NeSmith v. County of San Diego et al

Filing 219

ORDER On Motions In Liming And Motion To Amend Pretrial Order (ECF Nos. 177 , 178 , 179 , 180 , 181 , 182 , 183 , 184 , 185 , 186 , 187 , 188 , 189 , 190 , 191 , 192 , 193 . Signed by Judge Janis L. Sammartino on 1/28/2022. (ddf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHASSIDY NESMITH, et al.,

Case No.: 15-CV-629 JLS (AGS)
Plaintiffs,

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v.

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ORDER ON MOTIONS IN LIMINE
AND MOTION TO AMEND
PRETRIAL ORDER

COUNTY OF SAN DIEGO, et al.,

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Defendants.
(ECF Nos. 177, 178, 179, 180, 181, 182,
183, 184, 185, 186, 187, 188, 189, 190,
191, 192, 193)

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Presently before the Court are Plaintiffs’ and Defendants’ Motions in Limine (ECF

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Nos. 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192). Also

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before the Court is Defendants’ Motion to Amend Pretrial Order (ECF No. 193). On

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December 16, 2021, the Court held a hearing on these motions and issued a tentative ruling.

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(ECF No. 216.) Having considered the Parties’ arguments in their moving papers, those

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made at the hearing, and the applicable law, the Court GRANTS IN PART and DENIES

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IN PART the Parties’ motions as discussed below. However, the Court emphasizes that,

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given the nature of motions in limine, the Court’s rulings are necessarily tentative and may

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be revisited during trial. See United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir.

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1999) (“The district court may change its ruling at trial because testimony may bring facts

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to the district court’s attention that it did not anticipate at the time of its initial ruling.”).
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15-cv-00629-JLS-AGS

PLAINTIFFS’ MOTIONS IN LIMINE

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Motion in Limine No. 1 to Exclude Statements Regarding Chassidy NeSmith’s

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1.

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Relationship Status and Newborn Baby

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Plaintiffs’ first motion in limine seeks to exclude evidence of Ms. NeSmith’s post-

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incident relationship status and newborn baby and questions that would open the door to

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these topics, such as:

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1.
Have you been able to move on since [Decedent]’s
suicide?
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Have you been able to recover since [Decedent]’s suicide?
3.
Have you been able to find happiness since [Decedent]’s
suicide?
4.
Are you currently involved in a romantic/fulfilling
relationship?
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Have you dated since [Decedent]’s suicide?
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How long after [Decedent]’s death did you wait to date?
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Does [S.K.S.N.] have any siblings?
8.
How many children do you have?

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(ECF No. 177 at 3–5.) Plaintiffs argue that in California, “evidence of a surviving spouse’s

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remarriage or dating life is inadmissible” for mitigation of damages in wrongful death

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cases. (Id. at 3 (first citing Cherrigan v. City & County of San Francisco, 262 Cal. App.

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2d 646, 650 (1968); then citing Benwell v. Dean, 249 Cal. App. 2d 345 (1967); then citing

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Wood v. Alves Serv. Trans., Inc., 191 Cal. App. 2d 723, 727–29 (1961); and then citing

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Gallo v. S. Pac. Co., 43 Cal. App. 2d 339, 346–47 (1941)). Plaintiffs further argue that

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even if this evidence is relevant in other respects, the probative value is substantially

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outweighed by a danger of unfair prejudice pursuant to Federal Rule of Evidence (“FRE”)

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403. (Id.)

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Defendants oppose Plaintiffs’ motion and argue that because Ms. NeSmith is seeking

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“extraordinary emotional distress damages,” evidence of her current mental state is

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relevant to impeach her claims that she suffered from severe depressive disorder, PTSD,

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and anxiety after Decedent’s suicide and was “mistrustful of others,” “isolating herself,”

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and experiencing “severe difficulty coping with everyday life.” (ECF No. 200 at 3.)

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Although not addressed by either party, district courts in the Ninth Circuit—

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including this Court—have held that emotional distress damages are not recoverable from

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wrongful death claims under California law and claims under § 1983. Chaudhry v. City of

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Los Angeles, Case No. CV 09-01592-RGK (RZx), 2014 WL 12558777, at *3 (Dec. 18,

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2014) (“California law does not allow a plaintiff bringing a claim for wrongful death to

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recover damages for ‘mental and emotional distress, including grief and sorrow.’

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Therefore, unless California law is somehow inconsistent with [§] 1983, Plaintiffs may not

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recover such damages under their Fourteenth Amendment claim.” (citation omitted)

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(quoting Krouse v. Graham, 19 Cal. 3d 59, 72 (1977))); Lopez v. Aitken, No. 07–CV–2028

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JLS (WMC), 2011 WL 672798, *7 (Feb. 18, 2011) (“[D]amages for Plaintiff’s and Cross-

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claimant’s emotional distress are not recoverable under § 1983.” (citing T.D.W. v. Riverside

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County, No. EDCV 08-232 CAS (JWJx), 2009 WL 2252072, at *7 (C.D. Cal. July 27,

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2009))). At the Hearing, the Court provided Plaintiffs with an opportunity to explain what

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claim or claims in the operative Complaint (ECF No. 111) entitled Ms. NeSmith to seek

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emotional distress damages, and Plaintiffs responded only that Ms. NeSmith’s wrongful

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death and § 1983 claims of cruel and unusual punishment under the Fourteenth Amendment

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permit recovery for emotional distress damages without further explanation or argument.

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Because Plaintiffs have presented no authority or argument that emotional distress claims

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are available in this action and that precluding such damages would be inconsistent with

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their § 1983 claims, the Court finds that Plaintiffs are not permitted to seek damages for

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emotional distress. Cf. Cotton v. City of Eureka, No. C 08–04386 SBA, 2010 WL 5154945,

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at *15 (N.D. Cal. 2010) (allowing the plaintiffs to seek emotional distress damages under

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§ 1983 pursuant to a Fourteenth Amendment due process claim for state interference of

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familial relationship).

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Accordingly, Plaintiffs’ first motion in limine is GRANTED. Because Plaintiffs

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will not be permitted to put on evidence of Ms. NeSmith’s pain, suffering, or emotional
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distress after Decedent’s suicide for purposes of establishing emotional distress damages,

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evidence of Ms. NeSmith’s current mental state is not needed for impeachment purposes.

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Additionally, the Court finds that evidence of Ms. NeSmith’s current mental state is not

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relevant to any other aspect of the case, including the determination of noneconomic

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damages. See Lopez, 2011 WL 672798, *7 (“Plaintiff’s and Cross-claimant’s . . . emotional

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distress has no bearing on their claims for loss of society and companionship and loss of

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consortium; these are separate and distinct categories of damages.” (citing Cal. Civ. Code

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§ 1431.2(b)(2))); see also Woods v. August, Case No. 3:15-cv-05666-WHO, 2019 WL

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8105898, at *9 (N.D. Cal. Mar. 14, 2019) (“Neither plaintiff nor her witnesses may testify

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about grief, sorrow, or emotional distress. Instead, their testimony should be directed at

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loss of love, companionship, comfort, care, assistance, protection, affection, society, and

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moral support.”).

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2.

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and Post-Incident Arrest

Motion in Limine No. 2 to Exclude Evidence of Chassidy NeSmith’s Drug Use

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Plaintiffs’ second motion in limine seeks to exclude evidence of Ms. NeSmith’s

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medicinal marijuana use and post-incident arrest. (ECF No. 178.) Plaintiffs argue that

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these topics are inadmissible because they are irrelevant, inflammatory, and highly

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prejudicial. (Id. at 2.) Defendants oppose Plaintiffs’ motion only as to the request to

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exclude evidence of Ms. NeSmith’s drug use, arguing that evidence of her medicinal

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marijuana consumption before and after Decedent’s death is relevant to impeach her

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emotional distress claims and to the determination of noneconomic damages, as it is

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probative of her and Decedent’s relationship. (ECF No. 201 at 3.)

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As stated above, Plaintiffs have not established that they are permitted to seek

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emotional distress damages, and therefore, Ms. NeSmith’s use of medicinal marijuana has

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no impeachment value with respect to her claims of emotional distress. Plaintiffs’ motion

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is therefore GRANTED in this respect. Additionally, because Defendants do not oppose

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Plaintiffs’ request to exclude evidence of Ms. NeSmith’s post-incident arrest, Plaintiffs’

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motion is GRANTED in this respect.
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However, evidence concerning Ms. NeSmith’s use of medicinal marijuana with

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Decedent that is probative of their relationship and the time they spent together is

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admissible for purposes of determining noneconomic damages.1 Recoverable damages

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under a wrongful death claim consist of both economic and noneconomic damages.

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Mendoza v. City of West Covina, 206 Cal. App. 4th 702, 720 (2012) (“Damages for

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wrongful death are measured by the financial benefits the heirs were receiving at the time

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of death, those reasonably to be expected in the future, and the monetary equivalent of loss

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of comfort, society, and protection.” (citing Corder v. Corder, 41 Cal. 4th 644, 661

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(2007))). As described in Model Jury Instruction 3921 by the Judicial Counsel of

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California Advisory Committee on Civil Jury Instructions (“CACI 3921”), Plaintiffs may

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recover noneconomic damages for the loss of Decedent’s “love companionship, comfort,

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care, assistance, protection, affection, society, [and] moral support.” Therefore, to the

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extent evidence of Ms. NeSmith’s medicinal marijuana use with Decedent is probative of

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their relationship and Ms. NeSmith’s loss of Decedent’s companionship, the evidence is

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admissible. Accordingly, Plaintiffs’ motion is DENIED in this respect, and Plaintiffs’

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concerns of potential prejudice can be addressed by a limiting jury instruction.

