Cotton et al v. City of Eureka, California et al

Filing 212

SUPPLEMENTAL ORDER RE MOTIONS IN LIMINE. Signed by Judge 9/7/11 on 9/7/11. (lrc, COURT STAFF) (Filed on 9/8/2011)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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7 SIEHNA M. COTTON, a minor, by and

Megan McClure, her guardian ad litem; and
8 MARTIN COTTON, SR., an individual,
Plaintiffs,

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Case No: C 08-04386 SBA
SUPPLEMENTAL ORDER RE
MOTIONS IN LIMINE AND
ORDER FOR FURTHER BRIEFING

vs.

11 CITY OF EUREKA, CALIFORNIA, a

political subdivision of the State of California,
12 COUNTY OF HUMBOLDT, CALIFORNIA,

a political subdivision of the State of
13 California, et al.,

Defendants.

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The instant civil rights action under 42 U.S.C. § 1983 arises from the death of

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Martin Cotton II (“Decedent”), who allegedly was beaten by City of Eureka (“the City”)

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police officers, and died hours later of a subdural hematoma while in custody at the

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Humboldt County Correctional Facility (“HCCF”). Plaintiffs have alleged claims for

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excessive force and deliberate indifference to serious medical needs against the City and

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certain of its officers (collectively “City Defendants”), a claim for deliberate indifference to

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serious medical needs against the County of Humboldt (“the County”) and various HCCF

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correctional officers (collectively “County Defendants”)1, and related federal and state law

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claims against these Defendants.

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Since the County and Devin Strong no longer are party-defendants to this action,
“County Defendants” refers to HCCF correctional officers Dennis Griffin, Chet
28 Christensen, Fernando Cangas and Frances Morgan.
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On December 14, 2010, the Court issued a written decision on the parties’ motions

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in limine. Cotton v. City of Eureka, No. C 08-4386 SBA, 2010 WL 5154945 (N.D. Cal.

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Dec. 14, 2010), Dkt. 147. Subsequently, on August 31, 2011, the Court issued its ruling on

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the County Defendants and the City Defendants’ respective motions for summary

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judgment. Based on that ruling, the Court sua sponte reconsiders and clarifies certain of its

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rulings on the parties’ motions in limine. See Amarel v. Connell, 102 F3d 1494, 1515 (9th

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Cir. 1996) (citation omitted) (“the interlocutory orders and rulings made pre-trial by a

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district judge are subject to modification by the district judge at any time prior to final

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judgment”).2

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I.

DISCUSSION
A.

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COUNTY DEFENDANTS’ MOTION IN LIMINE NO. 1
1.

Use of a Taser

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The County Defendants previously moved to exclude various opinions of Plaintiffs’

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expert, Roger Clark, including his opinions that a taser was used on the Decedent while he

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was in the sobering cell. County Defs.’ Mot. in Limine at 2, Dkt. 123. Mr. Clark claimed

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that in reviewing the surveillance recordings showing the Decedent in the sobering cell, he

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observed that a taser was used on the Decedent. Given the record then presented, the Court

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denied the County Defendants’ motion in limine to exclude Mr. Clark’s opinions regarding

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the use of a taser. Cotton, 2010 WL 5154945, at *19.

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In reviewing the County Defendants’ motion for summary judgment, the Court

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concluded that, in fact, there is no factual basis to support Mr. Clark’s assertion that a taser

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was discharged. Id. In view of that finding, Plaintiffs agreed at the pretrial conference that

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there is no foundation upon which Mr. Clark can render any opinions regarding the use of a

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taser. Therefore, the Court reconsiders its prior ruling and GRANTS the County

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Defendants’ motion in limine no. 2. At trial, Mr. Clark may not offer any testimony related

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to the use of a taser by any County correctional officer on the Decedent.

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The Court discussed its intention to reconsider these rulings at the pretrial
conference held on September 6, 2011, and allowed counsel to be heard on these issues.
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2.

