Pajas et al v. County of Monterey et al

Filing 243

ORDER RE MOTIONS IN LIMINE (addressing 178 , 179 , 180 , 181 , 183 , 184 , 185 , 186 , 187 , 190 , 191 , 192 , 193 , 194 ). Signed by Judge Beth Labson Freeman on 1/14/2019. (blflc1S, COURT STAFF) (Filed on 1/14/2019)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 MARK VASQUEZ PAJAS, et al., Plaintiffs, 8 COUNTY OF MONTEREY, et al., [Re: ECF 178, 179, 180, 181, 183, 184, 185, 186, 187, 190, 191, 192, 193, 194] Defendants. 11 United States District Court Northern District of California ORDER RE MOTIONS IN LIMINE v. 9 10 Case No. 16-cv-00945-BLF 12 13 The Court held the Final Pretrial Conference in this case on January 7, 2019. The Court 14 heard oral argument on the parties’ motions in limine and issued its rulings on the record. This 15 order memorializes those rulings. For the reasons stated on the record, as summarized below, the 16 Court orders as follows: PLAINTIFFS’ MOTIONS IN LIMINE 17 18 (1) Plaintiffs’ Motion in Limine No. 1 to Exclude and/or Limit All Testimony or Evidence 19 Related to the January 19, 2015 Arrest of Mark Pajas, Sr. 20 Plaintiffs seek to exclude any testimony or evidence regarding the January 19, 2015 arrest 21 of and charges against the decedent, Mark Pajas, Sr. Mr. Pajas was arrested for an outstanding 22 warrant on a prior traffic infraction, reckless driving, transporting a controlled substance for sale, 23 and resisting arrest. Plaintiffs argue that information regarding those charges is irrelevant to this 24 case under Federal Rule of Evidence 401 and that under Federal Rule of Evidence 403 any 25 probative value would be outweighed by the danger of unfairly prejudicing or inflaming the jury. 26 Finally, Plaintiffs argue that the charges and related records should be excluded under Federal 27 Rule of Evidence 404 as impermissible character evidence. 28 In opposition, the County argues that the charges are relevant to decisions regarding Mr. 1 Pajas’s housing and treatment. For example, the County argues that housing decisions are 2 affected by pending charges because the potential length of incarceration must be considered, and 3 that gang affiliation has an impact on where an individual can be housed. 4 The Court agrees with the County that the charges brought against Mr. Pajas are relevant 5 to housing and treatment decisions, see Fed. R. Evid. 401, and that in general the probative value 6 of that information is not substantially outweighed by its prejudicial effect, see Fed. R. Evid. 403. 7 However, the Court finds that the prejudicial and inflammatory effect of informing the jury that 8 Mr. Pajas was charged with a drug “sales” crime, as opposed to a “drug-related crime,” would 9 substantially outweigh any probative value. Moreover, the Court finds that information regarding any gang affiliation of Mr. Pajas is not relevant to housing and treatment decisions made in this 11 United States District Court Northern District of California 10 case, and that the prejudicial and inflammatory effect of informing the jury of any gang affiliation 12 would substantially outweigh any probative value. Accordingly, the motion is GRANTED IN PART only as to reference to drug “sales” and 13 14 as to reference to any gang affiliation; the motion otherwise is DENIED. 15 (2) Plaintiffs’ Motion in Limine No. 2 to Exclude and/or Limit Evidence Regarding Any 16 Arrest or Criminal History of Xavier Pajas 17 Plaintiffs seek to exclude any evidence regarding the criminal history of the decedent’s 18 son, Plaintiff Xavier Pajas. The County does not oppose this motion. The CFMG Defendants do 19 oppose, indicating that they wish to ask Plaintiff Xavier Pajas if he has been convicted of a felony. 20 However, the CFMG Defendants did not seek information regarding Xavier Pajas’ criminal 21 history during discovery. The Court concludes that the type of fishing expedition suggested by the 22 CFMG Defendants would be prejudicial to Plaintiffs and that such prejudice would outweigh any 23 probative value regarding Xavier Pajas’s criminal history. See Fed. R. Evid. 301, 403. The motion is GRANTED. 