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3.

Motion in Limine No. 3 to Exclude Evidence of Collateral Source Payments

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Plaintiffs’ third motion in limine seeks to exclude evidence of the $250,000 military

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“death benefit pension” (“military death benefit”), “VA pension,” and social security

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benefits that Ms. NeSmith received or continues to receive as a result of Decedent’s death.

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(ECF No. 179 at 2.) Plaintiffs argue that evidence of all three benefits is inadmissible

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under the collateral source rule. (Id. at 3.)

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In their opposition, Defendants acknowledge that the social security benefits are a

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collateral source, reasoning that Decedent actively contributed to social security while he

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At her deposition, Ms. NeSmith testified that her and Decedent smoked “a blunt”
“before [they] went anywhere” and that smoking medicinal marijuana was “kind of a
hobby” they shared together. (ECF No. 184 at 10, 21–23.)
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was alive. (ECF No. 202 at 6.) Defendants, however, contest that the military death benefit

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and VA pension are collateral sources because Decedent “did not ‘actually or

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constructively pay for them.’” (Id. (quoting Helfend v. S. Cal. Rapid Transit Dist., 2 Cal.

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3d 1, 13–14 (1970)). Defendants further argue that, even if the military death benefit is a

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collateral source, evidence of the benefit is admissible because it is relevant to their theory

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of the case that Decedent had financial motivation to hide his intent to commit suicide. 2

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(Id. at 3–5.)

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“Under the collateral source rule, ‘benefits received by the plaintiff from a source

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collateral to the defendant may not be used to reduce that defendant’s liability for

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damages.’” McLean v. Runyon, 222 F.3d 1150, 1155–56 (9th Cir. 2000) (quoting 1 Dan

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B. Dobbs, Law of Remedies § 3.8(1) at 372–73 (2d ed. 1993)). In California, “the collateral

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source rule operates to prevent a defendant from reducing a plaintiff’s damages with

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evidence that the plaintiff received compensation from a source independent from the

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defendant.” Mize-Kurzman v. Marin Cmty. College Dist., 202 Cal. App. 4th 832, 872

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(2012).

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Defendants here, citing to Helfend v. Southern California Rapid Transit District,

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contend that the collateral source rule in California only applies when the injured party

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made “actual or constructive payments” the independent collateral source. (ECF No. 202

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at 6.) The Court does not share Defendants’ reading of Helfend, for in Helfend, the

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California Supreme Court simply “reaffirm[ed] its adherence to the collateral source rule

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in tort cases in which the plaintiff has been compensated by an independent collateral

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source . . . . for which he had actively or constructively . . . paid . . . .” 2 Cal. 3d 1, 13–14

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At the time of his death, Decedent was on appellate leave from the Marines while
his court-martial case was on appeal. Defendants posit that Decedent committed suicide
before the completion of the appeal to ensure that Ms. NeSmith and their then unborn child
would receive the $250,000 military death benefit. (ECF No. 202 at 3.) Had the appellate
process resulted with Decedent being dishonorably discharged from the Marines, he would
not have been entitled to these benefits. (Id.)
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(1970). The Helfend Court did not limit the collateral source rule in this respect, and

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Defendants cite to no authority supporting their narrow reading of Helfend. Contrary to

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Defendants’ position, subsequent decisions by California appellate courts demonstrate that

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“courts do not consider the collateral source rule limited to those situations expressly set

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forth in Helfend.” San Joaquin Valley Ins. Authority v. Gallagher Benefit Servs., Inc., 437

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F. Supp. 3d 761, 770 (E.D. Cal. 2020). For example, the appellate court in Arambula v.

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Wells disagreed that “Helfend limited the collateral source rule to instances where ‘plaintiff

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incurred an expense, obligation, or liability in obtaining the services for which they seek

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compensation” and found that gratuitous payments could come within the scope of the

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collateral source rule. 72 Cal. App. 4th 1006, 1009–14 (1999) (“Helfend on its face says

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nothing about gratuitous . . . payments.”); see also Smock v. California, 138 Cal. App. 4th

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883, 887 (2006) (“The cases that discuss application the collateral source rule do not find

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critical distinction between situations where the victim receives a gratuitous payment or

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benefit and those where the benefit or payment arises from some obligation. Under

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California law, it makes no difference.”); 6 Witkin Summary of California Law, § 1808

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(11th ed. 2021) (“There are numerous . . . reasons for holding that Helfend is not authority

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for the position that the collateral source rule does not apply to gratuitous payments.”).

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Considering the line of California appellate cases interpreting Helfend broadly, the Court

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finds unpersuasive Defendants’ reliance on Helfend for the proposition that the collateral

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source rule does not apply the military death benefit or VA pension.3

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Accordingly, Plaintiffs’ request to deem the military death benefit, VA pension, and

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social security payments as collateral sources and inadmissible for mitigation of damages

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is GRANTED. However, Plaintiffs’ request to exclude any “reference, evidence, or

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Moreover, even if the Court found Defendants’ interpretation of Helfend persuasive,
Defendants have provided no support for their contention that Decedent did not “actively
or constructively” pay for the military death benefit or VA pension, even when provided
an opportunity to do so at the hearing.
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testimony” to the military death benefit is DENIED, for evidence of the military death

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benefit is relevant to Defendants’ theory of the case that Decedent had financial motivation

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to hide his intent to commit suicide. Evidence of the military death benefit is therefore

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admissible for the limited purpose of explaining that theory and will be subject to an

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appropriate limiting instruction.

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4.

Motion in Limine No. 4 to Exclude Various Topics of Improper Questions

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Plaintiffs’ fourth motion in limine seeks to exclude evidence of a variety of topics

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that Plaintiffs contend are irrelevant and “only being pursued to ‘dirty up’ Plaintiffs.” (ECF

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No. 180 at 3.) The Court GRANTS in part and DENIES in part Plaintiffs’ motion as

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follows:

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Topic 1: Ms. NeSmith’s comments or jokes about political posts, such as children

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being deported after Trump was elected. Because Defendants do not intend to raise

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evidence pertaining to this topic (ECF No. 203 at 2), the Court GRANTS Plaintiffs’ request

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to exclude evidence of Topic 1.

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Topic 2: Ms. NeSmith’s life as an army brat and her need to live in various places

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with various people. Because Defendants do not intend to raise evidence pertaining to this

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topic (id.), the Court GRANTS Plaintiffs’ request to exclude evidence of this Topic 2.

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Topic 3: Ms. NeSmith’s “hanging out” with Decedent at a bar while he was

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underage. The Court GRANTS in part and DENIES in part Plaintiffs’ request to

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exclude evidence of Topic 3. The Court finds that evidence of this topic is probative of

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Ms. NeSmith and Decedent’s relationship and therefore relevant to the determination of

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noneconomic damages. Additionally, evidence of Decedent’s alcohol consumption and

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drinking habits, if not too remote in time, is likewise relevant to the determination of

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noneconomic damages, as well as economic damages. Economic damages in this wrongful

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death action are based on “the financial support, if any, [Decedent] would have contributed

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to the family” during his life.” CACI 3921; see also Allen v. Toledo, 109 Cal. App. 3d 415,

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424 (1980) (“The life expectancy of the deceased is a question of fact for the jury to decide

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. . . considering all the relevant factors including the deceased’s health, lifestyle and
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occupation.”). Accordingly, evidence of Topic 3 is admissible for the limited purpose of

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assessing damages and will be subject to an appropriate limiting instruction. However, the

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Court finds that evidence of Decedent’s underage alcohol consumption is inadmissible, for

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the probative value is substantially outweighed by a danger of unfair prejudice. Fed. R.

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Evid. 403.

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Topic 4: Ms. NeSmith’s unauthorized overnight stays with Decedent on base. The

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Court GRANTS in part and DENIES in part Plaintiffs’ request to exclude evidence of

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Topic 4. The Court agrees with Defendants that the amount of time that Decedent and Ms.

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NeSmith spent together is admissible for the limited purpose of determining noneconomic

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damages. Mendoza, 206 Cal. App. 4th at 721 (“Factors relevant when assessing a claimed

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loss of society, comfort, and affection may include the closeness of the family unit, the

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depth of their love and affection, and the character of the deceased as kind, attentive, and

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loving.”). However, reference to Ms. NeSmith’s stays on base as “unauthorized” is of little

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probative value to this determination, and any probative value is substantially outweighed

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by a danger of unfair prejudice. Fed. R. Evid. 403. Therefore, when presenting evidence

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of Ms. NeSmith’s stays on base with Decedent, Defendants shall not characterize her stays

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as either authorized or unauthorized.

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Topic 5: The $20,000 loan Decedent took out before marrying Ms. NeSmith. The

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Court DENIES Plaintiffs’ request to exclude evidence of Topic 5, as it is relevant to

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Defendants’ theory that Decedent was financially motivated to hide his intent to commit

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suicide.

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Topic 6: Decedent’s loss of $3,000 while gambling in Las Vegas. The Court

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GRANTS Plaintiffs’ request to exclude evidence of Topic 6. Although it may be relevant

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to Defendants’ theory of the case, the little probative value it has is substantially

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outweighed by a danger of unfair prejudice. Fed. R. Evid. 403.

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Topic 7: Decedent’s excessive drinking after being released from the military

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custody. The Court DENIES Plaintiffs’ request to exclude evidence of Topic 7. As with

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Topic 3, evidence of Decedent’s alcohol consumption and drinking habits is admissible for
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the limited purpose of determining economic and noneconomic damages and will be

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subject to an appropriate limiting instruction.
Topic 8: Decedent’s jealousy or concerns of infidelity.