Speculative Opinions

Plaintiffs intend to elicit expert testimony from Mr. Clark that the County

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Defendants were deliberately indifferent to the Decedent’s serious medical needs. To

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establish a claim for deliberate indifference, the plaintiff must show (1) “a serious medical

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need by demonstrating that ‘failure to treat a prisoner’s condition could result in further

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significant injury or the unnecessary and wanton infliction of pain,” and (2) that “the

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defendant’s response to the need was deliberately indifferent.” Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006) (internal quotations and citations omitted). To demonstrate the

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“deliberate indifference” prong of this test, “a plaintiff must show that the official was

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(a) subjectively aware of the serious medical need and (b) failed adequately to respond.”

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Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017-18 (9th Cir. 2010) (internal

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quotations and citations omitted, emphasis added). In other words, a plaintiff must show

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that defendant not only was “aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists,” but also that he or she actually drew the inference.

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Farmer, 511 U.S. at 837. If the defendant “should have been aware of the risk,” but

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nevertheless was not actually aware, the defendant “has not violated the Eighth

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Amendment, no matter how severe the risk.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th

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Cir. 2004) (internal quotations and citations omitted).

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In their first motion in limine, the County Defendants moved to preclude Mr. Clark’s

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opinion testimony on the grounds that it was speculative and lacked foundation. Cotton,

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2010 WL 5154945, at *17-*18. The Court rejected the County Defendants’ argument and

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ruled that Mr. Clark had provided a factual basis for his opinions. Id. During the course of

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the pretrial conference, however, counsel for the County Defendants clarified that his

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position, in fact, is that expert testimony—on behalf of either Plaintiffs or the County

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Defendants—is inappropriate to establish the County Defendants’ subjective knowledge.

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Based upon counsel’s clarification, the Court agrees that Mr. Clark cannot offer such

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opinions. As explained in Farmer, “[w]hether [defendants] had the requisite knowledge of

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a substantial risk is a question of fact subject to demonstration in the usual ways, including
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inference from circumstantial evidence, and a factfinder may conclude that [defendants]

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knew of a substantial risk from the very fact that the risk was obvious.” Id. at 837. As

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such, expert testimony is inappropriate to establish the County Defendants’ subjective

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awareness of the Decedent’s serious medical needs. See Gobert v. Caldwell, 463 F.3d 339,

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348 n.29 (5th Cir. 2006) (“As we must focus on [the defendant’s] subjective knowledge,

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expert testimony cannot create a question of fact as to what [defendant] actually knew.”).

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In view of the foregoing, the Court reconsiders its ruling on the County Defendants’

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motion in limine no. 1, and GRANTS the motion to the extent that Mr. Clark intends to

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testify regarding the subjective knowledge of the County Defendants. In addition, Mr.

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Clark may not offer legal conclusions or speculative factual conclusions based on their

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purported subjective knowledge, including, without limitation, that: the County

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Defendants’ conduct was “intentional, reckless and dangerous; their actions “reflected a

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callous disregard for the life and safety of Mr. Cotton”; they disregarded the Decedent’s

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serious medical condition; or that they “have no legitimate claim that they did not, or could

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not know of Mr. Cotton’s serious injuries when he was booked into the jail.” See County

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Defs.’ Mots. in Limine at 1-2; Clark Expert Report ¶ 11, 12, Dkt. 118-1. These

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determinations are the province of the trier of fact, based on its assessment of the evidence

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and testimony presented. See Farmer, 511 U.S. at 837.