24 25 (3) Plaintiffs’ Motion in Limine No. 3 to Exclude and/or Limit Improper Defense Experts 26 and/or Their Opinions 27 Plaintiffs seek to exclude or limit the opinions of Defendants’ experts Teri Ransbury, Dr. 28 Harlan Watkins, Dr. Neal Benowitz, Kimberly Pearson, and Dr. Daniel Wasserman. 2 1 (a) Teri Ransbury 2 Teri Ransbury is a compliance director employed by the County. She is charged with 3 ensuring that training on first aid, including CPR, is up to date. Ms. Ransbury reviewed the 4 documentation setting forth the CPR performed on Mr. Pajas and opined that the CPR was 5 appropriate and up to date. 6 Plaintiffs seek to exclude Ms. Ransbury’s opinion on the basis that she did not produce an expert report pursuant to Federal Rule of Civil Procedure 26. The County argues that because Ms. 8 Ransbury offers opinions related to her regular work for the County, she is not required to provide 9 an expert report, as a report must be provided only “if the witness is one retained or specially 10 employed to provide expert testimony in the case or one whose duties as the party’s employee 11 United States District Court Northern District of California 7 regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B). The Court agrees with 12 the County that because Ms. Ransbury is a County employee offering opinion as to her regular 13 work, she is not required to provide an expert report. 14 The motion is DENIED as to Ms. Ransbury. 15 (b) 16 Dr. Harlan Watkins is board certified in internal medicine with a specialization in Dr. Harlan Watkins 17 cardiology, and he has training on detoxification from opioids. He also has testified at trial 18 regarding life expectancy. He is offered by the CFMG Defendants to provide expert opinions 19 regarding the cause of Mr. Pajas’s death and Mr. Pajas’s life expectancy. Plaintiffs move to 20 exclude Dr. Watkins’ opinions, challenging his qualifications under Daubert v. Merrell Dow 21 Pharm., Inc., 509 U.S. 579 (1993), and arguing that his opinion that Mr. Pajas ingested 22 methamphetamine on the day of his death was not disclosed in his report. 23 1. Daubert Challenge 24 In Daubert, the Supreme Court held that Federal Rule of Evidence 702 requires the district 25 court to act as a gatekeeper to “ensure that any and all scientific testimony or evidence admitted is 26 not only relevant, but reliable.” Daubert, 509 U.S. at 589. As to relevance, the Court must 27 determine “whether expert testimony proffered in the case is sufficiently tied to the facts of the 28 case that it will aid the jury in resolving a factual dispute.” Id. at 591 (internal quotation marks 3 1 and citation omitted). As to reliability, the Supreme Court has articulated four non-exclusive 2 factors that may be considered by trial courts: (1) whether the theory or technique used by the 3 expert “can be (and has been) tested”; (2) “whether the theory or technique has been subjected to 4 peer review and publication”; (3) “the known or potential rate of error”; and (4) whether there is 5 “general acceptance” of the theory or technique in the “relevant scientific community.” Id. at 593- 6 94. The reliability inquiry is a flexible one, and “whether Daubert’s specific factors are, or are 7 not, reasonable measures of reliability in a particular case is a matter that the law grants the trial 8 judge broad latitude to determine.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153 9 (1999). When the expert is a physician, it may be more appropriate to focus on the physician’s experience rather than the Daubert factors. See Primiano v. Cook, 598 F.3d 558, 566-67 (9th Cir. 11 United States District Court Northern District of California 10 2010). 12 Based on Dr. Watkins’ training and experience, the Court concludes that he is qualified to 13 give opinions regarding cause of death and life expectancy. Plaintiffs’ challenges to Dr. Watkins’ 14 assessment of relevant risk factors and reliance on particular medical sources go to the weight of 15 his opinions rather than their admissibility, and are the proper subject of cross-examination. 2. 