Godinez v. Maleno Huerta et al

Filing 70

ORDER Granting in Part and Denying in Part 47 Motion in Limine to Exclude or Limit Testimony of Plaintiff's Expert Roger Clark. Signed by Judge Cynthia Bashant on 5/1/2018. (mxn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALMA ROSA GODINEZ,

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Case No. 16-cv-0236-BAS-NLS
Plaintiff,

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ORDER GRANTING IN PART
AND DENYING IN PART
MOTION IN LIMINE TO
EXCLUDE OR LIMIT
TESTIMONY OF PLAINTIFF’S
EXPERT ROGER CLARK

v.

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JORGE MALENO HUERTA,
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Defendant.
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[ECF No. 47]

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Pending before the Court is a motion in limine filed by Defendant Jorge

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Maleno Huerta (“Deputy Huerta”) to exclude or limit the testimony of Plaintiff’s

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expert Roger Clark. (ECF No. 47.) Plaintiff Alma Godinez (“Godinez”) has

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responded in opposition to that motion. (ECF No. 68.) For the reasons herein, the

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Court grants in part and denies in part Defendant’s motion to exclude or limit the

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testimony of Roger Clark.

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I.

BACKGROUND

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This case arises from events which occurred on February 2, 2015, during which

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Deputy Huerta responded to a call at Godinez’s home. Kevin Thornton told Deputy

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Huerta that he had an argument with his girlfriend, Godinez, and that he needed to

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retrieve his belongings from the residence, including the keys to his truck. After

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knocking on the front door and receiving no response, Deputy Huerta and Thornton

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went to the back of the residence and Thornton forced his way through the door of
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the residence. Godinez was behind the door and fell to the ground. The parties

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dispute the events that occurred thereafter. Deputy Huerta claims that Godinez got

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off the floor and raised the bat, in a fighting stance. He claims that he drew his Taser

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and demanded she drop the bat, she started a swinging motion and, in response, he

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fired the Taser, causing her to drop the bat. When she refused to drop to the ground,

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Deputy Huerta used the Taser again in “drive-stun mode.” Godinez, however, states

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that she remained on the floor and did not stand up or grab the bat. She states that

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she was “crab-walking” backwards when Deputy Huerta fired the Taser. Godinez

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was subsequently arrested and charged with (1) resisting or obstruction a police

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officer under California Penal Code §148(a)(1), and (2) assault on a peace officer

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with a deadly weapon, other than a firearm, by means likely to produce great bodily

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injury, pursuant to California Penal Code §245(c).

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Godinez brought claims against Deputy Huerta and another officer, Deputy

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Angela Lopez, under: (1) 42 U.S.C. §1983 based on unlawful entry; (2) 42 U.S.C.

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§1983 based on an illegal search; (3) 42 U.S.C. §1983 based on excessive force; (4)

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42 U.S.C. §1983 based on wrongful arrest; (5) 42 U.S.C. §1983 based on wrongful

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detention; (6) Cal. Civ. Code §52.1 based on unlawful entry, illegal search, excessive

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force, wrongful arrest and detention; and (7) 42 U.S.C. §1983 based on malicious

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prosecution. (ECF No. 1.) In its November 16, 2017 Summary Judgment Order, the

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Court dismissed all claims against Deputy Lopez and determined that Deputy Huerta

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was entitled to qualified immunity with respect to Godinez’s claim for unlawful

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entry. (ECF No. 39.) All other claims against Deputy Huerta remain for trial.

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On January 29, 2018, both parties filed various motions in limine. (ECF Nos.

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46–50.) Among those motions was the instant motion to exclude or limit the

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testimony of Plaintiff’s expert Roger Clark, who submitted a written expert report.

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(ECF No. 47-1 Ex. A (“Clark Report”).) Plaintiff moved to strike the motion as

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untimely (ECF No. 51), which the Court denied and ordered Plaintiff to respond (ECF

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No. 64). The Court ruled on all other motions in limine during a bench hearing on
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February 20, 2018. (ECF No. 65.) Jury trial in this case is currently scheduled for

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June 12, 2018. (ECF No. 67.) The Court now rules on the merits of Defendant’s

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motion in limine regarding Mr. Clark’s expert opinion and testimony.

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II.

LEGAL STANDARDS

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A party may use a motion in limine to exclude inadmissible or prejudicial

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evidence before it is introduced at trial. Luce v. United States, 469 U.S. 38, 40 n.2

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(1984). The motion is an important tool available to the trial judge to ensure the

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expeditious and evenhanded management of the trial proceedings. See Jonasson v.

