H., et al v. Lemahieu, et al

Filing 601

ORDER REGARDING THE PARTIES' MOTIONS IN LIMINE AND DEFENDANTS MOTION REGARDING JURY INSTRUCTIONS: Defendants' 575 , 576 and 577 Motions in Limine - GRANTED; Defendants' 578 Jury Instructions Motion - DENIED WITHOUT PREJUDICE; Pl aintiffs' 580 , 581 , 582 , 583 and 584 Motions in Limine - GRANTED IN PART. Signed by JUDGE LESLIE E. KOBAYASHI on August 14, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electro nic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARK H. and RIE H.
Individually and as Guardians
Ad Litem of MICHELLE H. and
NATALIE H., minors,

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Plaintiffs,
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vs.
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PATRICIA HAMAMOTO, in her
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official capacity of
Superintendent of the Hawaii )
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Department of Education,
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State of Hawaii ,
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Defendants.
_____________________________ )

CIVIL 00-00282 LEK-RLP

ORDER REGARDING THE PARTIES’ MOTIONS IN LIMINE
AND DEFENDANTS MOTION REGARDING JURY INSTRUCTIONS
On July 16, 2012, Defendants Patricia Hamamoto, in her
official capacity, the Hawaii Department of Education (“DOE”),
and the State of Hawai`i (collectively “Defendants”) filed three
motions in limine, [dkt. nos. 575, 576, 577,] and Plaintiffs
Mark H. and Rie H., individually and as Guardians Ad Litem of
Michelle H. and Natalie H., minors, filed five motions in limine
[dkt. nos. 580, 581, 582, 583, 584].

Also on July 16, 2012,

Plaintiffs filed their Omnibus Memorandum in Support of
Plaintiffs’ Proposed Jury Instructions and Motions in Limine
(“Omnibus Memorandum”).

[Dkt. no. 579.]

In addition, Defendants

filed their Motion Regarding Proposed Jury Instructions (“Jury
Instructions Motion”) on July 16, 2012.

[Dkt. no. 578.]

On July 31, 2012, Plaintiffs filed their memoranda in
opposition to Defendants’ motions in limine, [dkt. nos. 590-93,]
as well as their memorandum in opposition to the Jury
Instructions Motion [dkt. no. 589].

Also on July 31, 2012,

Defendants filed their memoranda in opposition to Plaintiffs’
motions in limine, [dkt. nos. 594-98,] as well as their response
to Plaintiffs’ Omnibus Memorandum [dkt. no. 593].
These matters came on for hearing on August 9, 2012.
Appearing on behalf of Defendants were John-Anderson Meyer, Esq.,
and, by telephone, Kenneth Robbins, Esq.

Appearing on behalf of

Plaintiffs were Michael Livingston, Esq., and Stanley Levin, Esq.
After careful consideration of the motions in limine, supporting
and opposing memoranda, and the arguments of counsel, this Court
HEREBY rules as follows:
1.

Plaintiffs’ Motion in Limine #1 to Preclude Hawaii DOE from
Introducing Evidence or Arguing to the Jury that a
Subjective Standard Applies to the Determination of
Deliberate Indifference (“Plaintiffs’ MIL #1”). [Dkt. no.
580.]
Plaintiffs’ MIL #1 is GRANTED IN PART, insofar as this Court

rules that Defendants are precluded from presenting any evidence
regarding individual DOE employees’ “good faith” beliefs and
testimony that the individual DOE employees had Michelle H.’s and
Natalie H.’s (collectively “Students”) best interests at heart.
The Court DENIES Plaintiffs’ MIL #1 in all other respects.

The

Court agrees that, in evaluating what the DOE did to investigate
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whether there were services available for Students, the Court
must apply an objective standard.

The Court, however, FINDS that

evidence about the specific efforts the individual DOE employees
made and evidence about the teachers’ basic background are
relevant to the objective inquiry.
Further, the Court notes that the portion of
Plaintiffs’ MIL #1 asking the Court to adopt Plaintiffs’ proposed
jury instruction on this issue is DENIED WITHOUT PREJUDICE.

When

the jury instructions are being settled, the Court will determine
whether the Court will or will not give Plaintiffs’ proposed jury
instruction.
2.

Plaintiffs’ Motion in Limine #2 to Preclude Hawaii DOE from
Introducing Evidence or Making Arguments to the Jury that
Are Contrary to or Inconsistent with the Factual Findings
that Have Been Conclusively Established in this Case
(“Plaintiffs’ MIL #2”). [Dkt. no. 581.]
Plaintiffs’ MIL #2 is GRANTED IN PART insofar as the

Court agrees that the eight factual findings identified in the
magistrate judge’s Order Granting Plaintiffs’ Motion to Preclude
Relitigation of Factual Issues Adjudicated in Administrative
Hearing, [filed 7/14/11 (dkt. no. 520),] have been affirmatively
proven and are established facts in the instant case.

To the

extent that Plaintiffs’ MIL #2 seeks to preclude evidence or
argument as to the services, if any, that Defendants provided to
Plaintiffs, and the investigation, if any, that Defendants
undertook to determine what services were available as a
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reasonable accommodation, Plaintiffs’ MIL #2 is DENIED IN PART
insofar as such evidence is relevant to the issue of deliberate
indifference.
3.

Plaintiffs’ Motion in Limine No.3 to Preclude Evidence,
Testimony, Argument, or Comment Related to the Excuse or
Defense of Lack of Funds or Trained Personnel (“Plaintiffs’
MIL #3”). [Dkt. no. 582.]
Plaintiffs’ MIL #3 is GRANTED IN PART insofar as the

Court rules that the parties are precluded from presenting any
testimony or evidence regarding cost, lack of funding, budgetary
constraints, and/or shortage of trained personnel because such
testimony and evidence are not relevant.