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The Court DENIES

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Plaintiffs’ request to exclude evidence of Topic 8. To the extent evidence of Decedent’s

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jealousy or concerns of infidelity relate to the determination of noneconomic damages, the

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evidence is admissible but will be subject to an appropriate limiting instruction. See

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Mendoza, 206 Cal. App. 4th at 721 (“Factors relevant when assessing a claimed loss of

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society, comfort, and affection may include the closeness of the family unit, the depth of

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their love and affection, and the character of the deceased as kind, attentive, and loving.”);

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see also Nehad v. Browder, Case No.: 15-CV-1386 WQH NLS, 2016 WL 1428069, at *4

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(S.D. Cal. Apr. 11, 2016) (“[V]aluation [of the martial relationship] is not a one-way street.

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Defendants are entitled to test the validity of the value of that marriage . . . .”).

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5.

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Attempts

Motion in Limine No. 5 to Exclude Evidence of Decedent’s Previous Suicide

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Plaintiffs’ fifth motion in limine seeks to exclude evidence of Decedent’s prior

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suicide attempts. (ECF No. 181.) Because it is undisputed that Decedent’s prior suicide

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attempts were not known to any Defendant or County personnel prior to Decedent’s

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suicide, Plaintiffs argue that this evidence is irrelevant and would only serve to

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“dehumanize” Decedent to the jury. (Id. at 2.) Plaintiffs, however, acknowledge that

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evidence of Decedent’s prior suicide attempts may be relevant to the determination of

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economic damages but argue that the “feeble” nature of the prior attempts render them of

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little probative value to Decedent’s life expectancy. (Id. at 3–4.) In contrast, Plaintiffs

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maintain that the danger of unfair prejudice should this evidence be admitted high. (See

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id. at 3.)

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Defendants oppose Plaintiffs’ motion and argue that Decedent used his prior suicide

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attempts as a form of manipulation against Ms. NeSmith and that evidence of them

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“provides context for the[ir] brief and volatile relationship.” (ECF No. 204 at 3–4.)

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Defendants also contend that Decedent’s prior suicide attempts are relevant to and directly

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impact the determination of economic damages and Decedent’s life expectancy. (Id. at 4.)

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The Court DENIES Plaintiffs’ motion to exclude evidence of Decedent’s prior

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suicide attempts and agrees with Defendants that this evidence is relevant to the

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determination of economic damages. Although the nature of Decedent’s prior suicide

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attempts4 may appropriately be characterized as feeble, Decedent’s life expectancy “is a

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question of fact for the jury to decide.” Allen, 109 Cal. App. 3d at 424. The jury may

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determine how much weight to give the prior attempts when determining Decedent’s life

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expectancy. Additionally, to the extent evidence of Decedent’s prior suicide attempts are

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probative of Decedent and Ms. NeSmith’s relationship, it is relevant to the determination

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of noneconomic damages. The Court does not find that FRE 403 bars this evidence, and

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Plaintiffs concerns of prejudice can be appropriately addressed by a limiting jury

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instruction.

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6.

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Dishonorable Discharge

Motion in Limine No. 6 to Exclude Decedent’s “Going AWOL” and

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Plaintiffs’ sixth motion in limine seeks to exclude evidence of Decedent’s “going

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AWOL” and his “dishonorable” 5 discharge from the Marines. (ECF No. 182.) Plaintiffs

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argue that the facts surrounding Decedent’s discharge are irrelevant and any reference to

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Per Ms. NeSmith’s testimony at her deposition, one prior attempt occurred following
a disagreement with Ms. NeSmith where Decedent tied a dog leash around his neck and
attempted to hang himself from a coat hanger on the back of a door. (ECF No. 181 at 8–
9.) Another incident occurred after Decedent learned he was going into military custody
where he threatened to hang himself with a phone charging cable fastened to a ceiling tile.
(Id. at 10–11.) It is also speculated that Decedent attempted to use his shoelaces to commit
suicide while in military custody. (Id. at 12–13.) The Court notes, however, that this
evidence is only admissible to the extent it is not inadmissible hearsay.
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Per the expert report of Bethany Payton-O’Brien, at the time of Decedent’s death,
he was on appellate leave and facing a possible “bad conduct” discharge from the Marines.
(ECF No. 202 at 18; 23.)
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Decedent’s military discharge as dishonorable is “inflammatory and highly prejudicial.”

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(Id. at 2.) Plaintiffs posit that stipulating that Decedent was merely “discharged” from the

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Marines, without any further information, is sufficient to address Defendants’ position that

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evidence of Decedent’s discharge from the military is relevant to economic damages. (Id.

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at 2.)

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In their opposition, Defendants “agree to not discuss the facts surrounding

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Decedent’s discharge for going AWOL” but generally oppose Plaintiffs’ motion and argue

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that Decedent’s discharge status and inability to obtain future compensation and benefits

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from the military is highly relevant to damages. (ECF No. 205 at 2.) Specifically,

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Defendants “believe that . . . the limited fact that Decedent was set to be dishonorably

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discharged . . . and the fact that he attacked another person (who happened to be a Marine)

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because of uncontrollable jealousy of M[s]. NeSmith . . . goes directly to the couple’s

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relationship and potential damages.” (Id. at 1–2.)

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The Court agrees with Plaintiffs that evidence of Decedent’s going AWOL is

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irrelevant; however, the time that Decedent spent with Ms. NeSmith while he was AWOL

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is relevant to the determination of noneconomic damages. Defendants are therefore

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permitted to produce evidence of Decedent and Ms. NeSmith’s relationship while

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Decedent was AWOL and may do so without addressing the fact that Decedent had left the

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Marines without official leave. Additionally, the Court agrees with Defendants and finds

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that some of the charges Decedent pleaded guilty to in his court-martial case—specifically,

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the charges that relate to Decedent’s drinking habits, drug use, and the assault and battery

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of another marine—are relevant to the determination of noneconomic damages.

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Accordingly, Plaintiffs’ request to exclude any evidence relating to the reasons why

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Decedent was discharged from the military is DENIED.

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Further, the Court agrees with Defendants that a stipulation that Decedent was

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merely “discharged” from the Marines would be misleading to the jury. Decedent’s

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possible dishonorable discharge is relevant to Defendants’ theory of the case that the

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pending appeal of Decedent’s court-martial case, and opportunity to still receive military
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benefits before possibly being dishonorably discharged, provided Decedent with financial

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motivation to hide his intent to commit suicide. Additionally, the Court finds that the

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probative value it has to Defendants’ theory is not substantially outweighed by a danger of

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unfair prejudice. Accordingly, Plaintiffs’ request to exclude reference to Decedent’s

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discharge as potentially dishonorable DENIED.

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7.

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Charges and Expert Opinion Regarding Decedent’s Potential Conviction and

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Sentence

Motion in Limine No. 7 to Exclude Evidence of Decedent’s Pending Criminal

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Plaintiffs’ seventh motion in limine seeks to exclude evidence of: (1) Decedent’s

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pending criminal charges at the time of his death; (2) the facts underlying Decedent’s

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pending criminal charges; and (3) Decedent’s potential criminal sentence and likelihood of

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conviction. (ECF No. 183.) Plaintiffs argue that the probative value of this information to

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the determination of damages is substantially outweighed by the danger of unfair prejudice,

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for the jury may “render a defense verdict based on an improper belief that a ‘bad person’

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should not be permitted to recover against a law enforcement officer.” (Id. at 3.) Plaintiffs

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also request that the Court find inadmissible the expert testimony of the Honorable

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Samantha Begovich,6 whose expert report (the “Begovich Report”) opines that Decedent

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would have been convicted of all charges against him and would have served two

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consecutive life terms in prison. (Id. at 3.) Plaintiffs argue that this information not only

20

speculative, but highly prejudicial, and Defendants concerns regarding the determination

21

of damages can be addressed “by instructing the jury that [Decedent] was in jail at the time

22

of his death and was facing charges of assault.” (Id. at 5–6.)

23
24
6

25
26
27
28

Defendants originally retained the Hon. Begovich, who at that time was a Deputy
District Attorney, to opine on the Decedents’ pending charges and potential conviction.
However, the Hon. Begovich was appointed as an immigration judge after Defendants
designated her as an expert and is no longer able to serve as an expert in light of her new
role. As addressed subsequently, Defendants propose substituting Deputy District
Attorney Wendy Patrick for the Hon. Begovich. See infra p. 36.
13
15-cv-00629-JLS-AGS

1

Defendants oppose Plaintiffs’ motion and argue that “[e]vidence regarding the

2

likelihood that [Decedent] would never be released from prison . . . and provide financial

3

support for Plaintiffs[] [and] the quality of emotional support and comfort Decedent would

4

have provided Ms. NeSmith” if he were incarcerated, is relevant to the determination of

5

damages. (ECF No. 206 at 2.)