16 17 Late Opinion At his deposition, Dr. Watkins opined for the first time that Mr. Pajas had used 18 methamphetamine on the day of his death and that such use caused his death. Dr. Watkins’ 19 discussion of methamphetamine in his report was limited to the effects of methamphetamine 20 generally, including the effects of long-term, chronic use. He did not opine in his report that Mr. 21 Pajas used methamphetamine at the Jail or that Mr. Pajas’s use on the day of his death actually 22 caused his death. Accordingly, the latter opinions are subject to exclusion. See Plumley v. 23 Mockett, 836 F. Supp. 2d 1053, 1062 (C.D. Cal. 2010) (excluding expert’s supplementary 24 declaration which contained opinions that departed “substantially” from those offered in timely 25 expert report). 26 As to Dr. Watkins, the motion is GRANTED with respect to his opinions that Mr. Pajas 27 used methamphetamine on the day of his death and that such use caused his death. The motion 28 otherwise is DENIED. 4 1 (c) Dr. Neal Benowitz 2 Dr. Benowitz is a Professor of Medicine in Bioengineering and Therapeutic Sciences, and 3 he serves as the Chief of the Division of Clinical Pharmacology at the University of California at 4 San Francisco. He focuses on cardiovascular medicine, medical toxicology, and clinical 5 pharmacology. He has experience treating patients for substance abuse. Dr. Benowitz is offered 6 by the CFMG Defendants to provide expert opinions regarding cause of death. Plaintiffs move to 7 exclude his opinion that Mr. Pajas did not show signs of heroin withdrawal under the Clinical 8 Opiate Withdrawal Scale (“COWS”), asserting that Dr. Benowitz did not reference COWS in his 9 report but mentioned it for the first time during his deposition. The Court agrees with Plaintiff that Dr. Benowitz’s deposition testimony regarding COWS is outside the scope of his expert 11 United States District Court Northern District of California 10 report, and therefore that his opinion regarding COWS is subject to exclusion. See Plumley v. 12 Mockett, 836 F. Supp. 2d 1053, 1062 (C.D. Cal. 2010) (excluding expert’s supplementary 13 declaration which contained opinions that departed “substantially” from those offered in timely 14 expert report). It does not appear that Plaintiffs are asserting a Daubert challenge to Dr. Benowitz 15 and any such challenge would be denied. 16 The motion is GRANTED as to Dr. Benowitz’s late-disclosed opinion regarding COWS. 17 (d) 18 Kimberly Pearson is a registered nurse who has been working in the correctional health Kimberly Pearson 19 field for seven years. She is offered by the CFMG Defendants to provide expert opinions 20 regarding the conduct of a reasonable nurse under the circumstances presented by this case. 21 Plaintiffs seek to exclude Nurse Pearson’s opinions regarding Defendant Kaupp’s subjective 22 awareness of Mr. Pajas’s medical condition. The CFMG Defendants represent that Nurse Pearson 23 will not be providing any opinions regarding Defendant Kaupp’s subjective awareness. 24 25 The motion is GRANTED as to Nurse Pearson’s opinions regarding Defendant Kaupp’s subjective awareness. 26 (e) 27 Dr. Wasserman is a former County employee who examined and treated Mr. Pajas at 28 Dr. Daniel Wasserman Natividad Medical Center following Mr. Pajas’s arrest and prior to Mr. Pajas’s admission to the 5 1 Jail. Plaintiffs do not dispute that Dr. Wasserman may testify to opinions he reached while 2 treating Mr. Pajas. However, the County has indicated that it will offer Dr. Wasserman’s 3 deposition testimony that “Injection drug use can cause cellulitis.” Plaintiffs argue that nothing in 4 the record indicates that Dr. Wasserman formed that opinion while treating Mr. Pajas and that, in 5 fact, Dr. Wasserman testified that Mr. Pajas’s Natividad medical chart does not indicate any 6 connection between Mr. Pajas’s injection drug use and cellulitis. See Rifkin Decl. Exh. K 7 (Wasserman Dep) at 30:4-13, ECF 188. The County’s opposition brief addresses only Ms. Ransbury – it contains no argument in 8 9 opposition to Plaintiffs’ motion regarding Dr. Wasserman. See County’s Opp., ECF 203. “[A] treating physician is only exempt from Rule 26(a)(2)(B)’s written report requirement to the extent 11 United States District Court Northern District of California 10 that his opinions were formed during the course of treatment.” Goodman v. Staples The Office 12 Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011). It appears that Dr. Wasserman’s testimony 13 regarding injection drug use causing cellulitis is beyond the scope of his opinions formed during 14 treatment. Consequently, that testimony may not be presented at trial. The motion is GRANTED as to Dr. Wasserman’s opinions which go beyond the scope of 15 16 opinions that he formed while treating Mr. Pajas. 