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Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). By resolving

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the motion, potentially prejudicial evidence may be prevented from being presented

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to the jury, therefore avoiding the need for the trial judge to attempt to neutralize the

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taint of prejudicial evidence. See Brodit v. Cambra, 350 F.3d 985, 1004–05 (9th Cir.

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2003). A motion in limine may be used to exclude or limit an expert’s testimony.

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“[I]t is the proponent of the expert who has the burden of proving admissibility.” Lust

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v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996). Admissibility of the

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expert’s proposed testimony must be established by a preponderance of the evidence.

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Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592 n.10 (1993) (citing FED. R. EVID.

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104(a) and Bourjaily v. United States, 483 U.S. 171, 175–76 (1987)).

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Rule 702 supplies the general standard applicable to admission of expert

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testimony. Under the Rule, “[a] witness who is qualified as an expert by knowledge,

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skill, experience, training, or education may testify in the form of an opinion or

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otherwise . . .” FED. R. EVID. 702. The Rule, however, imposes four constraints.

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First, “the expert’s scientific, technical, or other specialized knowledge” must “help

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the trier of fact to understand the evidence or to determine a fact in issue.” Id. Second

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and third, the testimony must be “based on sufficient facts or data” and be “the

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product of reliable principles and methods.” Id. Fourth, the expert must have

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“reliably applied the principles and methods to the facts of the case.” Id. Through

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each of its requirements for the admissibility of expert testimony, Rule 702 “assign[s]
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to the trial judge the task of ensuring that an expert’s testimony both rests on a

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reliance foundation, and is relevant to the task at hand.” Daubert, 509 U.S. at 597.

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The trial judge acts as a gatekeeper in discharging this task. The Court’s “gate-

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keeping” role extends to the reliability of non-scientific expert testimony. Kumho

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Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). “[A] district court’s inquiry

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into admissibility is a flexible one.” City of Pomona v. SQM N. Am. Corp., 750 F.3d

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1036, 1043 (9th Cir. 2014) (citing Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc.,

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738 F.3d 960, 969 (9th Cir. 2013)). “[E]xpert testimony is liberally admitted under

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the Federal Rules.” Daubert, 509 U.S. at 588 (noting that Rule 702 is part of the

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“liberal thrust of the Federal Rules and their general approach of relaxing the

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traditional barriers to opinion testimony”); see also FED. R. EVID. 702, Advisory

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Comm. Notes on Rules – 2000 Amendment (“[R]ejection of expert testimony is the

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exception rather than the rule.”).

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III.

DISCUSSION

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Defendant seeks to exclude or limit Mr. Clark’s expert testimony on various

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grounds. First, Defendant challenges the reliability of Mr. Clark’s opinions generally

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and takes issue on whether certain opinions are based on sufficient facts or data.

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Second, Defendants raises relevancy challenges, including that Mr. Clark offers legal

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conclusions, offers impermissible opinions on witness credibility and the

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Defendant’s subjective knowledge during the events, and proffers opinions on

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matters no longer relevant to the issues for trial. Lastly, Defendant seeks to preclude

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Mr. Clark from proffering at trial new opinions not contained in his written expert

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report, based on Federal Rules of Civil Procedure 26 and 37. The Court addresses

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each ground.
Reliability of Mr. Clark’s Expert Opinion

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A.

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Defendant asserts a general objection to Mr. Clark’s expert testimony on the

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ground that he does not rely on “professional studies” that support his opinions in any

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objectively verifiable manner, but rather relies on “generalized professional
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principles.” (ECF No. 47 at 6–7.) Plaintiff responds that Mr. Clark’s expert

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testimony is not testimony which must conform to Daubert requirements for

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scientific expertise. (ECF No. 68 at 2–3.)

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assessment of Mr. Clark’s expert testimony as a general matter, subject to the Court’s

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determinations regarding Defendant’s specific challenges.

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The Court agrees with Plaintiff’s

Police Practices and Training Standards

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Rule 702 recognizes that “[t]he measure of intellectual rigor [required] will

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vary by the field of expertise and the way of demonstrating expertise will also vary.”

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Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996). In the context of

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“the reliability of non-scientific testimony,” such as expert testimony on police

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practices and use of force, “the Daubert factors (peer review, publications, potential

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error rate, etc.) simply are not applicable” because “reliability depends heavily on the

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knowledge and experience of the expert, rather than the methodology or theory

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behind it.” Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th

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Cir. 2004) (citations omitted); Lopez v. Chula Vista Police Dep’t, No. 07-cv-1272-

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WQH-BLM, 2010 WL 685014, at *1 (S.D. Cal. Feb. 18, 2010).