6

Plaintiffs’ request to limit the jury’s knowledge of the criminal charges pending

7

against Decedent at the time of his death and to instruct the jury that Decedent was facing

8

“charges of assault” is DENIED. The Court will permit Defendants to inform the jury of

9

the specific charges Decedent was facing at the time of his death and the possible sentence

10

for each charge. The Court will also permit Defendants to introduce factual details of the

11

incident underlying Decedent’s domestic violence charges, for “prior instances of domestic

12

violence [are] pertinent to the amount of pecuniary support, comfort, and society

13

[Decedent] would have otherwise provided” Ms. NeSmith. Lopez, 2011 WL 672798, at

14

*3. The Court, however, finds inadmissible the factual details7 surrounding Decedent’s

15
16
7

17
18
19
20
21
22
23
24
25
26
27
28

Per the Begovich report, Decedent was facing charges for the following three
incidents:
(1) Decedent allegedly “‘coldcocked’ the [51-year-old] victim[,] punching his face,
got [the] victim on ground, and . . . held [the] victim’s throat with one hand and punched
him with his other hand.” (ECF No. 183 at 10.)
(2) Decedent allegedly asked the 67-year-old victim for directions, so the victim
“walked to the street to point out [a] route.” (Id.) After the victim turned away from
Decedent, he “felt [three] stab wounds to his back, side and head.” (Id.) Decedent
allegedly “went on to further stab/cut [the] victim in his nose by his right eye[ and] sliced
two of his fingers off or to bone.” (Id.) Decedent allegedly then “pushed [the] victim down
to the ground and stabbed him [six] more times,” in the left side of his head, right side of
his neck, elbow, right rib, and right hand between finger and thumb. (Id.) The victim’s
small intestines and diaphragm were also cut. (Id.)
(3) At her deposition, Ms. NeSmith testified that Decedent “assaulted her” after she
received a call from a male friend, “leaving marks on her neck and arms and smashing her
cell phone.” (Id. at 13.) When asked during her deposition, “So he was choking you and
holding you down and punching you?” Ms. NeSmith answered, “Yes. . . . He almost killed
me.” (id.; see also ECF No. 206 at 21–25).
14
15-cv-00629-JLS-AGS

1

other charges, and Plaintiffs’ motion is GRANTED in this respect. Any probative value

2

these charges have to the determination of either economic or noneconomic damages is

3

substantially outweighed by a danger of unfair prejudice and confusion of the issues. Fed.

4

R. Evid. 403.

5

Plaintiffs’ request to exclude the Begovich Report and related expert testimony is

6

likewise GRANTED. The Court agrees with Plaintiffs that the report, which opines that

7

Decedent would have been convicted of all charges against him and sentenced to two

8

consecutive life sentences,8 is highly speculative. As highlighted by Plaintiffs, regardless

9
10
11

8

Specifically, the Begovich Report opines that:

12
[w]ithin a reasonable degree of certainty, [Decedent] would have
been convicted of all the charges against him and enhancement
would have been found true after a jury trial due to the
overwhelming and uncontroverted evidence of identity, guilt,
lack of provocation by victims and documented injuries.

13
14
15
16
17

(ECF No. 183 at 10.) The report further opines that:

18

[Decedent] upon conviction at trial would have been sentenced
to [2] consecutive life terms in prison (for the attempted,
premeditated murder plus aggravated mayhem or torture) plus 5
years (3 years on the corporal injury to spouse, plus 3 additional
[8]-month prison terms on the false imprisonment of [one of the
victims] and Ms. NeSmith and the dissuasion of Ms. NeSmith
from reporting her victimization.) Consecutive life terms were
concluded to be almost certain for the following reasons:
victim’s two separate positions (standing and then prone), 20
approximate blows, three fatal versus several maiming injuries,
length of attack, lack of self-defense or contributory criminal
behavior by victim, use of a ruse and knife and relative
vulnerability (victim turning away when first stabbed) and age of
victim (67) versus [Decedent].

19
20
21
22
23
24
25
26
27
28

(Id. at 14.)
15
15-cv-00629-JLS-AGS

1

of the strength of the evidence against Decedent, “a plea deal or a cooperation agreement

2

could have affected the length of a sentence of whether [Decedent] would [have been]

3

convicted of all charged offenses.” (ECF No. 183 at 4.) Given the highly speculative

4

nature of the report, it has marginal probative value to the determination of economic and

5

noneconomic damages, and any probative value the report does have is substantially

6

outweighed by a danger of unfair prejudice, as well as confusion of the issues. Fed. R.

7

Evid. 403.

8

8.

Motion in Limine No. 8 to Exclude Evidence of Decedent’s Prior Bad Acts

9

Plaintiffs’ eighth motion in limine seeks to exclude evidence of Decedent’s use of

10

recreational, medicinal, or illicit drugs and prior acts of violence and aggression. (ECF No.

11

184.) Plaintiffs argue that Decedent “tested positive for methamphetamines on [only] three

12

occasions before and after going AWOL” and therefore, his methamphetamine use has

13

minimal probative value to the determination of damages. (Id. at 4.) Plaintiffs further

14

argue that the minimal probative value Decedent’s medicinal marijuana and

15

methamphetamine use have to the determination of damages “does not outweigh the

16

prejudicial impact that a jury may conclude that [Decedent] is a no-good drug addict.” (Id.

17

at 4.) Plaintiffs additionally argue that evidence of Decedent’s prior acts of violence and

18

aggression offer little to no probative value to the determination of damages, and if

19

Decedent “is presented as a deranged and violent lunatic[,] there will be a substantial risk

20

that the jury will render a defense verdict based not on the evidence but on emotions or

21

other improper motives . . . .” (Id. at 5.)

22

Defendants oppose Plaintiffs’ motion and argue that evidence of Decedent’s “drug

23

use and violent behavior towards M[s]. NeSmith and those around her [is] relevant and

24

admissible,” as it “goes directly to the issue of potential damages and the nature of the

25

couple’s relationship.” (ECF No. 207 at 1.) As to Decedent’s drug use, Defendants

26

underscore that his methamphetamine use was a factor that led to his court-martial case

27

and “would undoubtedly [have] affect[ed] his ability to provide financial and emotional

28

support” for Plaintiffs. (Id. at 3.) Defendants further maintain that Decedent’s “aggressive
16
15-cv-00629-JLS-AGS

1

and criminal conduct towards M[s]. NeSmith is critical to understanding the volatile nature

2

of their relationship.” (Id.)

3

Plaintiffs’ request to exclude evidence of Decedent’s drug use is DENIED. As

4

previously discussed, Decedent’s use of medicinal marijuana, to the extent he did so with

5

Ms. NeSmith, is relevant to their relationship and the determination of noneconomic

6

damages. See supra p. 5. Additionally, Decedent’s use of methamphetamine is relevant,

7

at minimum, to a determination of economic damages, as the jury will look to Decedent’s

8

“health, habits, occupation and activities” when determining his life expectancy. Allen,

9

109 Cal. App. 3d 424. Further, the Court disagrees with Plaintiffs that Decedent’s use of

10

“methamphetamine on three occasions cannot possibly impact” damages; although the

11

frequency of Decedent’s methamphetamine use impacts the probative value it has to

12

damages, that does not render the evidence irrelevant, and the jury may appropriately

13

decide what weight to give it when calculating damages.

14

Plaintiffs’ request to exclude evidence of Decedent’s prior acts of violence and

15

aggression is GRANTED as to those prior bad acts that are not instances of domestic

16

violence towards Ms. NeSmith or are not probative of Decedent and Ms. NeSmith’s

17

relationship. However, Plaintiffs’ request is DENIED as to Decedent’s prior bad acts of

18

domestic violence towards Ms. NeSmith or prior bad acts that are probative of Decedent

19

and Ms. NeSmith’s relationship.9

20
21
22
23
24
25
26
27
28

9

In their motion, Plaintiffs identify five incidents that Ms. NeSmith testified to during
her deposition that Plaintiffs believe Defendants may introduce evidence of at trial: (1) a
2012 charge for vandalism at San Diego State University; (2) an incident involving
Decedent “busting out” the couples’ car windows; (3) an incident where Decedent pushed
Ms. NeSmith during a disagreement; (4) an incident in Sacramento where a shotgun “was
pulled” on Kris; and (5) Decedent’s assault of another marine. (ECF No. 184 at 5.)
Incident three, as it is an act of domestic violence, is admissible. Additionally, the Court
has already ruled that incident five is admissible to the extent it is probative of Decedent
and Ms. NeSmith’s relationship. The Court, however, finds that it does not have sufficient
context to rule on the admissibility of the other three instances specifically.
17
15-cv-00629-JLS-AGS

1

9.

Motion in Limine No. 9 to Exclude Opinions and Testimony by Defense Experts

2

Plaintiffs’ ninth motion in limine seeks to exclude opinions and testimony of

3

various defense experts. (ECF No. 185.) As a preliminary matter, the Court finds that

4

Plaintiffs’ motion generally seeks to exclude expert testimony without meeting the

5

requirements under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and

6

Plaintiffs’ concerns regarding the reliability of these expert opinions can be appropriately

7

explored at trial on cross-examination.
Bethany Payton-O’Brien: Military Litigation Expert

8

A.

9

Plaintiffs seek to exclude all the conclusions of Defendants’ military litigation

10

expert, Bethany Payton-O’Brien, on the basis that they are “inflammatory, prejudicial, and

11

unnecessary to introduce” if it is stipulated that Decedent was “discharged” from the

12

military. (ECF No. 185 at 3.) Ms. Payton-O’Brien provided the following conclusions in

13

her expert report:

14
15
16
17
18
19
20
21
22
23

Conclusion 1: It is highly unlikely that NeSmith would have
prevailed on appeal of his military court-martial. Thus, but for
his death, NeSmith would have been discharged from the Marine
Corps with a bad conduct discharge.
...
Conclusion 2: Based upon the processing times in this case and
the normal times for processing appeals at the NMCCA, but for
his death, NeSmith’s 2013 USMC court-martial would have been
finalized and he would have been discharged with a bad conduct
discharged in the summer 2014.
...

24
25
26

Conclusion 3: During the pendency of NeSmith’s court-martial
appeal, at the time of his death and after his discharge, he would
not be entitled to military pay or allowances.

