Estate of Sean Patrick O'Brien et al v. City of Livingston et al

Filing 110

ORDER granting 81 Motion in Limine; granting in part and denying in part 83 Motion in Limine; granting 83 Motion to Bifurcate. See order for complete details. Signed by Magistrate Judge Timothy J. Cavan on 6/7/2021. (HEG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
ESTATE OF SEAN PATRICK
O’BRIEN, ROBIN LARSON, and THE
ESTATE OF KEELIN O’BRIEN,
Plaintiffs,

CV 18-106-BLG-TJC
ORDER

vs.
CITY OF LIVINGSTON, a political
subdivision of the State of Montana,
KEVIN ENGLE, ANDREW
EMANUEL, DALE JOHNSON, and
JOHN DOES 1-10,
Defendants.
Plaintiffs, the Estate of Sean Patrick O’Brien, Robin Larson, and the Estate
of Keelin O’Brien (collectively, “Plaintiffs”), bring this action alleging claims
under 42 U.S.C. § 1983 and under Montana law for wrongful death and
survivorship after the decedent, Sean Patrick O’Brien (“O’Brien”) was shot and
killed by Livingston Police Officers Kevin Engle (“Engle”) and Andrew Emanuel
(“Emanuel”). The only causes of action remaining before the Court are Plaintiffs’
claims against the City of Livingston in Count III (negligence based on the conduct
of Engle and Emanuel), Count IV (survivorship) and Count V (wrongful death).
(Docs. 59, 66.)

1

Presently before the Court are Defendant City of Livingston’s Motions in
Limine (Doc. 81) and Plaintiffs’ Motion in Limine and to Bifurcate (Doc. 83).
I.

LEGAL STANDARD
Motions in limine are procedural devices that may be used to exclude

anticipated inadmissible or prejudicial evidence before it is actually offered at trial.
Luce v. United States, 469 U.S. 38, 40 n.2 (1984). Motions in limine, however, do
“not lie to exclude broad categories of evidence.” Acad. of Motion Picture Arts &
Scis. v. Godaddy.com, Inc., 2015 WL 12697750, *2 (C.D. Cal. Apr. 10, 2015).
Rather, motions in limine must specifically “identify the evidence at issue and state
with specificity why such evidence is inadmissible.” Colton Crane Co., LLC v.
Terex Cranes Wilmington, Inc., 2010 WL 2035800, *1 (C.D. Cal. May 19, 2010).
See also Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.
1975) (“Orders in limine which exclude broad categories of evidence should rarely
be employed. A better practice is to deal with questions of admissibility of
evidence as they arise.”).
“A party cannot use a motion in limine to sterilize the other party’s
presentation of the case.” Johnson v. Gen. Mills Inc., 2012 WL 13015023, *1 (C.D.
Cal. May 7, 2012). Motions in limine also should not be used to resolve factual
disputes or weigh evidence. C & E Services, Inc., v. Ashland Inc., 539 F.Supp.2d
316, 323 (D. D.C. 2008). To exclude evidence on a motion in limine, the evidence
2

must be “clearly inadmissible on all potential grounds.” Ind. Ins. Co. v. Gen. Elec.
Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). “Unless evidence meets this high
standard, evidentiary rulings should be deferred until trial so that questions of
foundation, relevancy and potential prejudice may be resolved in proper context.”
Hawthorne Partners v. AT & T Tech, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill.
1993). Although rulings on motions in limine may save “time, costs, effort and
preparation, a court is almost always better situated during the actual trial to assess
the value and utility of evidence.” Wilkins v. K-Mart Corp., 487 F. Supp. 2d 1216,
1219 (D. Kan. 2007).
II.

DEFENDANT’S MOTIONS IN LIMINE
Defendant moves to exclude any evidence, testimony or argument regarding:

(1) reference to any Defendant’s insurance status; and (2) O’Brien’s non-party
biological son. (Doc. 81.) Plaintiffs oppose the motion. (Doc. 87.)
A.