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Expert testimony on police practices and the use of force has generally been

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found to be admissible in cases concerning police misconduct, including when the

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expert’s opinion is based on his experience as a police officer or experience with

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police training standards and policies. See, e.g., Smith v. City of Hemet, 394 F.3d

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689, 703 (9th Cir. 2005) (en banc) (expert submitted report regarding training of

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police dogs and police dog handlers, relying on California’s Peace Officer Standards

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and Training); Davis v. Mason Cty., 927 F.2d 1473, 1484-85 (9th Cir. 1991)

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(testimony of plaintiffs’ police practices expert that officer violated law enforcement

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standards properly received); Larez v. City of Los Angeles, 946 F.2d 630, 635, 647

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(9th Cir. 1991); Baldauf v. Davidonson, No. 1:04-cv-1571-JDT-TAB, 2007 WL

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2156065, at *5 (S.D. Ind. July 24, 2007) (stating that “[k]nowledge about police

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training is a specialized body of knowledge” and “[a] police officer’s testimony about
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that training can be helpful even when the testimony covers matters that are within

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the average juror’s comprehension” (citing Lawson v. Trowbridge, 153 F.3d 368, 376

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(7th Cir. 1998) (internal quotations omitted)).

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Here, the “general professional principles” Defendant contends make Mr.

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Clark’s testimony generally unreliable are in fact his experience regarding police

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training standards and policies. Mr. Clark is a twenty-seven-year veteran of the Los

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Angeles County Sheriff’s Department, who retired in 1993 holding a California

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Peace Officer Standards and Training (“POST”) Advanced Certificate and having

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graduated the POST Command College. (Clark Report at 19.) This experience has

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led other courts to find that Mr. Clark is qualified as an expert in police training

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standards and policies. See, e.g., Day v. Cty. of Contra Costa, No. C 07-4335 PJH,

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2008 WL 4858472, at *20 (N.D. Cal. Nov. 10, 2008) (“Mr. Clark’s CV and Rule 26

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report establish that he is generally qualified to testify as to police procedures. The

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court does not find the lack of published books or other materials to be significant.”);

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Baldauf, 2007 WL 2156065, at *6. The Court similarly finds that Mr. Clark’s

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experience as a police officer and with police practices and training qualifies him as

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an expert in such matters.
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Opinion Regarding Tasers

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Defendant raises specific challenges to the reliability of Mr. Clark’s testimony

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regarding the use of Tasers on the ground he “has no specialized knowledge of Tasers

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and never had personal experience using tasers in his career as a law enforcement

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officer.” (ECF No. 47 at 7.) Defendant also claims that Mr. Clark’s opinion that

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Deputy Huerta’s use of a Taser violated San Diego County Sheriff’s Department

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policies lacks foundation. (Id. at 8.) The Court agrees in part with Defendant’s

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challenge.

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Mr. Clark’s written report provides general information regarding Tasers,

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including its development, subsequent models, and its uses. (Clark Report at 17–18.)

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Mr. Clark states that “[s]ince my retirement, I have become an expert in the features
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and the use of TASER International’s products, including the Model M26, Model

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X26 and Model X2 ECDS.” (Id. at 25.) Mr. Clark “own[s] each, along with the

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download software,” and he has “reviewed all the TASER training materials and [is]

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familiar with the risks and tactics associated with these potentially lethal devices.”

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(Id.) As other courts have determined specifically with respect to Mr. Clark, these

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facts “do[] not render him ‘an expert in the features and use of TASER International’s

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products’. . .” Valtierra v. City of Los Angeles, 99 F. Supp. 3d 1190, 1197 (C.D. Cal.

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2015) (quoting Barber v. City of Santa Rosa, No. C-08-5649 MMC, 2010 WL

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5069868, at *8 (N.D. Cal. Dec. 7, 2010)). To the extent Mr. Clark seeks to offer

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testimony as a purported expert on Tasers, he is precluded from doing so.

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However, to the extent Mr. Clark’s testimony regarding Tasers is premised on

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his experience concerning police training standards and policies, he may opine on

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those issues, subject to the limitations set forth in this Order. See, e.g., Valtierra, 99

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F. Supp. 3d at 1197 (“Clark may opine on whether tasers may cause bodily injury

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and when taser deployment is an appropriate use of force—but only to the extent that

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such testimony is based on Clark’s expertise in POST and other law enforcement

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standards.”).

