Todd v. Baker et al
Filing
60
ORDER granting 36 Motion in Limine; denying 38 Motion in Limine; granting in part and denying in part 40 Motion in Limine; granting 42 Motion in Limine. Signed by Judge Donald W. Molloy on 6/4/2012. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
JOHN TODD,
)
)
Plaintiff,
)
)
vs.
)
)
IAN BAKER; CHAD ZIMMERMAN;
)
CITY OF KALISPELL; CITY OF
)
KALISPELL POLICE DEPARTMENT;
)
KALISPELL POLICE CHIEF ROGER
)
NASSET; and DOES 1-10,
)
)
Defendants.
)
___________________________________ )
CV 10-127-M-DWM
ORDER
On November 13, 2007, Plaintiff John Todd was tased by Officer Baker
during a chase. The taser incapacitated him and he fell to the sidewalk, striking
his head. He now raises constitutional and tort claims against the City of
Kalispell, the Kalispell Police Department, and Police Chief Roger Nasset
(collectively “the City”), as well as the officers involved in the incident, Ian Baker
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and Chad Zimmerman (“the Individual Defendants”).
Defendants’ four motions in limine are before the Court. The City seeks to
limit the testimony of Plaintiff’s expert witness Margot Luckman. (Doc. 36.) The
Individual Defendants seek to exclude or limit the testimony of Plaintiff’s expert
witness Dr. Gregory Hipskind (doc. 38) and the testimony of Plaintiff’s liability
expert, D.P. Van Blaricom (doc. 40). They also seek to exclude evidence
regarding prior bad acts, whether Todd in fact possessed marijuana, and insurance
and indemnification. (Doc. 42.) Though the Individual Defendants have been
dismissed from this action, their arguments are pertinent to the City’s defense and
are thus addressed below. The various motions are granted in part and denied in
part as set forth below.
ANALYSIS
The Court has wide discretion when determining motions in limine.
Trichtler v. Co. of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). Irrelevant evidence
is inadmissible, but relevant evidence is generally admissible. Fed. R. Evid. 402.
Rule 702 of the Federal Rules of Evidence governs the admissibility of
expert testimony. It provides:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data, (2) the
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testimony is the produce of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of
the case.
Fed. R. Evid. 702. The trial court acts as the “gatekeeper” in making this
determination. Fed. R. Evid. 104(a). It considers whether the underlying
methodology has been tested, whether it has been subjected to publication and
peer review, whether the technique is standardized or regulated, its known or
potential rate of error, and whether it is generally accepted in the scientific
community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
592–94 (1993). The party seeking to admit an expert’s testimony does not have to
prove that the testimony is scientifically correct, but must show by a
preponderance of the evidence that it is reliable and helpful to the trier of fact. Id.
at 592 n. 10. “Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Id. at 596.
A.
Plaintiff’s Expert Witness Margot Luckman
The City has moved to exclude certain evidence, testimony, or opinions that
may be offered by expert witness Margot Luckman, a certified rehabilitation
counsel and licensed professional counsel, concerning Todd’s injury and its
effects. Specifically, the City contends Luckman may not testify that: 1) Todd has
a traumatic brain injury; 2) Todd will require household maintenance assistance;
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3) Todd should enroll in the Bridges program; and 4) Todd will not continue to
improve from any injuries he suffered or a patient with a traumatic brain injury is
done improving three years after the date of injury. (Doc. 37 at 2.)
The parties appear to agree on all the issues presented, though the motion
was opposed. Todd concedes in his response brief that Luckman is not qualified
to diagnose traumatic brain injury. (Doc. 46 at 2–3.) He also concedes that
because she relied on Dr. Rosen’s opinions, her opinions must conform to his
updated opinions as expressed in his deposition. (Id. at 3.) Finally, he concedes
that she must defer in this case to Dr. Rosen’s opinions regarding the likelihood
that Todd’s condition will improve or decline. (Id. at 4.) However, Todd
emphasizes that Luckman is entitled to rely on the diagnoses of other health care
providers as the basis for her own opinions, and that she may testify as to the basis
of her opinions. (Id. at 1.) The City agrees. (Doc. 52 at 2.)
Accordingly, the City’s motion (doc. 36) is granted. Luckman may testify
as to the basis of her opinions, but she may not opine whether Todd actually
suffered a traumatic brain injury, and she must defer to the updated opinions of the
medical providers upon whom she relied in forming her own opinions.
B.
Plaintiff’s Expert Witness Gregory Hipskind, M.D.
The Individual Defendants move to exclude the testimony of Dr. Gregory
Hipskind regarding the results of a Single Photon Emission Computed
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Tomography (“SPECT”) scan of Todd’s brain. Their motion is denied; the
evidence is “shaky but admissible” and thus may be explored on crossexamination. Daubert, 509 U.S. at 596.