17 (4) Plaintiffs’ Motion in Limine No. 4 to Exclude Any Evidence or Argument for the 18 Purpose of Establishing that Defendants’ Withdrawal/Detoxification Policies, 19 Procedures, and Practices Governing the Treatment of Mark Pajas, Sr. were 20 Constitutionally Adequate, Appropriate, or Met the Standard of Care 21 Plaintiffs contend that a prior ruling in Hernandez v. County of Monterey, 110 F. Supp. 3d 22 929, 949-51 (N.D. Cal. 2015), conclusively establishes that Defendants’ withdrawal and 23 detoxification policies, procedures, and practices were not constitutionally adequate and did not 24 meet the standard of care at the time of Mr. Pajas’s death. Plaintiffs seek to exclude any evidence 25 or argument to the contrary under the doctrine of issue preclusion. In opposition, Defendants 26 argue that the cited Hernandez decision was a preliminary injunction order which neither decided 27 the adequacy of Defendants’ withdrawal and detoxification procedures nor constituted a final 28 judgment as required for issue preclusion. See Hydranautics v. FilmTech Corp., 204 F.3d 880, 6 1 885 (9th Cir. 2000) (discussing requirements for issue preclusion). Although the cited Hernandez decision does contain some language suggesting that the 2 3 district court made factual findings regarding the adequacy of Defendants’ policies and 4 procedures, the decision was an order granting a preliminary injunction based on the district 5 court’s determination that the plaintiffs had shown that they were “likely to succeed on the 6 merits.” Hernandez, 110 F. Supp. 3d at 934. The district court’s conclusion regarding likelihood 7 of success on the merits did not necessarily decide the adequacy of Defendants’ policies and 8 procedures. Accordingly, the motion is DENIED. The Hernandez preliminary injunction order did not 9 conclusively establish any facts regarding the adequacy of Defendants’ policies and procedures. 11 United States District Court Northern District of California 10 (5) Plaintiffs’ Motion in Limine No. 5 to Preclude Defendant Kaupp from Testifying that 12 She Checked on or Observed Mr. Pajas in the Sobering Cell on January 20, 2015 13 Numerous Unspecified Times 14 Plaintiffs seek to preclude Defendant Kaupp from testifying that she checked on or 15 observed Mr. Pajas in the sobering cell on January 20, 2015 on occasions other than the two 16 instances she recorded in the medical records, which are observable via Jail surveillance video. 17 Defendant Kaupp claims that surveillance video shows that she checked on Mr. Pajas more than 18 twice, and that the video did not capture other occasions on which she checked Mr. Pajas. With respect to Defendant Kaupp’s claim that the surveillance video shows her checking 19 20 on Mr. Pajas more than twice, Defendant Kaupp’s counsel agreed to provide Plaintiffs with pin 21 citations to the relevant video timestamps on or before January 14, 2019. With respect to 22 Defendant Kaupp’s claim that the surveillance video simply did not capture other occasions on 23 which she checked Mr. Pajas, the motion is DENIED. Defendant Kaupp contends that the video 24 surveillance cameras did not capture all areas in which she could have observed Mr. Pajas, and the 25 Court is not in a position to determine the truth of that contention. 26 // 27 // 28 // 7 CFMG DEFENDANTS’ MOTIONS IN LIMINE 1 2 (1) CFMG Defendants’ Motion in Limine No. 1 to Exclude Evidence of Alleged Failure 3 to Promulgate Appropriate Policies and Procedures for Inmates Undergoing Opiate 4 Detoxification 5 The CFMG Defendants seek to exclude the opinion of Plaintiffs’ expert, Dr. Marc F. Stern, 6 that the Jail’s opiate withdrawal protocol was deficient. The basis for the motion is Dr. Stern’s 7 alleged failure to establish that the protocol was the cause of Mr. Pajas’s death. According to the 8 CFMG Defendants, “[e]vidence of alleged deficiencies in the opiate detox protocol without 9 evidence of causation, would certainly create a substantial danger of undue prejudice.” CFMG Defs.’s MIL 1 at 2-3, ECF 190. In opposition, Plaintiffs point out that the CFMG Defendants are 11 United States District Court Northern District of California 10 conflating two separate elements of Plaintiffs’ constitutional claims: (a) whether the opiate 12 detoxification policy was inadequate and (b) whether there is a direct causal link between the 13 detoxification policy and Mr. Pajas’s death. See Castro v. Cty. of Los Angeles, 833 F.3d 1060, 14 1075-76 (9th Cir. 2016). 