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Department’s policies regarding Taser use.1

This includes testimony regarding the San Diego Sheriff’s

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Concession to Exclude Certain Opinions

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Defendant also raises specific challenges to the reliability of Mr. Clark’s

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opinions regarding that (1) the alleged failure of the San Diego County Sheriff’s

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Department to investigate Deputy Huerta’s use of force constituted a failure of policy

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and (2) the Department allegedly endorsed Deputy Huerta’s conduct. (ECF No. 47

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at 8–9 (citing Clark Report, Opinions 13–14).) Defendant contends that the first

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Contrary to Defendant’s argument (ECF No. 47 at 8), Mr. Clark’s expert
report indicates that he reviewed the San Diego County Sheriff’s Department policies
and procedures manual. (Clark Report at 2.) The report cites specific policies and
procedures on which he bases certain conclusions. (Id.) Mr. Clark thus has a proper
foundation on which to premise his opinions.
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opinion is unsupported because Mr. Clark’s report does not cite any San Diego

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Sheriff’s Office policies and the second opinion is conclusory. (Id.) In response to

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Defendant’s motion, Plaintiff states that “because [she] is not pursuing a Monell

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claim, she will not adduce testimony from Mr. Clark” on these issues and “thus this

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aspect of Defendant’s motion is moot.” (ECF No. 68 at 8 n.4.) Given this concession,

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the Court grants Defendant’s motion to exclude testimony on these issues. Mr. Clark

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shall not offer testimony regarding the Department’s alleged failure to investigate

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and alleged endorsement of the incident.

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B.

Relevance

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“Encompassed in the determination of whether expert testimony is relevant is

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whether it is helpful to the jury, which is the ‘central concern’ of Rule 702.” Mukhtar

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v. Cal. State Univ., Hayward, 299 F.3d 1053, 1066 n.7 (9th Cir. 2002); see also

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United States v. Gwaltney, 790 F.2d 1378, 1381 (9th Cir. 1986) (“The general test

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regarding the admissibility of expert testimony is whether the jury can receive

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‘appreciable help’ from such testimony.”). Defendant challenges various aspects of

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Mr. Clark’s opinions, which pertain to its relevance in the context of expert opinions

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generally, i.e. whether the testimony comports with the proper role of such testimony

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as an aid to the jury, rather than subsuming the jury’s role. Defendant also raises a

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relevancy challenge specific to the issues remaining for trial. The Court addresses

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these concerns.

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1.

Opinions Regarding Conclusions of Law

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Defendant seeks generally to exclude Mr. Clark’s opinions to the extent they

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are legal conclusions. (ECF No. 47 at 10.) The Court agrees that several of Mr.

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Clark’s opinions in his written report constitute legal conclusions and must be

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excluded.

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As a general rule, “testimony in the form of an opinion or inference otherwise

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admissible is not objectionable because it embraces an ultimate issue to be decided

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by the trier of fact.” FED. R. EVID. 704. Nevertheless, “an expert witness cannot give
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an opinion as to [his] legal conclusion, which is effectively an opinion on an ultimate

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issue of law.” Hangarter, 373 F.3d at 1016 (emphasis in original). Such conclusions

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are generally not helpful to the trier of fact. Valtierra, 99 F. Supp. 3d at 1198.

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Moreover, an expert’s “opinion as to what ‘current law’ ‘mandates’ or whether

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defendants were ‘legally’ ‘justified’ in using the force applied against [the plaintiff]

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usurps the jury’s role.” Taylor v. Lemus, No. CV 11-9614 FMO (SSx), 2015 WL

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12698306, at *6 (C.D. Cal. June 17, 2015) (citing Sloman v. Tadlock, 21 F.3d 1462,

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1468 (9th Cir. 1994)). Here, Mr. Clark opines that “[Defendant’s] use of the Taser

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violated Ms. Godinez’s clearly established legal right to remain in her residence

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without fear of law enforcement, intrusion, assault and battery.” (Clark Report

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Opinion 10.) This is not a permissible expert opinion because it is a legal conclusion

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and Mr. Clark may not offer it at trial. See Day, 2008 WL 4858472, at *23; see also

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Shannon v. Koehler, No. C 08-4059-MWB, 2011 WL 10483363, at *29 (N.D. Iowa

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Sept. 16, 2011) (“A court should exclude an expert’s testimony if it instructs the jury

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on the law, as the court alone defines the law for the jury.”).