27
28

(Id. at 25–26; 29.)
18
15-cv-00629-JLS-AGS

1

Plaintiffs’ request to exclude Ms. Payton-O’Brien’s conclusions and testimony is

2

DENIED. Ms. Payton-O’Brien’s conclusions are relevant to Defendants’ theory of the

3

case that Decedent had financial motivation to hide his intent to commit suicide. However,

4

to the extent Ms. Payton-O’Brien will testify as to the charges which led to Decedent’s

5

court-martial case, she many only testify as to those charges related to Decedent’s drinking

6

habits, drug use, and assault of another marine. See supra p. 12.

7

B.

8

Plaintiffs seek to exclude several opinions of Defendants’ psychiatric expert, Dr.

9

Dominick Addario, on the grounds that Dr. Addario never evaluated or spoke to Decedent

10

and that his opinions “ignore” other evidence. (Id. at 3.) Those opinions Plaintiffs seek to

11

exclude include the following:

12

Dr. Dominick Addario: Psychiatric Expert

• “The cause and extent of [D]ecedent’s alleged mental injuries and/or conditions and
issues of causation . . . .”

13
14

• “[Decedent] and [Ms.] NeSmith had a most turbulent, difficult, and destructive
relationship as a result of his drug abuse and violent behavior.”

15
16

• “There were no warning signs to prevent [Decedent]’s suicide other than he had
emotional problems and had a psychiatric history.”

17
18
19

• “[Decedent]’s death during incarceration was without warning.”

20
• “If imprisoned for many years, it would be highly unlikely that [Decedent and Ms.
NeSmith] would have reinitiated their relationship. Based on the absence of any
signification employment before military service, [Decedent], facing dishonorable
discharge, serious legal criminal problems, and the likelihood of continued drug use,
his life expectancy would most likely have been five to ten years.”

21
22
23
24
25

(Id. at 10.)

26

Plaintiffs’ request to exclude these opinions is DENIED, except for Dr. Addario’s

27

opinion that predicts Decedent’s life expectancy to “most likely have been five to ten

28

///
19
15-cv-00629-JLS-AGS

1

years.” This specific opinion is highly speculative and therefore has little probative value,

2

which is substantially outweighed by a danger of unfair prejudice. Fed. R. Evid. 403.

3

However, Plaintiffs’ concerns that Dr. Addario is not qualified to opine on Decedent’s

4

“mental injuries and/or medical conditions and issues of causation” and that Dr. Addario’s

5

opinions ignore other testimony can be addressed at trial on cross-examination. See

6

Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence,

7

and careful instruction on the burden of proof are the traditional and appropriate means of

8

attacking shaky but admissible evidence.”).

9

C.

Dr. Hsien Chiang: Suicide Policies and Procedures Expert

10

Plaintiffs seek to exclude two opinions from Defendants’ suicide policies and

11

procedures expert, Dr. Hsein Chiang, on the grounds that Dr. Chiang “has no experience

12

as a deputy or training deputies” and his opinions “ignore[] the evidentiary record,”

13

including the testimony of Richard Beruman. (Id. at 4–5.) The two opinions of Dr. Chiang

14

that Plaintiffs seek to exclude are as follows:

15
[(1)] Based on my review of the documents provided, my
education and training in primary care medicine, 18 years of
clinical experience, of which over 11 years were spent in the
correctional healthcare setting, it is my opinion that policies and
procedures in place at SDSO addressing suicide prevention met
the prevailing state and national standards for adult detention
facilities and were not the cause of Mr. NeSmith’s unfortunate
suicide. [(2)] Furthermore, it is my opinion that SDSO’s staff
were not deliberately indifferent to Mr. NeSmith’s medical or
mental health needs. The SDSO staff acted appropriately base[d]
upon the information they were provided.

16
17
18
19
20
21
22
23
24
25

(Id. at 129.)

26

Plaintiffs’ request to exclude Opinion 1 is DENIED. The Court agrees with

27

Defendants that the reliability of this opinion and Dr. Chiang’s qualifications can be

28

///
20
15-cv-00629-JLS-AGS

Plaintiffs’ request to exclude Opinion 2,

1

addressed at trial on cross-examination.10

2

however, is GRANTED. Although Plaintiffs make no such argument in their motion, the

3

Court finds that Dr. Chiang’s opinion that “SDSO’s staff were not deliberately indifferent

4

to [Decedent]’s medical or mental health needs” is an inadmissible legal conclusion. See

5

Wiles v. Dep’t of Educ., Civ. Nos. 04–00442 ACK–BMK, 05–00247 ACK–BMK, 2008

6

WL 4225846, at *1 (D. Haw. Sept. 11, 2008) (“The Ninth Circuit has held that ‘an expert

7

witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate

8

issue of law.’ . . . In this case the Court finds that the term ‘deliberate indifference’ is such

9

a judicially defined and/or legally specialized term. Therefore, Plaintiffs’ experts may not

10

couch their opinions in terms of whether or not Defendant engaged in ‘deliberate

11

indifference’ specifically.” (quoting Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1066 n.10

12

(9th Cir. 2002), overruled on other grounds by United States v. Bacon, 979 F.3d 766

13

(2020))); see also M.H. v. County of Alameda, Case No. 11–cv–02868–JST, 2015 WL

14

54400, at *2 (N.D. Cal. Jan. 2, 2015) (“Defendants are correct that the expert testimony

15

using the legally significant terms ‘deliberate indifference’ and ‘objective reasonableness’

16

should be excluded.”).

17

D.

18

Plaintiffs seek to exclude those opinions by Defendants’ economic loss expert, Laura

19

Fauchs Dolan, that rely on the Begovich Report. (ECF No. 185 at 6, 11.) In light of the

20

Court’s previous finding that the probative value of the Begovich Report is substantially

21

outweighed by a danger of unfair prejudice, see supra p. 15, the Court GRANTS Plaintiffs’

Laura Fauchs Dolan: Economic Loss Expert

22
23
24
25
26
27
28

Plaintiffs also argue that the Court should find Dr. Chiang’s opinions inadmissible
because his opinions exceed the “scope” of Defendants’ expert designation. (ECF No. 185
at 5.) However, Federal Rule of Civil Procedure 26(a)(2)(A) provides only that expert
disclosures must contain “the identity of any witness it may use at trial to present evidence
under Federal Rule of Evidence 702, 703, or 705,” and Plaintiffs provide no support for
their proposition that expert designations must contain not only the designation of the
expert, but all topics to which the expert will opine in his disclosure.
10

21
15-cv-00629-JLS-AGS

1

request. Those portions of Ms. Dolan’s report, and anticipated testimony, that rely on or

2

incorporate the Begovich Report are inadmissible pursuant to FRE 403.

3

E.

4

Plaintiffs seek to exclude three hypothetical scenarios in the report of Defendants’

5

vocational rehabilitation expert, Dr. Behnush Mortimer, and argue that the scenarios are

6

“entirely speculative and unsupported.” (ECF No. 185 at 7.) Plaintiffs further argue that

7

Dr. Mortimer “offered no reasoning or literature” to support Scenario 1, that there is no

8

evidence that Decedent suffered from “polysubstance abuse,” and that Scenario 2 relies on

9

the Begovich Report, which is inadmissible. (Id. at 7–8.) Those scenarios Plaintiffs seek

10

to exclude are as follows:

11

Scenario 1 – But for his death, based on the consideration of Mr.
NeSmith’s polysubstance abuse, ADHD, and borderline
personality disorder, Mr. NeSmith would not have been
competitively employable once separated from the military.

12
13
14
15

Scenario 2 – But for his death, in addition to the limitations stated
above, Mr. NeSmith had pending a likely criminal conviction
leading to two life term sentences. Given this scenario, Mr.
NeSmith would not have been competitively employable.

16
17
18
19

Scenario 3 – In a best[-]case scenario, in the event Mr. NeSmith
was released from felony custody and at some point sought
treatment for his drug use and subsequent symptomatology,
starting at age 40 he would have had capacity to earn at the
minimum wage earing level subject to the loss of worklife
described below given the combination of impairments (felony
history, polysubstance abuse, borderline personality disorder,
ADHD).

20
21
22
23
24
25
26

Dr. Behnush Mortimer: Vocational Rehabilitation Expert

(Id. at 171.)

27

Plaintiffs’ request to exclude Scenarios 1, 2, and 3 in Dr. Mortimer’s report is

28

DENIED. Plaintiffs’ concerns regarding the reliability of Dr. Mortimer’s opinion as to
22
15-cv-00629-JLS-AGS

1

Scenario 1 can be addressed at trial on cross-examination. Additionally, although the

2

scenarios are speculative, the Court does not find that their probative value is outweighed

3

by a danger of unfair prejudice, as the jury will know that Decedent was facing serious

4

criminal charges at the time of his death. However, the Court will preclude Dr. Mortimer

5

from describing Decedents’ criminal conviction as “likely” in Scenario 2 and from

6

characterizing Scenario 3 as “a best[-]case scenario” pursuant to FRE 403.11

7

F.

8

Plaintiffs seek to preclude Defendants’ correctional healthcare expert, Royanne

9

Schissel, from offering “[a]ny opinions regarding the nursing staff’s reasonable conduct”

10

as irrelevant because there are no remaining “medical” defendants in this case. (Id. at 8.)

11

Plaintiffs also seek to exclude Ms. Schissel from offering (1) “[a]ny opinions regarding a

12

deputy’s reasonable conduct” because she “is not qualified” to opine on such topics and

13

(2) from “rendering an opinion regarding Deputy Olsen and Newlander’s conduct” because

14

she failed to consider Richard Beruman’s testimony. (Id.)

