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