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Several of Mr. Clark’s opinions also employ judicially defined or legally

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specialized terms in expressing opinions related to the issue of excessive force. For

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example, Mr. Clark refers to the use of a Taser as “extreme force,” states that “there

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was no cause for Deputy Huerta to draw his taser weapon,” and opines that the use

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of force by Deputy Huerta was a “gross violation” of “law.” (Clark Report Opinions

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8, 9, 11.) Courts bar experts from using judicially defined or legally specialized

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terms. See, e.g., Rascon v. Brookins, No. CV-14-00749-PHX-JJT, 2018 WL 739696,

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at *4 (D. Ariz. Feb. 7, 2018) (cautioning that “[Mr. Clark] should not volunteer an

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opinion that the officers acted unconstitutionally or exercised excessive force. Legal

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opinions or conclusions are excluded from Clark’s testimony”); Cooke v. City of

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Stockton, No. 2:14-CV-00908-KJM-KJN, 2017 WL 6447999, at *5 (E.D. Cal. Dec.

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18, 2017); Monroe v. Griffin, No. 14-CV-00795-WHO, 2015 WL 5258115, at *6–7

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(N.D. Cal. Sept. 9, 2015) (excluding expert from using terms such as “grossly
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unlawful, unnecessary, and excessive violence”); Valtierra, 99 F. Supp. 3d at 1198

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(excluding Mr. Clark’s expert testimony that “the use of force was ‘excessive’ or

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‘unreasonable,’ under the circumstances,” but allowing expert’s opinions to “be

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explored through hypothetical questioning so as to avoid invading the province of the

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jury”); Tubar v. Clift, No. C05-1154-JCC, 2009 WL 1325952, at *3 (W.D. Wash.

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May 12, 2009) (precluding expert opinion testimony from police practices expert

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from expressing opinions in terms of whether officer had “probable cause,” whether

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officer acted “unconstitutionally”, and whether deadly force was “objectively

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reasonable”). Mr. Clark is not permitted to express any of his opinions at trial using

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judicially defined or legally specialized terms.

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However, as Plaintiff observes in response to Defendant’s motion in limine

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(ECF No. 68 at 9), Mr. Clark can permissibly testify about whether Deputy Huerta’s

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conduct comported with applicable procedures and policies on the day of the

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incident, which does not constitute a legal opinion or conclusion.2 See Smith, 394

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F.3d at 703 (citing expert testimony on “whether the officers’ conduct comported

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with law enforcement standards, . . . rel[ying] upon California’s Peace Officer

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Standards and Training”); Cooke, 2017 WL 6447999, at *5 (“Clark may within the

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scope of his expertise opine as to whether defendants complied with applicable

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Plaintiff contends that what police policies and training require is “consistent
with the law relating to use of force.” (ECF No. 68 at 8.) This contention is
unavailing. Legal conclusions couched in the guise of “training” remain
impermissible legal conclusions that Mr. Clark may not offer. See Molina v. City of
Visalia, No. 1:13-cv-01991-DAD-SAB, 2016 WL 8730723, at *6 n.1 (E.D. Cal. Sep.
16, 2016) (precluding Mr. Clark from testifying that “use of lethal force was unlawful
under the circumstances (as taught by POST)”); Carr v. Montgomery Cty., No. H13-2795, 2015 WL 5838862, at *8 (S.D. Tex. Oct. 7, 2015) (precluding Mr. Clark
from testifying that “[o]fficers are trained and are expected to know that there was
no law enforcement reason to have either the cameraman with camera or the
newspaper reporter in Ms. Perla Carr’s residence and such actions were
unreasonable.”).
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procedures on the night of the incident”); Molina v. City of Visalia, No. 1:13-cv-

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01991-DAD-SAB, 2016 WL 8730723, at *6 (E.D. Cal. Sep. 16, 2016) (“[P]laintiffs’

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expert will be allowed to express an opinion on whether the officers’ conduct, after

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they got out of their vehicle, was consistent with POST and constituted part of the

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totality of circumstances that led to their use of deadly force.”). Consistent with the

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limitation on not offering legal conclusions, Mr. Clark “may testify as to the forceful

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alternatives [the defendant] had available and what reasonably well-trained officers

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are taught regarding when they may use force.” See, e.g., Colbert v. Cty. of Kern,

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No. 1:13-cv-01589-JLT, 2015 WL 8214204, at *2 (E.D. Cal. Dec. 8, 2015) (but

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precluding Mr. Clark from “testify[ing] that using the taser in the circumstances

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confronting [the defendant] was excessive or unreasonable or the like.”). Mr. Clark,

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however, is limited to responding to hypothetical situations posed to him. 3
2.