Todd and his attorneys ordered the SPECT scan at issue after two of Todd’s
treating physicians, Dr. Rosen and Dr. Patrick Burns, declined to do so because
they do not believe the scans are useful for diagnosing or treating brain injuries.
The scan was conducted in Denver, Colorado, by a company called CereScan.
CereScan transmitted the scans and a three-paragraph “Patient History” to Dr.
Hipskind to evaluate. Dr. Hipskind concluded that there was abnormally low
blood flow in the cortical and subcortical areas of Todd’s brain. He further
concluded that “[t]he nature, overall pattern and location of these abnormalities is
most consistent with traumatic brain injury. . . .” (Doc. 39-1 at 3.)
1. Diagnosis and causation
The Individual Defendants argue that Dr. Hipskind should not be permitted
to testify that Todd has a traumatic brain injury or speculate as to the cause of
Todd’s abnormalities because the information he is relying on is inadequate or
unreliable.
At his deposition, Dr. Hipskind testified that a SPECT scan is not a standalone diagnostic tool. (Dep. Dr. S. Gregory Hipskind, 14:10–15:3 (Dec. 7, 2011),
doc. 39-2.) Before rendering a diagnosis, an analyst must consider other clinical
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information. (Id.) Nor can a SPECT scan, on its own, “tell you the cause of a
particular abnormality.” (Id. at 15:16-20; 20:13–26:12). Per his usual practice,
the only information Dr. Hipskind considered besides the scans was the threeparagraph “Patient History” included at the start of his report. The “Patient
History” states that Todd received a traumatic brain injury when he was tased and
thereafter suffered a battery of symptoms. Dr. Hipskind did not meet or
communicate with Todd or review any of his medical records. He did not speak
with any of Todd’s medical providers, family members, friends, or co-workers,
and he did not review any of the deposition transcripts, pleadings, or discovery in
this case.
The “Patient History” was written by a CereScan employee in Colorado and
appears to reflect the history she received directly from Todd. There is no
indication she reviewed any other records or independently examined or diagnosed
Todd. The history does not state when Todd had last consumed caffeine, alcohol,
nicotine, marijuana, or over-the counter medications, or whether he had any
mental illnesses, developmental issues, learning disorders, ADHD, depression,
diseases, or infections. Nor does it mention whether he had ever experienced any
other head trauma besides the tasing incident. As admitted by Dr. Hipskind, all
these factors can cause abnormal SPECT scan results.
An expert may rely on inadmissible evidence if the facts and data are the
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kind that experts in the field rely upon and such reliance is reasonable. Fed. R.
Evid. 703. A doctor can reasonably rely on a patient’s self-reports, even if the
reports may be inaccurate. For example, the Seventh Circuit has held:
Medical professionals reasonably may be expected to rely on selfreported patient histories. See Cooper v. Carl A. Nelson & Co., 211
F.3d 1008, 1019–21 (7th Cir. 2000). Such histories provide information
upon which physicians may, and at times must, rely in their diagnostic
work. Of course, it is certainly possible that self-reported histories may
be inaccurate. [The expert] himself said that it was not unusual for
patients to misrepresent their histories to him. In situations in which a
medical expert has relied upon a patient's self-reported history and that
history is found to be inaccurate, district courts usually should allow
those inaccuracies in that history to be explored through crossexamination.
Walker v. Soo Line R. Co., 208 F.3d 581, 586–87 (7th Cir. 2000).
Though the doctor in Walker reviewed more information than Dr. Hipskind,
the same reasoning applies here. The accuracy and adequacy of Todd’s “Patient
History,” and the reasonableness of relying on a third party to collect the
information, can best be explored on cross-examination and through rebuttal
testimony. Accordingly, Dr. Hipskind may testify as to his diagnosis of Todd’s
injury and its cause based on his analysis of the SPECT scans and reliance on the
“Patient History.” The record shows that cross-examination is most likely going
to raise credibility issues and that, of course, is its primary purpose.
2. Consistency with traumatic brain injury
Dr. Hipskind may also testify that Todd’s SPECT scans are “most consistent
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with” a traumatic brain injury. The SPECT methodology as applied by Dr.
Hipskind is sufficiently reliable to admit the evidence and permit Defendants’
arguments to be explored on cross-examination.
a. Other possible explanations for Todd’s SPECT scan results
As noted above, neither Dr. Hipskind nor the CereScan employee who took
down Todd’s history made much effort to account for other explanations for the
alleged abnormalities in Todd’s SPECT scans. There is evidence that Todd may
have suffered from ADHD or another learning disorder before the November 13,
2007 incident, that he suffers from anxiety, that he has used alcohol and
marijuana, and that he was taking an anti-anxiety medication, Propranolol, at the
time of the SPECT scan. As admitted by Dr. Hipskind, each of these factors could
cause abnormal perfusion patterns.