Royanne Schissel: Correctional Healthcare Expert

15

Plaintiffs did not attach Ms. Schissel’s opinion to the instant motion for the Court’s

16

consideration. However, Defendants do not oppose Plaintiffs’ request to exclude Ms.

17

Schissel’s opinions or testimony regarding the conduct of nursing staff. (ECF No. 208 at

18

2.) Accordingly, Plaintiffs’ motion is GRANTED in this respect. However, Plaintiffs’

19

request to exclude Ms. Schissel’s opinion regarding the conduct of Deputies Olsen and

20
21
22
Plaintiffs also argue, in passing, that the Court should exclude Dr. Mortimer’s “first,
second, and fourth conclusions” because they are “a complete regurgitation of Bethany
Payton-O’Brien’s report, and [are] therefore outside the scope of Dr. Mortimer’s
experience.” (ECF No. 185 at 7.) The “conclusions” that Plaintiffs contest are not Dr.
Mortimer’s own conclusions and appear in Dr. Mortimer’s report under a heading of
“Independent Vocational Evaluation and Research Summary.” (Id. at 161.) Contrary to
Plaintiffs’ contentions, it does not appear to the Court that Dr. Mortimer offers the opinions
of Ms. Payton-O’Brien’s as her own, but instead, relied on them in reaching her own
evaluation of Decedent’s employability.
11

23
24
25
26
27
28

23
15-cv-00629-JLS-AGS

1

Newlander is DENIED. Plaintiffs’ concerns regarding the reliability of this opinion and

2

Ms. Schissel’s qualifications can be addressed at trial on cross-examination.

3

10.

4

Surrounding the Retirement of Plaintiffs’ Expert Richard Lichten

Motion in Limine No. 10 to Exclude Evidence of the Circumstances

5

Plaintiffs’ tenth motion in limine seeks to exclude evidence of the circumstances

6

surrounding the retirement of their correctional procedures expert, Richard Lichten. (ECF

7

No. 186.) Plaintiffs contend that Mr. Lichten “is a 30-year law enforcement veteran with

8

extensive experience in correctional procedures and conduct” who retired from the Los

9

Angeles County Sheriff’s Department (“LASD”) in 2008 under “normal” circumstances.

10

(Id. at 3.) Plaintiffs submit, however, that at the time of Mr. Lichten’s retirement, “a

11

civilian employee of the Sheriff’s Department had accused him of engaging in an improper

12

relationship with her.” (Id.) Because there was never an investigation, and Mr. Lichten

13

was never disciplined, Plaintiffs contend this information is irrelevant, has “nothing to do

14

with his expert testimony,” and “presents a high risk of prejudice.” (Id. at 3–4.)

15

Defendants oppose Plaintiffs’ motion and assert that the circumstances surrounding

16

Mr. Lichten’s retirement were “anything but normal.” (ECF No. 209 at 1.) According to

17

Defendants, Mr. Lichten retired from LASD because “he masturbated multiple times in a

18

female co-worker’s workspace at the jail where he was a law enforcement officer in

19

charge” and “lied about doing so.” (Id. at 2.) Defendants submit evidence of this in the

20

form of Mr. Lichten’s own testimony from a deposition taken on January 9, 2019, in

21

Moriarty, et al. v. County of San Diego, et al., Case No. 17-cv-1154-LAB-AGS (S.D. Cal.):

22
23
24
25
26
27
28

Q:
And you retired when you were found masturbating in the
workplace, correct?
A:

That’s why I retired, in lieu of an investigation.

Q:
And while you were masturbating in the workplace, you
were on duty?
A:

Yes.
24
15-cv-00629-JLS-AGS

1
Q:
You were masturbating in the office where a female
secretary worked?

2
3

A:

6

You left your semen in the secretary’s work area?

A:

5

Yes. She was not in the facility. Yes.

Q:

4

That was the allegation. The answer is yes.

7
Q:
And then the woman came in earlier unexpectedly and saw
that you were in her work area, right?

8
9

A:

10
11

Correct.

Q:
And you lied to her and said you were in there to use a
phone?

12
13

A:
Right. I said it was a spur of the moment comment. To
save her and me embarrassment, I said I was on the phone.

14
15

(Id. at 24–25.) Defendants argue that the circumstances surrounding Mr. Lichten’s

16

retirement—to which he has testified to—are relevant to show his bias against law

17

enforcement, as well as dishonesty and poor judgment. (See id. at 2–5.)

18

The Court agrees with Defendants and finds that evidence of Mr. Lichten’s

19

retirement is admissible to show possible bias against law enforcement, as well as to attack

20

his qualifications and credibility as an expert on correctional procedures. As highlighted

21

by Defendants in their opposition, the Central District of California previously addressed

22

this exact issue—whether the circumstances surrounding Mr. Lichten’s retirement are

23

relevant and admissible evidence to show bias and attack credibility—in Eliot v. County of

24

Orange, No. SACV1400893CJCRNBX, 2018 WL 5099709 (C.D. Cal. May 4, 2018). In

25

Eliot, the district court found that the defendants should be permitted to ask Mr. Lichten

26

questions about the circumstances of his retirement on cross-examination, for “Mr. Lichten

27

may harbor resentment about being compelled into retirement, and may have bias against

28

///
25
15-cv-00629-JLS-AGS

1

law enforcement agencies as a result.” Id. at *2. The district court in Eliot further reasoned

2

that evidence of Mr. Lichten’s sexual misconduct in the workplace was also relevant

3

because the plaintiff intended, as Plaintiffs intend here, “[t]o bolster Mr. Lichten’s

4

credibility and the reliability of his opinions” with evidence that “Mr. Lichten has had a

5

long and successful career in law enforcement” and “has established himself as a leader in

6

police conduct. Id. The district court also dismissed the plaintiff’s concerns of prejudice,

7

finding that “evidence of Mr. Lichten’s sexual misconduct and forced retirement is

8

certainly prejudicial” but nevertheless, “highly probative of potential bias.” Id. This Court

9

finds persuasive the district court’s reasoning in Eliot and likewise finds that FRE 403 does

10

not bar admissibility of evidence surrounding Mr. Lichten’s retirement. Accordingly,

11

Plaintiffs’ motion is DENIED. However, Defendants must sanitize for the jury the

12

misconduct which led to Mr. Lichten’s retirement, and this evidence will be subject to an

13

appropriate limiting instruction.
DEFENDANTS’ MOTIONS IN LIMINE

14
15

1.

16

Post-Incident Investigations

Motion in Limine No. 1 to Exclude News Articles, Post-Incident Suicides, and

17

Defendants’ first motion in limine seeks to exclude news articles about “jail

18

suicides” and evidence of post-incident jail suicides and investigative findings. (ECF No.

19

187.)

20

A.

21

Defendants contend that Plaintiffs “seek to admit numerous news articles pertaining

22

to inmate suicides that occurred” from 2007 to 2015 at trial, but these articles, which

23

“describe pre[-] and post[-]incident suicides and unrelated litigation,” are inadmissible

24

hearsay and use “highly inflammatory language” that is unfairly prejudicial against

25

Defendants. (Id. at 2.) Plaintiffs oppose Defendants’ request and argue that their second,

26

third, and fourth causes of action require them to prove that the County “was deliberately

27

maintaining inadequate prevention policies and training” to prevent inmate suicides and

28

that these articles are necessary to establish that the Count was on notice that these

Articles Regarding Pre- and Post-Incident Jail Suicides

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1

inadequacies violated inmates’ constitutional rights.

2

Defendants’ argument that these articles are hearsay, Plaintiffs contend that the articles

3

contain quoted statements from the County regarding whether it was on notice that it was

4

maintaining inadequate suicide prevention policies and training procedures, and these

5

statements constitute non-hearsay party admissions. (See id. at 10–11.)

(ECF No. 194 at 6.)

As to

6

Defendants’ request to exclude all news articles concerning inmate suicides while in

7

County custody is DENIED as to the specific statements in articles that predate Decedent’s

8

suicide that are attributable to a County official at a policy-making level that are probative

9

of notice of policy and training failures. The Court finds that these specific statements are

10

relevant, are not hearsay pursuant to FRE 801(d)(2), and are not barred by FRE 403. E.g.,

11

Fogleman v. County of Los Angeles, Case No. CV 10–6793 GAF (SHx), 2012 WL

12

13005832, at *5 (C.D. Cal. July 25, 2012) (“Newspaper articles that contain quoted

13

statements from Sheriff Baca, from any County official at a policy-making level, and from

14

any of the named defendants in this case, may be admitted pursuant to Rule

15

801(d)(2)(A).”). As discussed at the hearing, the parties shall meet and confer before trial

16

and identify the specific statements in pre-incident articles that are admissible based on this

17

ruling.

18

However, the Court finds that post-incident statements that would otherwise qualify

19

as opposing party statements under FRE 801(d)(2) are inadmissible pursuant to FRE 403.

20

Defendants’ motion is therefore GRANTED in this respect. Defendants’ motion is further

21

GRANTED as to the indiscriminate admission of pre- and post-incident articles generally,

22

as the articles are hearsay without an exception. Fed. R. Evid. 801(c). Additionally, even

23

if the articles could be offered not for the truth of the matter asserted but for notice to the

24

County, the Court finds that their probative value to notice is substantially outweighed by

25

a danger of unfair prejudice. Fed. R. Evid. 403.

26

B.