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Witness Credibility

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Credibility is a matter that a jury must decide, not an expert witness. United

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States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987). An expert witness is not

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permitted to testify about a witness’ credibility or to testify in such a manner as to

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improperly buttress a witness’ credibility. See United States v. Candoli, 870 F.2d

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496, 506 (9th Cir. 1989). Defendant asserts that Mr. Clark impermissibly makes

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determinations about witness credibility in his written expert report. (ECF No. 47 at

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12–14.) The Court agrees.

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3

The parties dispute the relevance of hypotheticals regarding tactics Deputy
Huerta could have used. (Contrast ECF No. 47 at 9–10 with ECF No. 68 at 9.) The
law is clear that “[w]hile police officers need not employ the least intrusive degree
of force possible during an arrest, they must at least consider less intrusive methods,
and the presence of feasible alternatives is a relevant consideration in an excessive
force analysis.” Bryan v. MacPherson, 630 F.3d 805, 831 n.15 (9th Cir. 2010); see
also Kanda v. Longo, 484 Fed. App’x 103, 104 (9th Cir. 2012). Expert testimony,
particularly from an expert in police practices and training, may assist the trier of fact
in considering whether there were “feasible alternatives” to the force Deputy Huerta
used.
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In his written report, Mr. Clark opines that “[t]aking Ms. Godinez’s set of facts

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as true, then Deputy Huerta filed a false report in violation of policy, training and law

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as stated below (and as taught by POST).” (Clark Report, Opinion 12.) Mr. Clark’s

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report contains other material similarly suggesting that Defendant filed a false police

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report and, thus, impermissibly makes credibility determinations. (Clark Report at

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16 (stating that differences in the “facts proffered” “cannot be reconciled by mistakes

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in perception or intent,” “there can be only one set of true facts” and that “[o]fficers

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are trained that filing a false police report is ethically wrong and can rise to the level

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of criminal conduct”).)

These opinions make impermissible credibility

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determinations by weighing evidence and drawing inferences, tasks suited to a jury

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and for which Mr. Clark’s expertise is not necessary. Other courts have excluded

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substantially similar opinions offered by Mr. Clark in other cases involving police

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misconduct. See, e.g., Cooke, 2017 WL 6447999, at *6 (opining that “[t]aking the

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autopsy as true,” officer struck plaintiff’s husband in the back of the head and the

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officer” submitted a false police report in violation of SPD policy, POST training and

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the Law. . .”). This Court similarly precludes Mr. Clark from offering such opinions

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at trial.

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3.

Opinions Regarding Subjective Knowledge

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It is inappropriate for an expert to attempt to intuit a party’s subjective

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knowledge or “create a question of fact as to what [the party] actually knew.” Cotton

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v. City of Eureka, No. C 08-04386 SBA, 2011 WL 4047490, at *2 (N.D. Cal. Sep. 8,

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2011) (quoting Gobert v. Caldwell, 463 F.3d 339, 348 n.29 (5th Cir. 2006)).

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Defendant seeks to exclude Mr. Clark’s opinions to the extent they concern

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Defendant’s subjective knowledge or state of mind. (ECF No. 47 at 11.) Mr. Clark

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opines that Deputy Huerta’s “actions appear to be deliberately reckless and not

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accidental” and that “[t]here was no basis to believe that Ms. Godinez would attack .

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. .” (Clark Report Opinions 3, 10.) Courts have precluded Mr. Clark from offering

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such opinions as impermissible “legal conclusions” and “speculative factual
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conclusions,” which are the province of the jury. See, e.g., Valiavicharska v. Celaya,

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No. CV 10-4847 JSC, 2012 U.S. Dist. LEXIS 8191, at *14 (N.D. Cal. Jan. 24, 2012)

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(precluding Mr. Clark from “speculat[ing] about what anyone thought or the reasons

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behind their actions . . .”); Cotton, 2011 WL 4047490, at *2 (precluding Mr. Clark

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from offering testimony that defendants’ conduct was “intentional, reckless, and

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dangerous”, that their actions “reflected a callous disregard”, and that they “have no

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legitimate claim that they did not, or could not know” of plaintiff’s alleged injuries).

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This Court similarly views Mr. Clark’s opinions on these matters as impermissible.

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Mr. Clark is precluded from offering testimony regarding Deputy Huerta’s subjective

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knowledge or state of mind.

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4.