15 The motion is DENIED. Dr. Stern’s asserted failure to opine as to one element of 16 Plaintiffs’ claims, causation, does not preclude him from opining as to another element of 17 Plaintiffs’ claims, inadequacy of the detoxification policy. Other evidence may prove causation 18 and the jury will evaluate all evidence to determine this required element. Otherwise, the CFMG 19 Defendants’ motion would amount to an untimely motion for summary judgment. 20 (2) CFMG Defendants’ Motion in Limine No. 2 to Preclude Admission of the Report of 21 Michael Puisis, D.O. and to Preclude the Opinion in Hernandez v. County of Monterey 22 The CFMG Defendants seek to exclude the Hernandez preliminary injunction order 23 discussed above, as well as the report of Michael Puisis, D.O., a neutral expert retained by the 24 Hernandez parties. 25 As discussed above, the Hernandez order did not conclusively establish any facts regarding 26 the adequacy of Defendants’ policies and procedures. The Court therefore concludes that it is 27 inadmissible to prove liability in this case. At the hearing, Plaintiffs requested leave to file a 28 supplemental brief addressing the admissibility of the Hernandez decision to show Defendants’ 8 1 willfulness for purposes of establishing Plaintiffs’ entitlement to punitive damages. The Court 2 granted Plaintiffs leave to file a two-page supplemental brief on or before January 11, 2019. 3 Plaintiffs timely filed a supplemental brief stating that “[g]iven this Court’s ruling during the 4 pretrial conference in the instant case that the Hernandez Court did not make any findings of fact 5 in its preliminary injunction order, Plaintiffs do not offer any additional argument as to the 6 admissibility of the Hernandez order as evidence in this case.” Pls.’ Suppl. Br. at 2, ECF 241. 7 The motion is GRANTED as to the Hernandez preliminary injunction order. 8 With respect to the Puisis report, the CFMG Defendants argue that Dr. Puisis’ findings and 9 recommendations regarding jail policies are irrelevant “because none of the deficiencies noted by Dr. Puisis with respect to detoxification and withdrawal policies played any role in the death of 11 United States District Court Northern District of California 10 Mr. Pajas.” CFMG Defs.’ MIL 2 at 3, ECF 191. “Specifically,” the CFMG Defendants argue, 12 “plaintiffs’ expert witness, Mark Stern, M.D.’s opinions regarding the adequacy of the defendants’ 13 policies and procedures with regard to detoxification procedures failed to include an opinion that 14 any of the deficiencies noted by Dr. Puisis was a proximate cause of Mr. Pajas’s death.” Id. As 15 discussed above, whether Defendants policies and procedures were inadequate and whether those 16 policies and procedures caused Mr. Pajas’s death are two separate issues. Plaintiffs’ entitlement to 17 present evidence on one issue, the adequacy of Defendants’ policies and procedures, does not 18 depend on the robustness of Plaintiffs’ evidence regarding a separate issue, causation. Moreover, 19 the Puisis report is relevant to the issue of Defendants’ notice regarding the alleged inadequacies 20 of their policies. The Puisis report constitutes a party admission, as Dr. Puisis was retained jointly 21 by Defendants and the Hernandez plaintiffs. See Fed. R. Evid. 801(d)(2)(C), (D). The motion is DENIED as to the Puisis report. 