Cisneros v. Vangilder et al

Filing 195

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING IN PART AND DENYING IN PART (Docket No. 147 in case 4:16-cv-00735-HSG and 144 in case 4:16-cv-01320-HSG) MOTION IN LIMINE.(ndrS, COURT STAFF) (Filed on 6/18/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANIEL CISNEROS,
Plaintiff,

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v.

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J. VANGILDER, et al.,

ORDER GRANTING IN PART AND
DENYING IN PART MOTION IN
LIMINE
Re: Dkt. No. 147

Defendants.

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United States District Court
Northern District of California

Case No. 16-cv-00735-HSG

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DANIEL MANRIQUEZ,

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Case No. 16-cv-01320-HSG

Plaintiff,
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v.

Re: Dkt. No. 144

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J. VANGILDER, et al.,

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Defendants.
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This suit arises out of a June 4, 2015 incident in Pelican Bay State Prison during which a

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chemical grenade detonated in a control booth in a housing unit and, according to Plaintiffs,

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caused them to suffer harm that Defendants failed to treat. See Dkt. No. 152 at 1.
Plaintiffs moved in limine to exclude video recordings, then designated as Exhibits 204

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and 206, which showed “discharges of chemical grenades in control booths, people walking

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around inside and outside of the control booths and footage of a vent.” See Dkt. No. 147 at 1.1

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Plaintiffs argued that the videos should be excluded as substantially more prejudicial than

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probative under Federal Rule of Evidence 403 because the circumstances in the videos did not

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accurately reflect what occurred during the 2015 incident. Id. at 2. Defendants opposed. See Dkt.

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For simplicity, the Court will refer to the filings in the lower-numbered case, Cisneros v.
Vangilder et al., Case No. 16-cv-735.

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No. 148.

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At the pretrial conference, Plaintiffs clarified that there were two groups of video

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recordings that they sought to exclude. Because the parties still could not sufficiently clarify the

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issues and factual background at the pretrial conference, the Court allowed them to file

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supplemental briefs.2
The first videos were filmed on June 5, 2018, and depict Defendants’ expert, Jeffrey Hicks,

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conducting a recreation of the incident by activating a T-16 oleoresin capsicum grenade in an

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unused, but otherwise identical, control booth at Pelican Bay. See Dkt. No. 185-4, Ex. E (“Hicks

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Report”) at 7. Defendants seemingly have renumbered the exhibits several times, but as best the
Court can tell by relying on the Bates numbering, there are two videos depicting Hicks’s

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United States District Court
Northern District of California

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recreation: Exhibit 137 (Bates-stamped AGO 008506) and Exhibit 138 (Bates-stamped AGO

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008577). In attempting to replicate the conditions that existed during the incident, Hicks did not

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review the deposition transcripts of the officers who were present or interview them. See Dkt. No.

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188-1, Ex. A (“Hicks Dep.”) at 91–92, 114. Instead, Hicks relied on instructions from the

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attorneys and correctional officers, none of whom were actually present during the 2015 incident.

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Id. at 114–15.

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The second videos were filmed on August 24, 2018, and depict Plaintiffs’ expert, Bud

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Offermann, attempting to redo Hicks’s recreation. As counsel for Defendants explained at the

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pretrial conference, “Bud Offermann . . . sought to replicate not only the incident, but do the exact

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same thing that our expert did.” See Transcript of Pretrial Conference, Dkt. No. 191 at 15.

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Counsel for Plaintiffs confirmed that “[w]e only wanted to do exactly what [Defendants’] expert

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did . . . [w]e just wanted to recreate what he said he did because we didn’t have that opportunity to

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be” present at the June 5 recreation. Id. at 16. Again, Defendants have renumbered these exhibits

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A significant source of the confusion was Defendants’ repeated, and inaccurate, claim in their
brief that the “videos [at issue] were recorded as part of a prison site inspection during testing and
measurements conducted by Plaintiffs’ expert witness, Mr. Offermann.” Dkt. No. 148 at 2; see
also id. at 4 (“In fact, all aspects of the testing and experiments that Plaintiffs seek to exclude were
dictated by Plaintiff’s counsel, Ms. Roberts, and Plaintiffs’ expert, Mr. Offermann—not
Defendants.”). As is now finally clear to the Court, this characterization applies only to the
August 2018 videos, but not to the June 2018 videos Defendants also seek to admit.
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several times and they now consist of: Exhibit 163 (Bates-stamped AGO 008792), Exhibit 164

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(Bates-stamped AGO 008725), Exhibit 165 (Bates-stamped AGO 008726), Exhibit 166 (Bates-

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stamped AGO 008727), and Exhibit 167 (Bates-stamped AGO 008728).3
First, the Court finds that the videos depicting Hicks’s June 5 experiment (Exhibits 137

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and 138) are admissible under Rules 402 and 403. Plaintiffs point out that the test may not

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accurately reflect what happened during the 2015 incident because Hicks did not rely on any

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firsthand observations and thus the ventilation, window configuration, air flow, and weather may

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have been different. See Dkt. No. 147 at 1. Plaintiffs are free to explore these differences, and the

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basis for Hicks’s opinions, on cross-examination. However, the probative value of the videos is

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not substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading

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United States District Court
Northern District of California

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the jury, or any other factor identified in Rule 403. The videos will allow the jury to see for

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themselves the detonation of an O.C. grenade and the impact it had on observers within the control

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booth, who were substantially closer to the site of the detonation than Plaintiffs were on the day of

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the incident. Because the Court finds that Plaintiffs’ objections go to weight, rather than

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admissibility, it DENIES the motion as to the June 5 videos.
Second, the Court finds that the probative value of the videos depicting Offermann’s

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August 24 recreation of the Hicks experiment (Exhibits 163, 164, 165, 166, and 167) is

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substantially outweighed by the needless presentation of cumulative evidence that would result.

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Plaintiffs apparently conducted this copycat experiment to confirm the results of Hicks’s test

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rather than to model what they believe happened during the 2015 incident. Thus, there is no

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additional probative value to allowing Defendants to play a second video depicting the same

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experiment. Doing so would be needlessly cumulative and waste the Court’s and the jury’s time.
That said, the exclusion of the Offermann videos is subject to reevaluation based on the

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testimony elicited during the trial. If, for example, Plaintiffs somehow open the door by attacking

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the results of Hicks’s experiment (rather than its factual underpinnings or the conclusions he

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Defendants’ supplemental filing indicates that what was at one point labeled as Exhibit 106
consisted of six videos—but it proceeds to list only the five videos identified here. See Dkt. No.
185 at 4 n.1. The Court was unable to identify a sixth video among the exhibits provided, but if it
exists, the reasoning in this order applies to it.
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drew), the videos may be admissible to rebut that implication. Therefore, the Court GRANTS the

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motion as to the August 24 videos, without prejudice to Defendants seeking to admit them if

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developments at trial establish a non-cumulative basis for doing so.

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IT IS SO ORDERED.
Dated: 6/18/2019
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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