Opinions on Matters Already Adjudicated

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Defendant seeks to exclude Mr. Clark’s opinions and testimony to the extent

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they concern matters already adjudicated by the Court in its Summary Judgment

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Order, including matters regarding the legality of Deputy Huerta’s entry into

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Plaintiff’s residence and Mr. Thornton’s residency and tenancy. (ECF No. 47 at 4–

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5.) Defendant asserts that any opinions on these matters would be irrelevant,

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prejudicial, and confusing because the Court already ruled that he cannot be liable

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for unlawful entry.

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Under Rule 402, “irrelevant evidence is not admissible.” FED. R. EVID. 402.

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Rule 403 also permits a court to “exclude relevant evidence if its probative value is

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substantially outweighed by a danger of . . . unfair prejudice” or “confusing the

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issues.” FED. R. EVID. 403. The Court previously dismissed Godinez’s claim against

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Deputy Huerta for unlawful entry on the ground that, based on the facts, Huerta was

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entitled to qualified immunity on that claim. (ECF No. 39 at 14.) Because Godinez’s

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corresponding claim was disposed of on summary judgment, testimony concerning

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unlawful entry is no longer relevant to this case and is, therefore, inadmissible. See,

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e.g., Lopez, 2010 WL 685014, at *5 (granting motion in limine to exclude Mr. Clark’s

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testimony “with respect to testimony about claims which were dismissed in the
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Court’s summary judgment order”); Baldauf, 2007 WL 2156065, at *6 (finding that

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Mr. Clark’s testimony would not assist the jury “to the extent that the Summary

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Judgment Entry disposed of many of the issues relevant to Clark’s proposed

4

testimony”); see also Daubert, 509 U.S. at 591 (“[e]xpert testimony which does not

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relate to any issue in the case is not relevant and, ergo, non-helpful”). Such testimony

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includes Opinions 1 through 4 in their entirety and portions of Opinions 5and 8. 4

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Accordingly, the Court grants Defendant’s request to preclude Mr. Clark from

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providing expert opinions or testimony on Mr. Thornton’s tenancy and residency as

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well as the legality of Defendant Huerta’s entry into Plaintiff’s residence. Mr. Clark

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must not offer opinions or testimony on any of these issues at trial.

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C.

Preclusion of Offering New Opinions at Trial

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Lastly, Defendant seeks to preclude Mr. Clark from offering any “new”

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opinions at trial beyond the fourteen numbered opinions set forth in his expert report.

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(ECF No. 47 at 3.) Plaintiff disclosed Mr. Clark as a retained expert witness and

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provided a written report to Defendant of Mr. Clark’s expert opinion. (ECF No. 47-

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1.) Mr. Clark qualified the fourteen enumerated opinions in his written report as

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“[o]pinions thus far.” (Id. at 10.) Defendant seizes on this language of the report to

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suggest that Mr. Clark may offer expert opinions not set forth in the report. The

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pretrial disclosures were due on November 13, 2017. (ECF No. 20.) There is no

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indication that Plaintiff ever supplemented her written expert report with additional

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Mr. Clark may not testify as the following portion of Opinion 5: “[t]he facts
of this incident document that Deputy Huerta . . . entered Ms. Godinez’s residence
without lawful authority. Accordingly, his use of force, and arrest of Ms. Godinez
occurred absent lawful authority.” (Clark Report Opinion 5.) Mr. Clark also may
not testify as to the following portion of Opinion 8: “Assuming all of the facts as
proffered by Ms. Godinez to be true, then Deput[y] Huerta . . . violated policy and
Ms. Godinez’s civil rights when they entered Ms. Godinez’s residence without a
warrant or exigency.” (Id. Opinion 8.) Both of these excerpts are precluded by the
Court’s Summary Judgment Order and, moreover, constitute impermissible legal
conclusions.
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opinions. Defendant therefore points to both Rules 26 and 37 as necessitating a

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prophylactic blanket exclusion of unidentified new opinions Mr. Clark might offer.

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The Court denies Defendants’ request.

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Under Rule 26(a)(2), an expert witness disclosed by a party is required to

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submit a written report if that witness is retained or specifically employed to provide

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expert testimony in the case. FED. R. CIV. P. 26(a)(2)(B). The report is required to

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contain “a complete statement of all opinions the witness will express and the basis

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and reasons for them.” FED. R. CIV. P. 26(a)(2)(B)(i). A party relying on an expert

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witness is required to supplement its expert report “when required under Rule 26(e).”