Further, even if they

were relevant, they are more prejudicial than probative, and are
likely to create jury confusion.

See Fed. R. Evid. 403;

Alexander v. Choate, 469 U.S. 287, 300 (1985) (“[W]hile a grantee
need not be required to make ‘fundamental’ or ‘substantial’
modifications to accommodate the handicapped, it may be required
to make ‘reasonable’ ones.” (citations omitted)).

Plaintiffs’

MIL #3 is DENIED IN PART insofar as the nothing in this Court’s
ruling on Plaintiffs’ MIL #3 precludes Defendants’ percipient
witnesses from testifying as to what they did during the relevant
time period and as to the reasons why they concluded that there
were no autism-specific services available for Students.

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4.

Plaintiffs’ Motion in Limine No. 4 to Preclude Evidence,
Testimony, Argument, or Comment Related to the “Good Faith,”
Generally Good Performance, and Character of Hawaii DOE
Employees (“Plaintiffs’ MIL #4”). [Dkt. no. 583.]
Plaintiffs’ MIL #4 is GRANTED IN PART because the Court has

already ruled that the applicable standard for deliberate
indifference is an objective standard.

The Court reiterates that

evidence regarding “good faith”, good character, sincerity, and
the like regarding individual DOE employees is irrelevant, and,
even if it was relevant, it is more prejudicial than probative,
and is likely to create jury confusion.

The Court therefore

CONCLUDES that Defendants are precluded from presenting such
evidence.

See Fed. R. Evid. 403.

Plaintiffs’ MIL #4 is DENIED

IN PART insofar as the Court will permit evidence regarding the
nature, extent and efforts made by Defendants through their
employees, as described in this Court’s ruling on Plaintiffs’ MIL
#1.
5.

Plaintiffs’ Motion in Limine No. 5 to Exclude Evidence,
Testimony, Argument and Comment Concerning the Amount of
Money Expended by the DOE (“Plaintiffs’ MIL #5”). [Dkt. no.
584.]
Plaintiffs’ MIL #5 is GRANTED IN PART insofar as the

Court rules that evidence and argument regarding the amount of
money expended by the DOE or the State of Hawai`i for services
for Students are not relevant to the issue of liability.
Further, even if they were relevant, they are more prejudicial
than probative, and are likely to create jury confusion.
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See

Rule 403.

Plaintiffs’ MIL #5 is DENIED WITHOUT PREJUDICE as to

the issue whether such evidence and argument is admissible as to
damages.
6.

Defendants’ Motion in Limine No. 1 to Preclude Testimony
Regarding Alleged Deficiencies in the Services Provided
After the 1994 Through 1999 Time Period (“Defendants’ MIL
#1). [Dkt. no. 575.]
Defendants’ MIL #1 is GRANTED.

The parties are

precluded from presenting any evidence regarding educational
services provided to Plaintiffs from 1999 to present as such
evidence is not relevant.

Further, even if it was relevant, it

is more prejudicial than probative, and is likely to create jury
confusion.
7.

See Rule 403.

Defendants’ Motion in Limine No. 2 to Exclude Opinion
Testimony Concerning Defendants’ Alleged Deliberate
Indifference (“Defendants’ MIL #2”). [Dkt. no. 576.]
Defendants’ MIL #2 is GRANTED.

The parties are

precluded from presenting any opinion testimony regarding whether
or not Defendants were deliberately indifferent.

See United

States v. Moran, 493 F.3d 1002, 1008 (9th Cir. 2007) (“an expert
witness cannot give an opinion as to her legal conclusion, i.e.,
an opinion on an ultimate issue of law” (citation and quotation
marks omitted)).

The Court, however, clarifies that a party’s

expert may testify as to his or her factual opinions, even where
the opinions embrace the ultimate issue.
704(a).

See Fed. R. Evid.

For example, assuming that the offering party lays the

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proper foundation, the expert may testify as to what Defendants
should have done and what would have been reasonable and expected
of an educational agency.
8.

Defendants’ Motion in Limine No. 3 to Exclude Any Testimony
by Plaintiffs’ Expert Witnesses Regarding Opinions Not
Disclosed in Their Reports or Depositions (“Defendants’ MIL
#3”). [Dkt. no. 577.]
Defendants’ MIL #3 is GRANTED.

The parties are

precluded from presenting testimony from any expert witness
regarding opinions that the party did not timely disclose in
expert reports, deposition or as otherwise required by Fed. R.
Civ. P. 26(a)(2).

The Court notes that Rule 26(a)(2)(E) requires

the parties to supplement their expert disclosures pursuant to
Rule 26(e).

The Court ORDERS the parties to meet and confer

regarding a deadline for the disclosure of supplemental expert
reports as to the issue of damages.
9.

Defendants’ Jury Instructions Motion.

[Dkt. no. 578.]

Finally, Defendants’ Jury Instructions Motion is HEREBY
DENIED WITHOUT PREJUDICE.

The Court ORDERS the parties to revise

their proposed special jury instructions in light of this Court’s
rulings on the motions in limine, and the Court ORDERS the
parties to meet and confer to try to reach an agreement regarding
joint proposed jury instructions.

The Court will schedule a

status conference to discuss any proposed instructions that the
parties are unable to agree upon.

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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 14, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

MARK H, ET AL. V. PATRICIA HAMAMOTO, ETC., ET AL; CIVIL NO. 0000282 LEK-RLP; ORDER REGARDING THE PARTIES’ MOTIONS IN LIMINE AND
DEFENDANTS’ MOTION REGARDING JURY INSTRUCTIONS

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