22 23 (3) CFMG Defendants’ Motion in Limine No. 3 to Exclude Opinion Testimony from 24 Plaintiffs’ Expert that Any of the Actions of the Defendants or Defendant’s 25 Employees was “Reckless” or in “Conscious Disregard” or “Deliberately Indifferent” 26 The CFMG Defendants move to preclude any of Plaintiffs’ experts from opining on 27 ultimate legal conclusions that Defendants’ conduct was “reckless,” or in “conscious disregard,” 28 or “deliberately indifferent.” Plaintiffs do not oppose this motion, and they represent that they will 9 1 not present any such expert opinion. The motion is GRANTED. 2 3 (4) CFMG Defendants’ Motion in Limine No. 4 to Preclude Evidence of Credibility The CFMG Defendants seek to preclude Plaintiffs’ experts from testifying as to whether 4 particular witnesses are credible. Plaintiffs agree that an expert may not testify that a witness lied. 6 However, Plaintiffs cite cases holding that an expert may testify regarding facts which might 7 affect the believability of a witness’s story. See, e.g., Goodman v. Harris Cnty., 571 F.3d 388, 8 399-400 (5th Cir. 2009). The motion is not directed to any specific expert evidence, and it is 9 impossible for the Court to determine in a vacuum whether future evidence offered by Plaintiffs’ 10 experts will be inadmissible as pure credibility opinion or admissible as opinion regarding facts 11 United States District Court Northern District of California 5 which make another witness’s testimony more or less believable. The blanket motion is DENIED, without prejudice to trial objections to particular expert 12 13 testimony or opinions. 14 (5) CFMG Defendants’ Motion in Limine No. 5 to Bifurcate Punitive Damages The CFMG Defendants move to bifurcate the issue of punitive damages, arguing that 15 16 evidence of their income, assets, and net worth could influence the jury’s determination of liability 17 and compensatory damages. Plaintiffs do not oppose the motion. The motion is GRANTED as to the issue of the amount of punitive damages only. 18 19 Liability for punitive damages will be tried in the first phase. COUNTY’S MOTIONS IN LIMINE 20 21 (1) County’s Motion in Limine No. 1 to Exclude Testimony of Improperly Disclosed 22 Witnesses 23 The County moves to exclude the testimony of a number of individuals which the County 24 asserts were not properly disclosed as witnesses. Those individuals include a Jail inmate, Mr. 25 Libby, who provided a written statement, and twelve individuals who allegedly have information 26 regarding Mr. Pajas’s relationships with his family members. Although Plaintiffs filed a written 27 opposition to the motion, at the hearing Plaintiffs’ counsel indicated that the motion is unopposed 28 and that Plaintiffs will not offer Mr. Libby or the other twelve individuals at trial. 10 The motion is GRANTED. 1 2 (2) County’s Motion in Limine No. 2 to Exclude Testimony and Expert Report of Dr. 3 Larissa Mooney 4 The County moves to exclude the testimony and report of Plaintiffs’ addiction medicine expert, Dr. Larissa Mooney. In her expert report, Dr. Mooney offered several opinions explaining 6 heroin addiction and its effects, heroin withdrawal, relapse rates, and the abilities of addicts to 7 function and maintain relationships. She also opined in her rebuttal report that Dr. Watkins, the 8 CFMG Defendants’ expert, made erroneous calculations regarding Mr. Pajas’s life expectancy. 9 The County does not challenge Dr. Mooney’s qualifications or experience, and it does not 10 challenge the bulk of her opinions. Instead, the County seeks to exclude the entirety of her 11 United States District Court Northern District of California 5 testimony and report based on the County’s contention that Dr. Mooney’s opinions regarding the 12 abilities of heroin addicts to maintain relationships is irrelevant and prejudicial because Dr. 13 Mooney did not speak to members of Mr. Pajas’s family. Even if the Court were to determine that Dr. Mooney is unqualified to give an opinion 14 15 regarding addicts’ familial relationships, that determination would not warrant exclusion of Dr. 16 Mooney’s opinions on other subjects. Moreover, the Court concludes that Dr. Mooney is qualified 17 to opine regarding the abilities of addicts to maintain relationships, and that her opinion “is 18 sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” 19 Daubert, 509 U.S. at 591 (internal quotation marks and citation omitted). Claim 4 is for violation 20 of substantive due process, specifically, deprivation of familial relationships. Jurors are unlikely 21 to have experience or knowledge with the types of family relationships a drug addict may have. The motion is DENIED. 