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The above notwithstanding, the County Defendants’ motion in limine is DENIED to

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the extent it seeks to foreclose Mr. Clark’s testimony that HCCF policies and professional

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standards of practice required the County Defendants to medically assess the Decedent and

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to provide him with immediate medical treatment under the circumstances presented. Such

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testimony constitutes circumstantial evidence which, if credited by the trier of fact, could

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cast doubt on the County Defendants’ claim that they were subjectively unaware of the

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Decedent’s need for immediate medical attention. See Gobert, 463 F.3d at 348 n.29 (“We

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caution that the expert testimony is only probative of what inferences [the defendant

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physician], himself, could have made; whether he should have made the connection is

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irrelevant to this analysis.”) (emphasis added); Watson v. Torruella, No. CIV S-06-1475
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LKK EFB P, 2009 WL 3246805, at *6 (E.D. Cal. Oct. 7, 2009) (finding that expert

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testimony that the defendant physician failed to follow standard diagnostic procedures

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could provide the jury with circumstantial evidence that the physician was subjectively

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aware of the risk his treatment caused); see also Lolli v. County of Orange, 351 F.3d 410,

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421 (9th Cir. 2003) (“[T]he officers’ indifference to [plaintiff]’s extreme behavior, his

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obviously sickly appearance and his explicit statements that he needed food because he was

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a diabetic could easily lead a jury to find that the officers consciously disregarded a serious

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risk to [plaintiff]’s health. Much like recklessness in criminal law, deliberate indifference

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to medical needs may be shown by circumstantial evidence when the facts are sufficient to

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demonstrate that a defendant actually knew of a risk of harm”).

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B.

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Plaintiffs have alleged a § 1983 claim against the City under Monell v. Dep’t of Soc.

CITY DEFENDANTS’ MOTION IN LIMINE NO. 14

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Servs., 436 U.S. 658 (1978) based on a “failure to train.” “[T]he inadequacy of police

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training may serve as a basis for § 1983 liability only where the failure to train amounts to

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deliberate indifference to the rights of persons with whom the police come into contact.”

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City of Canton v. Harris, 489 U.S. 378, 388 (1989). “Failure to train may amount to a

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policy of ‘deliberate indifference,’ if the need to train was obvious and the failure to do so

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made a violation of constitutional rights likely.” Dougherty v. City of Covina, -- F.3d --,

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2011 WL 3583404, at *6 (9th Cir. Aug. 16, 2011) (citing City of Canton, 489 U.S. at 390).

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The Supreme Court recently reiterated the difficultly of proceeding on such a claim, noting

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that “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a

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claim turns on a failure to train.” Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011).

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To state a failure to train claim, the Plaintiff must identify the deficiency in the

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training program and establish a nexus between that deficiency and the harm suffered. See

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City of Canton, 489 U.S. at 391 (holding that “the identified deficiency in a city’s training

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program must be closely related to the ultimate injury”); Blankenhorn v. City of Orange,

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485 F.3d 463, 484 (9th Cir. 2007) (requiring that the municipality have a training policy

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that amounts to deliberate indifference to the constitutional rights of the persons with whom
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its employees are likely to come into contact). In addition, “[a] pattern of similar

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constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate

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deliberate indifference for purposes of failure to train.” Connick, 131 S.Ct. at 1360.

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In their motion in limine no. 14, the City Defendants moved to preclude Mr. Clark

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from offering any opinion testimony that the City’s training on the use of force was

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inadequate at the time of the incident. City Defs.’ Mots. in Limine at 13-14, Dkt. 127. The

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City Defendants predicated their motion on Mr. Clark’s deposition testimony, wherein he

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acknowledged that he was unaware of any deficiencies of a constitutional magnitude in the

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City’s training program or written policies. Id.; Clark Depo. at 48:22-24, Dkt. 118-8. The

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Court denied the motion, finding that the City Defendants had overlooked Mr. Clark’s

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opinion that the officers were not “trained adequately on POST standards, which require

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officer intervention ‘when excessive force occurs in their presence.’” Cotton, 2010 WL

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5154945, at *16-*17 (emphasis added).

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At the pretrial conference, the Court questioned the parties whether the basis for its

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ruling on the instant motion in limine had been obviated by its subsequent decision to grant

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summary judgment for Officers Tim Jones and Stephen Watson. In that ruling, the Court

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found that these officers arrived at the scene after Officers Adam Laird, Gary Whitmer and

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Justin Winkle’s use of force on the Decedent had effectively ceased, and therefore, Officers

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Jones and Watson lacked a reasonable opportunity to intervene. 8/31/11 Order at 29, Dkt.

