McCann v. Jupina et al

Filing 98

ORDER RE MOTIONS IN LIMINE. Signed by Magistrate Judge Jacqueline Scott Corley on 10/12/2017.(ahm, COURT STAFF) (Filed on 10/13/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WILLIAM DENIS MCCANN, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No.16-cv-03244-JSC ORDER RE MOTIONS IN LIMINE v. Re: Dkt. Nos. 85, 86, 87, 88, 90 DAVID JUPINA, et al., Defendants. 12 13 Plaintiff William D. McCann sues Defendants Dr. David Jupina and Tri Valley 14 Orthopedics & Sports Medicine Group, Inc. for medical malpractice. Now pending before the 15 Court is the parties’ motions in limine. (Dkt. Nos. 85, 86, 87, 88, and 90.) Having had the 16 opportunity to review the parties’ briefing and having had the benefit of oral argument at the 17 pretrial conference on October 12, 2017, the Court denies Defendants’ motions in limine one and 18 two, and grants Defendants’ motion three as stated on the record. The Court also grants 19 Defendants’ motion in limine four: the MIRCA applies. 20 The Court’s tentative view is to deny Plaintiff’s motion in limine one to exclude character 21 evidence. While the motion did not identify any particular evidence, at oral argument Plaintiff 22 explained he was seeking to exclude a 2005 state conviction for filing a false tax return. The 23 Court’s tentative view is that the conviction is admissible pursuant to Federal Rule 609(a)(2) 24 which permits attacking a witness’s character for truthfulness by requiring the admittance of a 25 criminal conviction “for any crime regardless of the punishment...if the court can readily 26 determine that establishing the elements of the crime required proving – or a witness admitting – a 27 dishonest act or false statement. See U.S. v. Leyva, 659 F.2d 118, 121 (9th Cir. 1981) (defendant’s 28 prior conviction of misdemeanor welfare fraud would have been admissible to impeach and Rule 1 403 has no application due to the specificity of Rule 609(a)(2)). The Court notes, however, that 2 Rule 609(b) provides that if a conviction is more than 10 years old, or more than 10 years has 3 elapsed since the release from confinement, whichever is later, a Rule 403(b) analysis does apply 4 and the proponent of using the conviction must give written notice of his intent to do so. See Fed. 5 R. Evid. 609(b); American Home Assur. Co. v. American President Lines, Ltd., 44 F.3d 774, 779 6 (9th Cir. 1994). 7 8 9 10 United States District Court Northern District of California 11 Plaintiff may file a supplemental brief on the admissibility of the conviction by October 19, 2017. Defendants shall file a response by October 26, 2017. This Order disposes of Docket Nos. 85, 86, 87, and 88. IT IS SO ORDERED. Dated: October 12, 2017 12 13 JACQUELINE SCOTT CORLEY United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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