22 23 (3) County’s Motion in Limine No. 3 to Exclude Testimony of Improperly Disclosed 24 Expert Witness John Powell and Reliance on Evidence Altered by Mr. Powell 25 The County moves to exclude the testimony of John Powell, who was disclosed by 26 Plaintiffs as a rebuttal witness, as well as surveillance video recordings modified or altered by Mr. 27 Powell. Mr. Powell is an expert in audio forensics, digital evidence, and investigative technology. 28 He enhanced the Jail’s video surveillance recordings, and Plaintiffs wish to play portions of that 11 1 enhanced video to the jury. The County argues that Mr. Powell’s testimony and modified videos 2 are not properly presented in rebuttal. The Court finds that Mr. Powell is not properly a rebuttal expert. “Fed. R. Civ. P. 3 4 26(a)(2)(C)(ii) permits the admission of rebuttal expert testimony that is intended solely to 5 contradict or rebut evidence on the same subject matter identified by an initial expert witness.” 6 R & O Const. Co. v. Rox Pro Int’l Grp., Ltd., No. 2:09-CV-01749-LRH-LR, 2011 WL 2923703, at 7 *2 (D. Nev. July 18, 2011) (internal quotation marks and citation omitted). “Rebuttal expert 8 reports necessitate a showing of facts supporting the opposite conclusion of those at which the 9 opposing party’s experts arrived in their responsive reports.” Id. (internal quotation marks and citation omitted). “Rebuttal expert reports are proper if they contradict or rebut the subject matter 11 United States District Court Northern District of California 10 of the affirmative expert report.” Id. Neither Mr. Powell nor Plaintiffs identify which of 12 Defendants’ expert reports Mr. Powell’s testimony is intended to rebut. Consequently, although 13 the Court is satisfied that Mr. Powell is qualified in audio forensics and digital evidence, his 14 testimony and videos are inadmissible as rebuttal. The motion is GRANTED. 15 16 (4) County’s Motion in Limine No. 4 to Exclude from Evidence Plaintiffs’ Proposed 17 Exhibit 234 18 The County seeks to exclude from evidence Plaintiffs’ proposed Exhibit 234, which is an 19 audit of Jail operations conducted by the Monterey County Sheriff’s Office (“MCSO”) 20 Corrections Programs Manager and Corrections Ombudsman at the direction of the MCSO Chief 21 Deputy. The County asserts that the document was inadvertently produced and that it is protected 22 by attorney-client privilege and attorney work product privilege. In opposition, Plaintiffs argue 23 that the County has waived any applicable privileges. The County did not advise Plaintiffs of its 24 view regarding privilege until November 2018. 25 The Court finds that the County has waived any applicable privileges. Plaintiffs submitted 26 Exhibit 234 along with an administrative motion in this case in June 2018, requesting sealing of 27 Exhibit 234 and those portions of Plaintiffs’ motion for partial summary judgment which referred 28 to Exhibit 234. See Pls.’ Admin. Motion, ECF 153. Plaintiffs indicated that the County had not 12 1 designated Exhibit 234 as confidential pursuant to the protective order entered in this case, but the 2 County had produced Exhibit 234 to Plaintiffs with a prior stamp of “Confidential” on it. See id. 3 However, the County did not attempt to claw back the document at that time, and it did not even 4 file a declaration supporting its sealing. As a result, the Court denied Plaintiffs’ administrative 5 motion and directed that the document be filed publicly. See Order Denying Admin. Motion, ECF 6 160. The document was filed publicly in July 2018. See ECF 161. Under these circumstances, 7 the Court cannot find that the County “promptly took reasonable steps to rectify the error” of the 8 claimed inadvertent disclosure. See Fed. R. Evid. 502(b). 9 The motion is DENIED. 10 United States District Court Northern District of California 11 IT IS SO ORDERED. 12 13 14 15 Dated: January 14, 2019 ______________________________________ BETH LABSON FREEMAN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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