Insurance

Defendant argues any evidence regarding whether it is insured against
liability should be excluded as irrelevant and/or unduly prejudicial. Evidence of
insurance is generally not admissible. But evidence of insurance may be admitted
to show bias, prejudice, agency, ownership or control. Federal Rule of Evidence
411 provides:
Evidence that a person was or was not insured against liability is not
admissible to prove whether the person acted negligently or otherwise
3

wrongfully. But the court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice or proving
agency, ownership, or control.
Fed.R.Evid. 411. In addition, evidence of insurance may be admitted if the
defendant opens the door to the issue by putting its ability to pay into issue. See
e.g. Weiss v. La Suisse, Societe D’Assurances Sur La Vie, 293 F. Supp. 2d 397, 413
(S.D.N.Y. 2003). At this stage, however, Plaintiffs have not identified any
potential basis for admitting evidence of insurance. Defendant’s motion is
therefore, GRANTED.
The Court notes that rulings on motions in limine are provisional and “are
not binding on the trial judge [who] may always change his mind during the course
of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce v.
United States, 469 U.S. 38, 41 (1984). Accordingly, the Court may readdress the
admissibility of any insurance evidence as necessary at trial.
B.

O’Brien’s Non-Party Biological Son

Defendant argues the Court should preclude any reference to O’Brien’s nonparty biological son. Defendant states that during the course of discovery it was
disclosed that O’Brien may have had a second biological son named Kevin, who
was adopted by other parents. Kevin does not appear to be an heir to O’Brien, and
is not a party to this case. Plaintiffs concede Kevin is not a claimant, is not entitled

4

to damages. Plaintiffs further agreed at oral argument that evidence about Kevin
should not be presented to the jury.
Accordingly, Defendant’s motion is GRANTED.
III.

PLAINTIFFS’ MOTIONS IN LIMINE AND TO BIFURCATE
Plaintiffs move to exclude any evidence, testimony or argument regarding

the following: (1) any facts the officers were not aware of at the time of the
incident; (2) results of the coroner’s inquest; (3) evidence or references to issues
relating to O’Brien’s relationship with his son’s mother; (4) evidence of prior drug
and/or alcohol use; (5) prior criminal conduct and incarcerations; (6) prior
chemical dependency treatment and mental health commitments; (7) suicide and/or
death of other family members; (8) evidence of unrelated medical history; (9)
evidence or prior reports of abuse made by O’Brien or any reference to a psychic;
(10) references to “suicide by cop” and evidence of prior suicide attempts; (11)
evidence about the circumstances of Keelin O’Brien’s death; and (12) any
evidence that O’Brien said “shoot, shoot, damnit” during his interactions with the
officers. (Doc. 83.) Plaintiffs further move the Court to bifurcate the trial between
liability and damages phases. Defendant opposes the motion. (Doc. 88.)
A.

Bifurcation

Plaintiffs argue the Court should bifurcate the issue of liability from
compensatory damages to avoid the risk that prejudicial information may taint the
5

jury’s consideration of liability. Defendant opposes, arguing bifurcation is
inappropriate.
Federal Rule of Civil Procedure 42 provides: “For convenience, to avoid
prejudice, or to expedite and economize, the court may order a separate trial of one
or more separate issues, claims, crossclaims, counterclaims, or third-party claims.”
Fed.R.Civ.P. 42(b). District courts have broad discretion to determine whether to
bifurcate. Estate of Diaz v. City of Anaheim, 840 F.3d 592, 603 (9th Cir. 2016).
“It is clear that Rule 42(b) gives courts the authority to separate trials into liability
and damages phases.” De Anda v. City of Long Beach, 7 F.3d 1418, 1421 (9th Cir.
1993). Bifurcation may be necessary where evidence relevant to compensatory
damages has little relevance to liability, “but poses a significant risk of prejudice if
presented before the jury makes a liability determination.” Brown v. Grinder, 2019
WL 2337107, *1 (E.D. Cal. June 3, 2019). The Ninth Circuit has cautioned that
although courts are not required to “always, usually, or frequently” bifurcate
liability from damages, bifurcation should be granted where “prejudicial evidence
about the victim has little, and in large part no, relevance to the liability issue.”
Diaz, 840 F.3d at 603.
The Court finds bifurcating liability from compensatory damages is
warranted in this case. As discussed below, certain prejudicial evidence may be
relevant to the issue of compensatory damages, such as O’Brien’s educational
6

history, substance abuse history, prior arrests or convictions, relationship issues,
and parenting issues. But such evidence has little relevance to liability, and carries
the risk of unduly influencing the jury’s determination of liability. Further,
bifurcation is unlikely to prolong trial or require duplication of witnesses.
Accordingly, the GRANTS Plaintiffs’ request to bifurcate.
B.

