Ashker v. Alameida et al

Filing 379

AMENDED ORDER re 378 Order on Motions in Limine (CORRECTING SIGNATURE DATE). Signed by Judge Claudia Wilken on 5/6/09. (scc, COURT STAFF) (Filed on 5/6/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Plaintiff's Motions in Limine Docket # 307: Granted in part and denied in part. No. 1: Exclusion of particulars of convictions. The Court v. MICHAEL C. SAYRE, et al., Defendants. / TODD L. ASHKER, Plaintiff, No. C 05-3759 CW AMENDED ORDER ON MOTIONS IN LIMINE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

grants this motion and excludes the particulars of Plaintiff's and the inmate-witnesses' past convictions, except that the number of prior felony convictions Plaintiff and each witness have received will be admitted. No. 2: Exclusion of alleged gang status references. The

Court grants this motion regarding Plaintiff and the inmatewitnesses. No. 3: Trial appearance issues. Plaintiff and the inmate-

witnesses will wear their usual garb and the restraints their custodians find necessary. However, Plaintiff's arms must be free

enough to allow him to take notes and handle exhibits. No. 4: Evidence of related cases. The motion to allow

evidence of other lawsuits in which Plaintiff was a party is denied. The amount of Plaintiff's past damages award is also

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excluded.

Plaintiff may testify to relevant, admissible facts

regarding his injury and medical treatment, and may use charts or summaries of voluminous medical records. However, any such charts

may contain only brief objective summaries of the records in question, including the date, person involved and subject. charts Plaintiff has provided do not fit this criterion. regarding waist chains may not be included in the charts. No. 5: Request for clarification as to the applicable law The

Evidence

relating to medical care claims and application to this case, relating to expert qualification and testimony. The motion for The standard of

clarification of the standard of care is granted.

care on the state law claim is that which is reasonably exercised by members of the medical profession in the community at large, modified to the extent required by prison security concerns. Mann v. Cracchiolo, 38 Cal. 3d 18, 36 (1985). testify as an expert. See

Dr. Weinstein may

The Court has considered his proffered

testimony and Defendants' arguments and finds that the testimony is sufficiently relevant and reliable to be presented to the jury. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Dr. Duncan may testify as to the facts he learned in the course of his treatment of Plaintiff, and his medical opinion based on those facts. denied. No. 6: (Docket # 308) Motion to permit video tape evidence The motion to exclude certain testimony from Dr. Shin is

and reference to evidence of previous and current malpractice acts and/or medical board inquiries. The motion to admit the

surveillance video tape provided by Defendants is granted. 2

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Plaintiff may introduce the surveillance tape that he was shown, and its box. trial. Defendants shall make this evidence available at

Plaintiff may testify and argue that the video tape

provided by Defendants could not be the one Dr. Sayre said he saw. However, the video tape Plaintiff believes exists cannot be shown because it has not been located. The motion to allow Dr. Allen to

testify to previous and current acts of malpractice by Dr. Sayre is granted, in part. not as an expert. Dr. Allen may testify as a percipient witness, He may testify to his personal knowledge of

Pelican Bay State Prison's procedures for medical care or referral to medical specialists, to any direct observations of Dr. Sayre's malpractice that are probative of similar treatment of Plaintiff, or to any admissions by Dr. Sayre. Testimony about an inmate's

death in Washington and about a medical board investigation of Dr. Sayre that Dr. Allen initiated is excluded. No. 7: (Docket # 309) Motion to allow Plaintiff to pose

hypothetical questions to UC Davis Doctors Fishman and Kreis and to question Dr. Sayre. The motion to allow Plaintiff to ask

hypothetical questions of Drs. Fishman and Kreis is denied. Plaintiff may ask Dr. Sayre non-hypothetical questions regarding his declarations, the medical records, and his diagnosis and treatment of Plaintiff. II. Defendants' Motions in Limine No. 1: (Docket # 287) Motion to exclude testimony designed This motion is denied.

to appeal to jurors' sympathy or prejudice.

Defendants may object to any inadmissible testimony or improper argument. 3

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No. 2:

(Docket # 288)

Motion to preclude Plaintiff from This motion

posing hypothetical questions to non-expert witnesses. is granted. No. 3: (Docket # 289)

Motion to exclude reference to or

evidence of current or potential medical malpractice actions against Dr. Sayre. This motion is granted, assuming that any such

actions have not been resolved. No. 4: (Docket # 291) Motion to preclude Plaintiff's experts This

from testifying regarding alternative standards of care. motion is denied.

The Court has defined the appropriate standard

of care above, in addressing Plaintiff's motion in limine number 5. No. 5: testifying. (Docket # 326) Motion to preclude Dr. Allen from

This issue was discussed in regard to Plaintiff's

motion in limine number 6. No. 6: testifying. (Docket # 323) Motion to preclude Dr. Weinstein from See Plaintiff's motion in

This motion is denied.

limine number 5. No. 7: (Docket # 327) Motion to strike Plaintiff's

supplemental notice designating Dr. Duncan as an expert witness and to preclude Dr. Duncan from testifying regarding his treatment of Plaintiff after March 6, 2002. The motion to strike is denied. As

Plaintiff's former treating physician, Dr. Duncan may present his opinion of causation, diagnosis and prognosis derived from his treatment of Plaintiff. However, he may not testify to any

opinions he formed based on facts that were not learned by him within the course of his treatment of Plaintiff. No. 8: (Docket # 333) Motion to preclude Dr. Weinstein from 4

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testifying that Dr. Sayre was deliberately indifferent to Plaintiff's medical needs. No. 9: (Docket # 343) This motion is granted. Motion to restrict Dr. Weinstein's

testimony to his stated opinion that Dr. Sayre intentionally altered Plaintiff's medical treatment to harm Plaintiff. motion is denied. IT IS SO ORDERED. 5/6/09 Dated: 5/6/00 CLAUDIA WILKEN United States District Judge This

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Todd A. Ashker C58191 Pelican Bay State Prison Box 7500 D1-119 Crescent City, CA 95532 Dated: May 6, 2009 ASHKER, Plaintiff, v. ALAMEIDA ET AL et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV05-03759 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 6, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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