27

Defendants also contend that Plaintiffs seek to admit other evidence of post-incident

28

suicides, such as a Disability Rights Commission (“DRC”) Investigation Report from 2018

Evidence of post-incident jail suicides and investigative findings

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1

and a Grand Jury Report from 2017 that “examines jail policies in effect in 2016–2017.”

2

(ECF No. 187 at 7.)

3

inadmissible because they post-date Decedent’s suicide and therefore are irrelevant, are

4

“overly” prejudicial, and are evidence of subsequent remedial measures under FRE 407.

Defendants argue that these post-incident investigations are

5

Plaintiffs oppose Defendants’ request and cite to Ninth Circuit authority stating that

6

“in general, ‘post-event evidence is not only admissible for proving the existence of a

7

municipal defendant’s policy or custom, but is highly probative with respect to that

8

inquiry.” (ECF No. 194 at 12 (quoting Henry v. County of Shasta, 132 F.3d 512, 519 (9th

9

Cir. 1997)).) Further, as to the 2017 Grand Jury Report specifically, Plaintiffs argue that,

10

although the report post-dates Decedent’s suicide by three years, the report is relevant

11

because the grand jury “reviewed the very version of the M.D.S. 10 and J.5 policies that

12

are at[]issue in this case” and the report contains responses from Sheriff Bill Gore that

13

constitute opposing party statements under FRE 801(d)(2). (ECF No. 194 at 11.) As to

14

the DRC Investigation Report, Plaintiffs argue that the report is not hearsay if it is admitted

15

for purpose of establishing notice. (See id. at 13.)

16

Defendants’ request to exclude the 2007 Grand Jury Report and Sheriff Gore’s

17

responses thereto in GRANTED in part and DENIED in part. First, although Plaintiffs

18

make no such argument, the Court finds that the Grand Jury Report is hearsay but qualifies

19

for the public records exception under FRE 803(8)(A)(iii), as the report contains factual

20

findings from a legally authorized investigation. E.g., McConnell v. Lassen County, No.

21

CIV. S-05-0909 FCD DAD, 2008 WL 4482853, at *3 (Oct. 3, 2008) (“Pursuant to

22

California Penal Code [§] 933, county grand juries have the authority and duty to

23

investigate

24

recommendations. Such evaluative reports are based on a factual investigation and are thus

25

admissible subject to the trustworthiness requirement of Rule 803(8)(C). Defendant

26

concedes the applicability of Rule 803(8)(C) . . . .”); see also George v. Sonoma County

27

Sheriff’s Dep’t, No. C–08–02675 EDL, 2010 WL 4117372, at *6 (N.D. Cal. Oct. 19, 2010)

28

(finding civil grand jury reports admissible pursuant to the public records exception to the

appropriate

subjects

and

prepare

reports

including

findings

and

28
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1

hearsay rule, FRE 803(8)). However, the Court finds relevant and admissible only the

2

portions of the Grand Jury Report that examine suicide prevention policies that were in

3

place at the time of Decedent’s suicide in 2014.12 Likewise, the Court finds that Sheriff

4

Gore’s responses to the Grand Jury Report are not hearsay, for they qualify as opposing

5

party statements under FRE. However, the Court finds relevant and admissible only those

6

responses that were made in response to relevant findings, i.e., findings that examined

7

suicide prevention policies that were in place at the time of Decedent’s suicide in 2014.

8

Additionally, Defendants’ request to exclude the DRC Investigation Report is

9

GRANTED, for the Court finds that this report is hearsay without an exception. Fed. R.

10

Evid. 801. Although Plaintiffs argue that the report is not hearsay if it is admitted for the

11

purpose of establishing notice, they fail to explain how the report is probative of notice and

12

what portions they seek to admit for purposes of establishing notice.

13

2.

Motion in Limine No. 2 to Preclude Golden Rule Questioning and Argument

14

Defendants’ second motion in limine seeks to preclude “parties, counsel, or their

15

witnesses[] from presenting any evidence or testimony [that] would encourage the jury to

16

place themselves in Plaintiffs’ or [D]ecedent’s shoes.” (ECF No. 188 at 3.) Because

17

Plaintiffs do not oppose the motion and agree that they “will not present evidence or

18

testimony encouraging the jury to place themselves in Plaintiffs’ or [D]ecedent’s shoes,”

19

Defendants’ motion is GRANTED. Accordingly, no party, counsel, or witness at trial

20

shall engage in “golden rule” questioning or argument.

21
22
23
24
25
26
27
28

12

Defendants argue, and the Court understands that, the grand jury examined policies
that were in effect in 2016–2017, but Decedent’s suicide occurred in 2014. However, at
the hearing, Plaintiffs reiterated their position that, to the extent the Grand Jury Report
analyzes policies that are identical to the policies in place in 2014, that information is
relevant. The Court finds Plaintiffs’ argument persuasive. Moreover, Defendants have not
shown that there is affirmatively no overlap between the polices in place in 2014 and those
in place in 2016–2017.
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1

3.

2

Medical Testimony

Motion in Limine No. 3 to Prevent Expert Opinion Without Basis or Hearsay

3

Defendants’ third motion in limine seeks to preclude Plaintiffs from presenting: (1)

4

evidence or testimony concerning Decedent’s income before he joined the military; and (2)

5

evidence or testimony that would necessitate an expert opinion about whether Decedent

6

would have been criminally convicted, the potential length of Decedent’s incarceration, or

7

whether Decedent would have been dishonorably discharged from the military. (ECF No.

8

189 at 1–2.) Defendants argue that Plaintiffs “never produced documentation indicating

9

[that Decedent] earned any income prior to his incarceration.” (Id. at 2.) Defendants

10

further argue that Plaintiffs did not disclose any expert opinions regarding the probability

11

of Decedent’s conviction and possible sentence pursuant to Federal Rule of Civil Procedure

12

(“FRCP”) 26(a)(2)(A) and are therefore precluded from rebutting Defendants’ expert

13

testimony regarding these issues at trial pursuant to FRCP 37(c)(1). (Id. at 2–3.)

14

In their opposition, Plaintiffs oppose Defendants’ motion only as to Defendants’

15

request to preclude Plaintiffs from presenting evidence or testimony regarding Decedent’s

16

past income outside of the military. (ECF No. 196 at 2.) Plaintiffs argue that, contrary to

17

Defendants’ assertion that they did not produce any documentation concerning Decedent’s

18

income prior to incarceration, Plaintiffs produced written discovery “disclosing what jobs

19

[Decedent] had prior to joining the Marines at the age of eighteen.” (Id. at 4.) Plaintiffs

20

also argue that they produced the expert report of economist Dr. Kaycea Campbell, and her

21

report “accounted for [Decedent]’s work history prior to the Marines” and opined on

22

“Plaintiffs’ financial loss as a result of [Decedent]’s death.” (Id. at 5.)

23

Because Plaintiffs do not argue that they should be allowed to put on evidence of

24

whether Decedent would have been dishonorably discharged or evidence concerning his

25

likelihood of conviction or potential length of incarceration, the Court GRANTS

26

Defendants’ motion in this respect. However, the Court DENIES Defendants’ request to

27

preclude Plaintiffs from presenting evidence of or testifying to Decedent’s past income to

28

the extent Defendants’ request encompasses Dr. Campbell’s expert report or testimony.
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1

Defendants do not set forth any argument as to why Dr. Campbell’s report should be

2

excluded.

3

4.

4

Reports

Motion in limine No. 4 to Exclude Expert Opinions Set Forth in Untimely

5

Defendants’ fourth motion in limine seeks to exclude as untimely: (1) the

6

supplemental report of Mr. Lichten; and (2) the supplemental report of Plaintiffs’

7

psychiatric expert, A.E. Daniel. (ECF No. 190 at 2.) Defendants maintain that the

8

“supplemental” report of Mr. Lichten should not be construed as a supplemental report

9

because it contains a new opinion that Mr. Lichten could have opined to before the expert

10

disclosure deadline, namely that the defendant deputies violated “policies by splitting up

11

the conduct cell checks.” (Id. at 2.) Defendants further maintain that the “supplemental”

12

report of Mr. Daniel is actually a rebuttal report, as it “contains analysis of the County’s

13

expert statistical consultant’s January 19, 2018 report.” (Id. at 3.) Defendants argue that,

14

because neither report is truly a supplemental disclosure, and Plaintiffs served both reports

15

after the expert disclosures deadline, the Court should exclude both reports as untimely.

16

Plaintiffs oppose Defendants’ motion and argue that Mr. Lichten’s supplemental

17

report is based on a site inspection of the Vista Detention Facility that did not occur until

18

after the disclosure deadline because Defendants initially objected to the inspection, which

19

was noticed before the deadline, and “demanded a long and drawn-out meet and confer

20

process.” (ECF No. 197 at 2.) Plaintiffs further argue that Dr. Daniel could not produce

21

his supplemental report “regarding the statistical analysis of the [C]ounty’s self-created

22

suicide rate because the raw data necessary to calculate the suicide rate was not produced”

23

until after the disclosure deadline. (Id. at 2.) Plaintiffs contend that, even if the Court finds

24

that the reports are untimely, Defendants did not suffer any harm, for Defendants had the

25

opportunity to question both Mr. Lichten and Dr. Daniel regarding these reports during

26

their depositions. (See id. at 3–4.)