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208. Since these officers were the only individual City Defendants to whom the lack of

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training on intervention would have been germane, the Court indicated that Mr. Clark’s

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anticipated opinion testimony regarding the efficacy of the City’s training on intervention

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was no longer relevant. Plaintiffs disagreed, and argued that the matter of failing to

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intervene also applied to Officers Laird, Whitmer and Winkle. However, these three

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officers were the individuals who were inflicting allegedly excessive force upon the

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Decedent. Thus, the legal issue with respect to these officers is whether they acted

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unreasonably in the use of force—not whether they failed to intervene. Therefore, the

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Court reconsiders its ruling on motion in limine no. 14, and GRANTS the City Defendants’
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motion in limine to preclude Mr. Clark from opining that the City’s training program is

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inadequate as it relates to the use of force or the failure to intervene.

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The question remains whether Mr. Clark may offer opinion testimony to support the

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Plaintiffs’ claim that the City fails to properly train its officers on when to seek medical

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care for arrestees who have been subjected to the use of force. At the pretrial conference,

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Plaintiffs argued, as an alternative matter, that the City’s training policy is inadequate

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because it allegedly instructs officers to seek medical attention for arrestees only where

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blood is visible. This issue was not raised in the City Defendants’ motion in limine. At the

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same time, however, it does not appear that this particular opinion was disclosed in Mr.

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Clark’s expert report. Undisclosed expert opinions generally are inadmissible at trial. See

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Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a witness as

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required by Rule 26(a) or (e), the party is not allowed to use that information or witness to

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supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially

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justified or is harmless.”). Since the issue of whether Mr. Clark has been disclosed as an

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expert regarding the City’s policies on seeking medical care for arrestees has not yet been

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briefed, the Court directs the parties to meet and confer on this issue and to submit

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memoranda in support of their respective positions.

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II.

CONCLUSION

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For the reasons stated above,

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IT IS HEREBY ORDERED THAT:

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1.

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The Court reconsiders its ruling on the County Defendants’ motion in limine

no. 1 and GRANTS IN PART and DENIES IN PART said motion, as follows:
a.

Mr. Clark may not offer any testimony related to the use of a taser by

any County correctional officer on the Decedent.
b.

Mr. Clark is precluded from offering any opinions as to the subjective

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knowledge of the County Defendants. In addition, Mr. Clark may not offer legal

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conclusions or speculative factual conclusions based on their purported subjective

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knowledge, including, without limitation, that: the County Defendants’ conduct was
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“intentional, reckless and dangerous; their actions “reflected a callous disregard for

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the life and safety of Mr. Cotton”; they disregarded the Decedent’s serious medical

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condition; or they “have no legitimate claim that they did not, or could not know of

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Mr. Cotton’s serious injuries when he was booked into the jail.”

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c.

Mr. Clark is not precluded from offering opinions that HCCF policies

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and professional standards of practice required the County Defendants to medically

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assess the Decedent and to provide him with immediate medical treatment under the

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circumstances presented.

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2.

The Court reconsiders its ruling on the City Defendants’ motion in limine no.

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14 and GRANTS said motion. Mr. Clark is precluded from offering opinions regarding the

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inadequacy of the City’s training program with respect to the use of force.

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3.

The City Defendants and Plaintiffs shall meet and confer forthwith regarding

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whether Mr. Clark timely disclosed any opinion regarding the adequacy of the City’s

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training program as it relates to seeking medical care for arrestees who have been subjected

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to the use of force. By no later than 5:00 p.m., September 9, 2011, the City Defendants

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and Plaintiffs shall either submit: (a) a stipulation regarding whether Mr. Clark may or may

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not offer such an opinion at trial; or (b) if no stipulation is reached, separate memoranda,

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not to exceed two (2) pages, on the issue of whether Mr. Clark’s opinion was properly

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disclosed and may be presented at trial.

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IT IS SO ORDERED.
Dated: September 7, 2011

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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