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FED. R. CIV. P. 26(a)(2)(E). That rule in turn requires that a party supplement a

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written expert report, including “[a]ny additions or changes” “by the time the party’s

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pretrial disclosures under Rule 26(a)(3) are due.” FED. R. CIV. P. 26(e). Rule 37

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gives teeth to these disclosure requirements, by precluding a party from using at trial

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information it failed to disclose under Rule 26(a) or (e), unless the failure was

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substantially justified or is harmless. FED. R. CIV. P. 37(c).

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Whether Rule 37 requires exclusion, however, depends on the circumstances.

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Under the Federal Rules, “[t]he purpose of these [expert] reports is not to replicate

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every word that the expert might say on the stand. It is instead to convey the

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substance of the expert’s opinion . . . so that the opponent will be ready to rebut, to

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cross-examine, and to offer a competing expert if necessary.” Metavante Corp. v.

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Emigrant Savings Bank, 619 F.3d 748, 762 (7th Cir. Aug. 30, 2010) (quoting Walsh

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v. Chez, 583 F.3d 990, 994 (7th Cir. 2009)). The Federal Rules “‘do[] not limit an

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expert’s testimony simply to reading his report . . . . The rule[s] contemplate that the

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expert will supplement, elaborate upon, [and] explain his report’ in his oral

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testimony.” Muldrow v. Re-Direct, Inc., 493 F.3d 160, 167, 168 (D.C. Cir. 2007)

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(quoting Thompson v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir. 2006)).

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Thus, so long as an expert’s opinion or analysis “do[es] not differ substantially from

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opinions offered in the expert report, they are not late for purposes for 26(a) and so
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are not subject to Rule 37 preclusion.” Bone Care Int’l, LLC v. Pentech Pharms.,

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Inc., No. 08-cv-1083, 2010 WL 3894444, at *13 (N.D. Ill. Sept. 30, 2010) (citing

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Rowe Int’l Corp. v. Ecast, Inc., 586 F. Supp. 2d 924, 935 (N.D. Ill. 2008)).

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Here, Defendant does not point to any specific opinion that Mr. Clark is likely

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to offer at trial not already contained in his written expert report, or provide

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information that would suggest Mr. Clark will do so. The Court therefore cannot

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assess whether it differs “substantially” in substance from Mr. Clark’s written report.

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While the Court is mindful of Defendant’s concern, it is not enough to warrant

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blanket preclusion. See, e.g., Morgutia-Johnson v. Hustedde, No. 1:14-CV-00127-

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LJO-SKO, 2015 WL 3507130, at *6 (E.D. Cal. June 3, 2015) (denying motion to

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exclude all evidence, prior testimony and information not properly disclosed “for lack

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of specificity”). Furthermore, Rule 37 may permit the admission of an opinion not

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previously disclosed if the nondisclosure is harmless of substantially justified.5

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Although Plaintiff ultimately may not be able to show either6, the Court cannot make

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such a determination at this time. Accordingly, the Court denies Defendant’s request

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without prejudice to Defendant’s ability to raise it at trial, as appropriate.

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IV.

CONCLUSION & ORDER

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5

Factors courts consider in determining whether a failure to timely disclose
was substantially “justified or harmless are: (1) prejudice or surprise to the party
against whom the evidence is offered; (2) the ability of that party to cure the
prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness
involved in not timely disclosing the evidence.” Durham v. Cty. of Maui, No. 0800342, JMS/RLP2011 WL 2532690, at *4 (D. Haw. June 23, 2011) (quoting Lanard
Toys Ltd. v. Novelty, Inc., 375 Fed. Appx. 705, 713 (9th Cir. 2010); Transbay Auto
Serv., Inc. v. Chevron U.S.A. Inc., No. C 09-04932 SI, 2010 WL 4591596, at *7 (N.D.
Cal., Nov. 3, 2010).
Plaintiff will have the burden to show substantial justification or
harmlessness. See Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817,
827 (9th Cir. 2011), superseded by statute on other grounds as recognized in Dixon
v. Legacy Transp. Sys., LLC, No. 2:15-cv-01359-JAD-PAL, 2017 WL 4004412, at
*7–8 (D. Nev. Sept. 11, 2017).
6

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For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN

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PART Defendant’s motion in limine to exclude or preclude the testimony of Roger

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Clark. (ECF No. 47.) Any opinions Mr. Clark offers at trial shall conform to this

4

Order.

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Defendant is also advised that his police practices expert, Jeffrey Martin, is

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equally subject to certain limitations identified in this Order, including: not providing

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opinions on subjective state of mind, making impermissible credibility

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determinations, offering legal conclusions, or opining on matters no longer relevant

9

to the issues in this case.

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IT IS SO ORDERED.
DATED: May 1, 2018

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