27

Under FRCP 26(a), litigants must disclose all expert opinions and related materials

28

that may be used at trial and make such disclosures at the times directed by the court. Fed.
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1

R. Civ. P. 26(a)(2)(C). FRCP 26(e) further obligates parties to supplement an initial expert

2

report “if the party learns that in some material respect the disclosure or response is

3

incomplete or incorrect, and if the additional or corrective information has not otherwise

4

been made known to the other parties . . . .” Fed. R. Civ. P. 26(e). Pursuant to FRCP

5

37(c)(1), “if a party fails provide information or identify a witness as required by Rule

6

26(a) or (2), the party is not allowed to use that information or witness to supply evidence

7

on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is

8

harmless.” Fed. R. Civ. P. 37(c)(1).

9

Defendants’ motion is DENIED. Regardless of whether Mr. Lichten’s and Dr.

10

Daniel’s reports were untimely, or if their untimeliness was not substantially justified, the

11

Court agrees with Plaintiffs and finds that the timing of Plaintiffs’ disclosures have not

12

caused Defendants any harm. At the hearing, the Court inquired whether Defendants had

13

the opportunity to question Mr. Lichten and Dr. Daniels about the reports in question

14

during their depositions, and Defendants confirmed that they did. The Court acknowledges

15

that Plaintiffs produced Dr. Daniel’s report the day before his deposition (ECF No. 197 at

16

2), but Defendants do not argue that they were harmed by this timing and were able to

17

question Dr. Daniel about the report during his deposition. Additionally, Defendants’

18

concerns regarding Dr. Daniel’s qualifications to opine on statistics or statistical data can

19

appropriately be addressed at trial on cross-examination.

20

5.

21

Decedent’s Pre-Incident Mental Health Treatment

Motion in Limine No. 5 to Exclude Lay Opinions Regarding PTSD and

22

Defendants’ fifth motion in limine seeks to exclude: (1) lay opinions regarding

23

Decedent’s “alleged PTSD from an alleged April 2013 training accident”; and (2)

24

testimony regarding Decedent’s mental health treatment for suicidal ideation while in

25

military custody. (ECF No. 191 at 1.) Defendants argue that this evidence should be

26

excluded because it is “speculative, involves improper lay opinion, contains hearsay

27

without exception, confuses the issues, and is unduly prejudicial.” (Id. at 1–2.) As to the

28

training accident specifically, Defendants contend that the only evidence that the accident
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1

happened is the testimony of Decedent’s father. (Id. at 3.) At his deposition, Decedent’s

2

father testified that he “was provided an investigative report” regarding the incident, but

3

this report “was never produced in discovery.” (Id.) Defendants additionally point out

4

that none of Plaintiffs’ experts provided an opinion “casually linking the April 2013

5

accident at Camp Heron to any PTSD diagnosis.” (Id. at 2.)

6

Plaintiffs oppose only Defendants’ request to exclude testimony regarding the

7

alleged training accident and Decedent’s subsequent PTSD and argue that Ms. NeSmith

8

and Decedent’s father “both observed that [Decedent] was psychologically impacted by

9

the training incident” and should be allowed to testify as to their perceived changes in his

10

behavior. (ECF No. 198 at 2.)

11

Defendants’ request to exclude lay testimony that Decedent suffered from PTSD due

12

to a training accident that occurred in April 2013 is GRANTED. Per FRE 701, lay witness

13

opinion testimony cannot be “based on scientific, technical, or other specialized knowledge

14

within the scope of Rule 702.” Ms. NeSmith and Decedent’s father therefore may not

15

appropriately diagnose Decedent with PTSD or casually link Decedent’s PTSD to the

16

alleged training accident. See Lillie v. ManTech Int’l Corp., Case No. 2:17-cv-02538-CAS-

17

SSx, 2018 WL 6323076, at *5 (C.D. Cal. Dec. 3, 2018) (“Rule 701 has been used to bar

18

lay witnesses from testifying as to their opinion on causation where such a determination

19

would require the experience of an expert. . . . Thus, to the extent that defendant seeks to

20

exclude medical opinions as to the causation of plaintiff’s alleged emotional distress and

21

any diagnoses, the Court [grants] defendant’s motion [in limine].”). Additionally, to the

22

extent the only evidence verifying that the April 2013 training accident occurred is

23

Decedent’s father’s testimony that Decedent told him about the accident, Plaintiffs’

24

witnesses are precluded from referencing the accident, for this evidence is inadmissible

25

hearsay. Fed. R. Evid. 801. However, Ms. Ne Smith and Decedent’s father are permitted

26

to testify as to Decedent’s symptoms and behavioral changes that they personally observed

27

during this time. See Fed. R. Evid. 701(a); see also Burke v. City of Santa Monica, No.

28

CV-09 02259 MMM (PLAx), 2011 WL 13213593, at *20 (C.D. Cal. Jan. 10, 2011) (“Any
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15-cv-00629-JLS-AGS

1

lay witness who is familiar with another person’s general demeanor would be competent

2

to testify regarding changes in that demeanor . . . .”).

3

6.

Motion in limine No. 6 to Exclude the Post-Incident E-mail from Barbara Lee

4

Defendants’ sixth motion in limine seeks to exclude evidence of a post-incident e-

5

mail sent on March 1, 2014—the day of Decedent’s suicide—that refers to the suicide.

6

(ECF No. 192.) Specifically, Ms. Lee received an e-mail at 8:42 AM from a San Diego

7

Sherriff’s Department employee with the following information:

8

Received call from VDF @0742 today reporting I/P Nesmith,
Kristopher #13784410 housed in Upper West (mainline; no
roommate) paramedics pronounced death @0735.

9
10
11

Demographics: 21 year old white male; booked 11/30/13;
[C]harge: attempted murder;
Court date[:] 3/13/14
Medications: Desyrel 50 mg QHS
Most recent appointment: psych sc 2/2/14
Pending appointment: psych sc 3/2/14
Dx: 307.42 Insomnia; 304.3 Cannabis Dependence

12
13
14
15
16

During sworn’s hourly rounds, I/P was found hanging with bed
sheet between bed & commode.

17
18

Phone notification made to MSD Administrator on call @0751.

19
20

(Id. at 5.) Ms. Lee replied to this e-mail at 8:54 AM, stating, “This inmate fit the suicide

21

profile – young, white male on serious criminal charges. I’m wondering why he wasn’t on

22

our radar.” (Id.) Defendants maintain that Ms. Lee’s response constitutes “classic hearsay

23

without an exception,” as Ms. Lee is not a party in this case. (Id. at 2.) Further, Defendants

24

contend that Ms. Lee, as the Medical Services Administrator for the San Diego County

25

Sheriff’s Department, is not a medical professional and her e-mail constitutes improper lay

26

opinion, for she made her response “without guidance or input from medical professionals”

27

and without “adequate information.” (See id.)

28

///
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15-cv-00629-JLS-AGS

1

Plaintiffs oppose Defendants’ motion and argue that Ms. Lee’s response is not

2

hearsay because she was a County employee when she sent the reply e-mail, and thus, her

3

response it is an opposing party’s statement under FRE 801(d)(2)(D). (ECF No. 199 at 3.)

4

Plaintiffs further argue that Ms. Lee’s response is not improper lay opinion because, as the

5

Medical Services Administrator, Ms. Lee has “hands-on involvement with the suicide

6

prevention policies” and personal knowledge of “the known factors and triggers associated

7

with an inmate’s elevated risk of suicide.” (Id. at 4.)

8

Defendants’ motion is DENIED. Ms. Lee, as the Medical Services Administrator

9

for the San Diego County Sheriff’s Department, was a County employee acting within the

10

scope of her employment when she sent the response, and therefore, the response is not

11

hearsay under FRE 801(d)(2)(D). In her declaration attached to the instant motion, Ms.

12

Lee declares that she is “the Medical Services Administrator for the San Diego County

13

Sheriff’s Department,” a position she has held since 2012. (ECF No. 192 at 7.) Ms. Lee

14

further declares that, as Medical Services Administrator, she “oversee[s] the administration

15

of the provision of medical services in all County detention facilities.” (Id.) Notably,

16

Defendants make no argument that Ms. Lee’s response does not qualify as an opposing

17

party’s statement under FRE 801(d)(2)(D). Instead, they argue that the statement is

18

affirmatively hearsay without an exception.

19

Further, the Court does not find that Ms. Lee’s response is improper lay witness

20

testimony. As Plaintiffs highlight, Ms. Lee’s response is not medical opinion and appears

21

to be based on her familiarity with the suicide warning signs as specified by the County’s

22

Suicide Prevention & Precaution Program in effect at the time of Decedent’s death. (See

23

ECF No. 128 at 16.) Additionally, the Court does not find that the probative value of Ms.

24

Lee’s response is substantially outweighed by a danger of unfair prejudice, and Defendants

25

may cross-examine Ms. Lee as to why she made this statement and her knowledge of

26

Decedent’s medical treatment and history at the time.

27

///

28

///
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15-cv-00629-JLS-AGS

1

DEFENDANTS’ MOTION TO AMEND PRETRIAL ORDER TO SUBSTITUTE

2

EXPERT WITNESS

3

Defendants move to substitute their expert, the Honorable Samantha Begovich, with

4

Deputy District Attorney Wendy Patrick. (ECF No. 193.) As addressed supra, the Hon.

5

Begovich was appointed as an immigration judge after Defendants designated her as an

6

expert and is no longer able to serve as an expert in her new role. (Id. at 2.) Defendants

7

state that “Ms. Patrick has reviewed [the Begovich report] . . . and completely adopts all

8

the opinions expressed therein and has no change of opinion.” (Id.)

9

Because the Court has determined that the Begovich Report is inadmissible under

10

FRE 403, Ms. Patrick’s substitution is unnecessary. Accordingly, Defendants’ motion is

11

DENIED as moot.

12
13

IT IS SO ORDERED.
Dated: January 28, 2022

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