Hooper v. County of San Diego et al

Filing 426

ORDER denying 401 Plaintiff's Motion for Leave to designate additional experts. Signed by Judge John A. Houston on 11/05/2020. (jpp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

DEBORAH HOOPER,

Case No.: 7cv1647-JAH-KSC
Plaintiff,

12
13

v.

14

ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO
DESIGNATE ADDITIONAL
EXPERTS (Doc. No. 401).

COUNTY OF SAN DIEGO, et. al,

15

Defendant.

16
17

INTRODUCTION

18

Pending before the Court is Plaintiff Deborah Hooper’s (“Plaintiff”) Motion for

19

Leave to Designate Additional Experts. Doc. No. 401. The matter is fully briefed. See Doc.

20

Nos. 401, 410. Upon review of the parties’ submissions, and for the reasons set forth below,

21

the Court DENIES Plaintiff’s Motion for Leave to Designate Additional Experts.

22

BACKGROUND

23

Plaintiff moves the Court for leave to designate two additional experts: Babak

24

Samimi, MD, an orthopedic surgeon, and Jesse L. Wobrock, Ph.D, a forensic

25

biomechanical engineer and accident reconstructionist. Plaintiff states these experts would

26

testify on factual questions not previously addressed by expert testimony, but may resolve

27

core issues in the case. See Doc. No. 401 at 2.

28
1
7cv1647-JAH-KSC

1

Defendants oppose the motion on the basis that the “real purposes [of these expert

2

witnesses] are to get around the Court’s prior ruling excluding any claim based on the

3

alleged foot injury, and to otherwise attack defendant Terrell’s credibility.” See Doc. No.

4

402 at 4-5. Defendants also assert that the additional experts give rise to numerous

5

questions regarding the expert’s credibility, in additional to other issues.1 In support of its

6

position, Defendants cite cases from the Fifth and Tenth Circuits, where the respective

7

Courts upheld the trial court’s decision to exclude additional re-trial testimony.

8

Defendant further argues that allowing the proposed new expert opinions would

9

justify a Daubert-type motion to test their scientific basis. Defendant then argues if the new

10

proposed expert opinion is allowed, it would also justify reconsideration of the Court’s

11

previous restriction of testimony by Defendants’ drug-effects expert, who originally

12

testified about “assaultive behavior he professionally observed in methamphetamine users

13

such as plaintiff.”2 See Doc. No. 402 at 17.

14

DISCUSSION

15

According to Federal Rule of Civil Procedure 16(e), the pretrial order “shall control

16

the subsequent course of the action ... [and] shall be modified only to prevent manifest

17

injustice.” Fed. R. Civ. Pro. 16(e). However, this does not render a pretrial order a “legal

18

straitjacket binding the parties and court to an unwavering course at trial.” Manley v.

19

AmBase Corp., 337 F.3d 237, 249 (2d Cir. 2003) (citation omitted). Rather, the Court has

20

considerable discretion “to deviate from a pre-trial order,” to prevent manifest injustice. Id.

21
22
23
1

24
25
26
27
28

Including a question as to whether Plaintiff would oppose rebuttal defense experts.
Defendants’ argument that allowing Plaintiff’s additional experts should also justify reconsideration of
the Court’s previous restriction of testimony by Defendants’ drug-effects expert is flawed. The Court
limited the testimony of Dr. Clark “to matters within the report.” See Doc. No. 302. The Court made this
determination after extensive briefing, including supplemental briefing. The Court will not treat the
admissibility of expert testimony as a barter system. As such, the Court’s finding of inadmissibility of
Defendants’ witness will not be reversed simply because Defendants argue it is more equitable to allow
it in the event the Court grants Plaintiff’s motion. Adding an expert does not now render inadmissible
testimony admissible.
2

2
7cv1647-JAH-KSC

1

Additionally, because of its unique familiarity to the case, district courts have

2

discretion to admit or exclude new evidence or witnesses on retrial. Hoffman v.

3

Tonnemacher, 2006 WL 3457201 (E.D. Cal. November 30, 2006). As such, “if a party

4

makes a timely motion to produce new and material evidence which was not otherwise

5

readily accessible or known, the court should, within the exercise of discretion, consider

6

whether denial of the new evidence would create a manifest injustice.” Id. (citing Cleveland

7

v. Piper Aircraft Corp., 985 F.2d 1438, 1450 (10th Cir.1993). In evaluating whether a party

8

has shown “manifest injustice”, courts consider four factors: (1) the degree of prejudice or

9

surprise to the [nonmoving party] if the order is modified; (2) the ability of the [non-moving

10

party] to cure the prejudice; (3) any impact of modification on the orderly and efficient

11

conduct of the trial; and (4) any willfulness or bad faith by the party seeking modification.

12

Galdamez v. Potter, 415 F.3d 1015, 1020 (9th Cir. 2005). However, if the moving party

13

knew or should have known that certain witnesses or evidence were necessary at the time

14

of the first pre-trial, then the exclusion of those witnesses during the retrial will likely not

15

be manifestly unjust. See Martin's Herend Imports, 195 F.3d at 775 n. 15. Finally, the party

16

moving for a modification of a pre-trial order has the burden of showing that an amendment

17

is necessary to prevent manifest injustice. Galdamez, 415 F.3d at 1020.

18

Here, the Court finds Plaintiff has not demonstrated that a modification of the pre-

19

trial order is necessary to prevent a manifest injustice. Plaintiff seeks to have two experts

20

testify as to Plaintiff’s foot injury for the purpose of undermining Defendant Terrell’s

21

credibility by proving he, contrary to prior testimony, used a “heel-strike” as a take-down

22

maneuver. See Doc. No 410 at 4. Defendant Terrell’s credibility as it relates to an alleged

23

take-down maneuver has been a central issue at the outset of this matter, and any testimony

24

that would undermine Terrell’s credibility as it relates to that maneuver was known by

25

Plaintiff. Additionally, any testimony from Plaintiff’s accident reconstructionist who

26

would testify as to the physical impossibility of Hooper grabbing Deputy Terrell’s firearm

27

was or should similarly have been anticipated by Plaintiff at the outset of trial; especially

28

in light of the various testimony and demonstrations presented at previous trials on the
3
7cv1647-JAH-KSC

1

issue. As such, Plaintiff knew or should have known that any expert testimony regarding

2

Plaintiff’s foot injury for that purpose that may “resolve core issues in the case,” [Doc. No.

3

401 at 2], or the physical impossibility of Plaintiff’s position that would preclude her from

4

having the ability to reach for the weapon may have been necessary at the time of the first

5

trial. Accordingly, the Court declines to exercise its discretion to allow Defendant to amend

6

the pretrial order by disclosing additional expert witnesses, as excluding these witnesses

7

will not result in manifest injustice. See Martin's Herend Imports, 195 F.3d at 775 n. 15.

8

IT IS SO ORDERED.

9
10
11
12
13

DATED:

November 5, 2020
_________________________________
JOHN A. HOUSTON
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
7cv1647-JAH-KSC