Facts the Officers Were Not Aware of at the Time of the Incident

Plaintiffs argue the Court should preclude admission of any facts the officers
were not aware of at the time of the incident during the liability phase of the trial.
Plaintiffs contend the evidence is irrelevant to the jury’s determination of liability
for negligence under analogous excessive use of force case law. Defendants state
they have no intention of arguing that the shooting was justified based on facts
unknown to the officers at the time of the shooting. Defendants point out,
however, that Plaintiffs’ motion is overly broad and does not specifically identify
the evidence they seek to exclude.
Here, Plaintiffs allege the officers breached their duty of care by using
excessive force. Thus, the standard of objective reasonableness used in Fourth
Amendment claims are instructive in this case. The objective reasonableness of an
officer’s use of force is “judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490
U.S. 386, 396 (1989). Thus, generally only evidence that bears on the
7

circumstances of which the officer was aware when using force is relevant. Hayes
v. Cty. of San Diego, 736 F.3d 1223, 1233 (9th Cir. 2013). But “where what the
officer perceived just prior to the use of force is in dispute, evidence that may
support one version of events over another is relevant and admissible.” Boyd v.
City & Cty. of San Francisco, 576 F.3d 938, 944 (9th Cir. 2009).
Plaintiffs’ motion falls short of the specificity required for a motion in
limine. Rather than identifying evidence they seek to exclude, Plaintiffs list
several facts that the officers were purportedly aware of at the time of the shooting,
and argue the Court should preclude the admission of any other facts not outlined
in their brief. 1 (Doc. 84 at 12-14.) The Court finds this type of broad request
would require the Court to “‘rule in a vacuum’ on the admissibility of evidence.”
Acad. of Motion Picture Arts & Scis., 2015 WL 12697750, *2 (C.D. Cal. April 10,
2015). Without a specific objection to specific evidence, the Court is unable to
fairly evaluate and rule on Plaintiffs’ motion. Accordingly, the Court cannot find
the evidence is clearly inadmissible on all potential grounds at this time. Plaintiffs
may object to specific evidence at trial, and the Court will determine the

Plaintiffs include a summary of the dispatcher’s statements in their outline of
known facts, and argue the dispatcher’s statements are hearsay. (Doc. 84 at 12,
n.2.) Plaintiffs, however, have not moved in limine to exclude these statements.
Plaintiffs clarified at the hearing that they will object at trial if the evidence is
offered.
8
1

admissibility of such evidence in light of the factual context in which it is offered.
Plaintiffs’ motion is therefore, DENIED without prejudice.
C.

Results of the Coroner’s Inquest

The parties agree that the result of the coroner’s inquest should be excluded,
but the inquest transcripts may be used for impeachment or other purposes such as
to refresh a witness’ memory under Fed.R.Evid. 612. Accordingly, Plaintiff’s
motion is GRANTED as to the results of the coroner’s inquest and DENIED in
all other respects.
D.

Evidence Relating to O’Brien’s Relationship with his Son’s
Mother

Plaintiffs move to exclude evidence relating to fights, family violence,
stalking and/or assault between O’Brien and his son’s mother, Kimberly Crowell.
Plaintiffs further argue evidence regarding child support issues and O’Brien’s
marital status should be precluded. Defendant contends this evidence is relevant to
damages.
The Court agrees that evidence regarding O’Brien and Cromwell’s
relationship may be relevant to damages. It does not, however, appear relevant to
liability. As such, evidence relating to O’Brien’s relationship with Cromwell may
not be presented in the liability phase of the trial. If necessary, the Court will
determine the admissibility of such evidence in the damages phase in light of the
9

factual context in which it is offered. Plaintiffs’ motion is therefore, GRANTED
in part and RESERVED in part.
E.

