a single case in which the Ninth Circuit has permitted a tax evasion

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conviction of similar age to be used to impeach a defendant. Nor can the Court find any.

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The third factor also weighs against admitting the conviction. There is no similarity

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between tax evasion and bringing a claim for medical negligence. The fact Plaintiff made

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misrepresentations on his tax forms has no bearing on the fact that Plaintiff had knee surgery and

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alleges that Dr. Jupina negligently failed to identify the infection which necessarily led to a second

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surgery.
Nor is Plaintiff’s testimony or credibility of great importance. It is undisputed that

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United States District Court
Northern District of California

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Plaintiff’s knee was infected. Whether Dr. Jupina was negligent in identifying this infection is not

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dependent upon Plaintiff’s veracity. It is primarily Dr. Jupina’s testimony and the testimony of

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expert witnesses that will aid a fact finder in evaluating the central issue in the case - what

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standard of care Dr. Jupina owed Plaintiff and whether Dr. Jupina breached his duty in providing

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that care.

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Only factor one, the impeachment value of tax evasion - a crime that undeniably concerns

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a dishonest act or false statement - weighs in favor of admitting the conviction. However, in light

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of the four other factors, the Court concludes that Defendants have not met their burden to show

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the conviction’s probative value substantially outweighs its prejudicial effect. Accordingly, the

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Court GRANTS Plaintiff’s motion in limine one.

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This Order disposes of Docket Nos. 90, and 99.

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IT IS SO ORDERED.

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Dated: October 30, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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