Evidence of Prior Drug and/or Alcohol Use

Plaintiffs argue evidence of O’Brien’s prior drug use should be excluded as
irrelevant because the officers were not aware O’Brien was using drugs on the
night of the shooting. Plaintiffs further argue, that even if relevant, evidence of
drug use should be excluded under Rule 404(b) and 403. Defendant asserts the
evidence is relevant to support the officer’s assertions that O’Brien was acting
erratically, taunting the police, and goading them to shoot him. Plaintiffs counter,
however, that Defendant does not have an expert to testify as to how
methamphetamine or any other drug would make a person act.
The Ninth Circuit has recognized that courts may permit the introduction of
evidence unknown to an officer, where what the officer perceived prior to the use
of force is disputed. Boyd, 567 F.3d at 944. Nevertheless, courts generally
exclude evidence of intoxication as unduly prejudicial. See e.g. Hayes, 736 F.3d at
1233 (declining to “consider the fact that [the defendant] was intoxicated or that he
previously used a knife in harming himself” in analyzing the objective
reasonableness of the officers’ conduct); Estate of Diaz, 840 F.3d at 602 (finding
evidence of the decedent’s drug use was irrelevant and unduly prejudicial);
Ramirez v. City of Gilroy, 2020 WL 1492704, *1 (N.D. Cal. March 27, 2020)
10

(granting motion to exclude evidence of the decedent’s past or present drug use,
including a toxicology report showing evidence of drugs in his system at the time
of his death); Dominguez v. City of Los Angeles, 2018 WL 6164278, *2 (C.D. Cal.
Oct. 9, 2018) (finding evidence that there was marijuana in the decedent’s system
on the day he died was inadmissible).
Evidence regarding O’Brien’s remote history of drug use and/or chemical
dependency treatment is not relevant. The Court, however, lacks sufficient
information to find the evidence that O’Brien had intoxicants in his system at the
time of the shooting is inadmissible for any purpose. Ruling on Plaintiffs’ motion
is therefore, RESERVED. If necessary, the Court will determine the admissibility
of such evidence in light of the factual context in which it is offered. The parties
shall not present any evidence or argument at trial concerning O’Brien’s drug or
alcohol use until the Court has had an opportunity to address the issue outside of
the presence of the jury.
G.

Prior Criminal Conduct and Incarcerations

Plaintiffs seek to exclude all evidence relating to O’Brien’s prior criminal
conduct and incarcerations. Defendants assert such evidence may be relevant to
causation.
The Court finds evidence relating to O’Brien’s criminal history may not be
presented in the liability phase of the trial. If necessary, the Court will determine
11

the admissibility of such evidence in the damages phase in light of the factual
context in which it is offered. Plaintiffs’ motion is therefore, GRANTED in part
and RESERVED in part.
H.

Prior Mental Health Commitments

Plaintiffs argue O’Brien’s history of mental health treatment should be
excluded as irrelevant and unduly prejudicial. Defendants counter that Plaintiffs’
theory of the case makes O’Brien’s mental health history directly relevant.
Defendants point out that Plaintiffs have named a mental health behavior expert to
provide opinions regarding the mental health and behavior of O’Brien during the
events leading to his death, and a police practices expert who is expected to opine
that the officers should have recognized that O’Brien was suffering a mental crisis
and needed help.
To the extent Plaintiffs put O’Brien’s mental health at issue, evidence
related to his mental health may be relevant and admissible. Accordingly, the
Court will address the admissibility of this evidence in light of its factual context,
if and when it is offered at trial. Plaintiffs’ motion is therefore, RESERVED. The
parties shall not present any evidence or argument at trial concerning O’Brien’s
mental health history until the Court has had an opportunity to address the issue
outside of the presence of the jury.
///
12

I.

O’Brien’s Prior Reports of Physical, Sexual or Emotional Abuse

Plaintiffs argue the Court should exclude evidence of O’Brien’s unrelated
medical history, prior reports of abuse made by O’Brien, and any references to a
psychic. Defendant asserts Plaintiffs’ motion is overbroad and lacks specificity.
Defendant further asserts that the evidence is relevant to causation and whether
lesser action by the officers would have resulted in the peaceful restraint of
O’Brien.
The Court finds evidence relating to O’Brien’s unrelated medical history,
reports of prior abuse, and references to a psychic may not be presented in the
liability phase of the trial. If necessary, the Court will determine the admissibility
of such evidence in the damages phase in light of the factual context in which it is
offered. Plaintiffs’ motion is therefore, GRANTED in part and RESERVED in
part.
J.

Opinions Regarding “Suicide by Cop”

Plaintiffs argue any opinions related to “suicide by cop” should be excluded.
Defendant counters that the theory of “suicide by cop” has been widely accepted
and is relevant to causation in this case. Defendant, therefore, argues its expert,
Mark Muir, should be permitted to testify regarding “suicide by cop” provided a
proper foundation is laid.

13

Federal Rule of Evidence 702 controls the admissibility of expert opinion
testimony. It provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed.R.Evid. 702.
“For expert testimony to be admissible under Rule 702, it must satisfy three
basic requirements: (1) the expert witness must be qualified; (2) the testimony
must be reliable, and; (3) the testimony must be relevant.” Johnson v. Am. Honda
Motor Co. Inc., 923 F.Supp.3d 1269, 1272 (D. Mont. 2013). The trial court acts as
a gatekeeper by excluding evidence that does not meet standards of relevance and
reliability. Id. The proponent of the testimony bears the burden of establishing by
a preponderance of the evidence that the testimony is admissible under Rule 702.
Lust v. Merrell Dow Pharm. Inc., 89 F.3d 594, 598 (9th Cir. 1996).

14

Expert opinion testimony “is reliable if the knowledge underlying it has a
reliable basis in the knowledge and experience of the relevant discipline.”
Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010). Assessing reliability
requires the Court to consider whether the testimony reflects “scientific
knowledge,” whether the expert’s findings were “derived by the scientific
method,” and whether the expert’s work product was “good science.” Johnson,
923 F.Supp.3d at 1272. The focus of the 702 inquiry “must be on the principles
and methodology underlying an expert’s testimony, not the conclusions.” Kennedy
v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998).
In Daubert, the Supreme Court listed the following nonexclusive factors that
a court may also consider in assessing reliability: “(1) whether a theory or
technique can be tested; (2) whether it has been subjected to peer review and
publication; (3) the known or potential error rate of the theory or technique; and (4)
whether the theory or technique enjoys general acceptance with the relevant
scientific community.” W.R. Grace, 455 F.Supp.2d at 1187 citing Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993). These factors are not
determinative, and “may or may not be pertinent in assessing reliability, depending
on the nature of the issue, the expert’s particular expertise, and the subject of his
testimony.” Kumho Tire Co., LTD. V. Carmichael, 526 U.S. 137, 150 (1999).

15

The Court finds it is appropriate to conduct a Daubert hearing on this issue.
The hearing will be set by separate order.
K.

Evidence About Prior Suicides in the O’Brien Family

Plaintiffs move to exclude evidence about prior suicides in the O’Brien
family. Defendants argue Plaintiffs motion lacks specificity, and that prior suicide
attempts may be relevant to causation.
At this point, the Court is without sufficient information to determine the
potential relevance of this evidence, which has not been specifically identified.
Accordingly, the Court will address the admissibility of this evidence in light of its
factual context, if and when it is offered at trial. Plaintiffs’ motion is therefore,
RESERVED.
L.

Circumstances Surrounding Keelin O’Brien’s Death

Plaintiffs move to exclude evidence about the circumstances of Keelin
O’Brien’s death. Defendants assert the fact of Keelin O’Brien’s death is relevant
to the issue of damages. Defendants state that Keelin O’Brien died as a result of
illegal drug activity, and the jury should be given some information about how he
died.
The Court finds evidence about the circumstances of Keelin O’Brien’s is not
relevant, and may not be presented in the liability phase of the trial. If necessary,
the Court will determine the admissibility of such evidence in the damages phase
16

in light of the factual context in which it is offered. Plaintiffs’ motion is therefore,
GRANTED in part and RESERVED in part.
M.

Alleged Statement that O’Brien Stated “Shoot, Shoot, Damnit”

Finally, Plaintiffs move to preclude any claim by the officers that O’Brien
said “shoot, shoot, damnit” during the incident. Defendant asserts this is a
disputed fact, and Plaintiffs may not obtain a pretrial determination of disputed
facts.
Motions in limine may not be used to resolve factual disputes or weigh
evidence. C & E Services, Inc., 539 F.Supp.2d at 323. The officers may testify as
to their perception and memory of the events surrounding the incident.
Accordingly, Plaintiffs’ motion is DENIED.
DATED this 7th day of June, 2021.
_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge

17