However, Dr. Hipskind also testified that he would expect the patterns
caused by other factors to be different from a pattern caused by a traumatic brain
injury. (Dep. Hipskind, 12:16–22 (using mental illness as an example); 59:4–24
(using medications and drugs as an example).) He also stated that “the areas of
involvement in Mr. Todd’s case are fairly classic and pretty much right out of the
textbook for a traumatic pattern.” (Id. at 47:9–18; see also 60:5–61:2 (describing
typical pattern).) Defendants’ own Exhibit F also indicates that “signature”
patterns have been identified for various problems, including moderate-to-severe
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head trauma. (Socy. of Nuclear Med. Brain Imaging Council, Ethical Clinical
Practice of Functional Brain Imaging, 37 J. of Nuclear Med. 1256, 1256–57, doc.
39-6.) Because different patterns can be associated with different causes, Dr.
Hipskind may opine on whether the patterns he observed in Todd’s scans are
consistent with traumatic brain injury. Defendants can explore the reliability of
that conclusion on cross-examination and the jury will resolve the issue.
b. Reliability of the database on “normal” perfusion
Defendants also challenge the reliability of the “normal” database used by
Dr. Hipskind for comparison. They do not dispute Dr. Hipskind’s assertions that
the Segami database was compiled in the 1990s by Dr. Ismael Mena, that it
consists of 68 control subjects who were screened for pre-existing mental illness,
substance abuse, trauma, and infection, and that studies based on the control group
have been published in peer-reviewed scientific journals. The database is
categorized by age, and Todd was compared only to the approximately 20
individuals between the ages of 18 and 45. But Defendants argue that the database
fails to control for variables such as sex, single-handedness, education level,
socio-economic status, and ethnic or cultural background.
While a larger control group with more data may be helpful and make
comparison results less vulnerable to challenge, Defendants have not shown that
the Segami database is inherently unreliable or that it results in inaccurate
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comparisons. Nor have they offered evidence that other variables such as sex,
single-handedness, education level, socio-economic status, and ethnic or cultural
background affect blood perfusion in the brain. The database has been used
before, studies based on the database have been subject to peer review, and the
control subjects were screened for factors that are known to cause blood perfusion
abnormalities. Accordingly, the preponderance of the evidence suggests the
database is adequate here.
c. The SPECT scan’s “cartoon” image of blood perfusion data
Defendants challenge the SPECT scan images comparing Todd to the
control group on the grounds that they are not precise, they are not “pictures” of
Todd’s brain, and they are just a colorful “gimmick” to show the jury. That of
course is argument.
A SPECT scan image comparing a patient to a control group is a visual
representation of data from a patient’s SPECT scan superimposed on data from the
control group. (Dep. Hipskind 62:4–65:6.) The data from the control group is
averaged, and software creates a derivative image of a brain that is displayed in
greys. (Id.) Where the patient’s data deviates from the control group average, it
displays in bright colors. (Id.) Thus, these images are not pictures of any one
person’s brain and are not very precise. (Id.)
SPECT images can also be misleading. Some “data warping” may result
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because the computer program is unable to correctly map the patient’s brain on to
the “average” brain. (Rpt. of Defs.’ Expert Dr. Alan Waxman, Exhibit H, doc. 398 at 6.) Additionally, the analyst can set the default color settings to “emphasize
subtle abnormalities,” as Dr. Hipskind did here, and can select the level of
deviation that will display as “abnormal.” (Dep. Hipskind 67:12–70:17.)
Defendants’ expert Dr. Waxman argues that Dr. Hipskind applies such a high
threshold that “abnormalities” will be seen in most normal subjects. (Rep.
Waxman, doc. 39-8 at 13.) Again, there may be room for argument to the jury,
but not enough to preclude the evidence.
Though the images may simplify and even distort a complex picture, the
evidence does not support their exclusion. Dr. Hipskind testified that the images
serve “as secondary support to validate [that the comparison is] similar in pattern
and location to what you saw on your original scanned data” and they are a
“secondary way to look at the data.” (Dep. Hipskind 67:12–70:17.) Like a graph
or a pie chart, or any summary or compilation of information, these images make
the data more comprehensible to a layperson, if less precise. They are probative of
any differences in blood perfusion between Todd’s brain and a typical brain and
will help the jury understand Dr. Hispkind’s testimony. Competent crossexamination can adequately identify the weaknesses of the images and the
evidence.
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d. General acceptance of SPECT scan methodology
Defendants are adamant that SPECT imaging is not generally accepted as a
tool for diagnosing or treating mild head trauma. They note that the American
Academy of Neurology and the Society of Nuclear Medicine consider SPECT
imaging an investigational tool for the study of mild head injury, not a diagnostic
or evaluative tool for the treatment of patients. They also point out that Todd’s
own doctors refused to order SPECT scans because they do not find them helpful
in diagnosing or treating head trauma.
Regardless of whether SPECT scans are generally used in treatment
settings, there is sufficient evidence to permit the jury to consider Dr. Hipskind’s
testimony here. SPECT scans appear least reliable when a head injury is mild; the
severity of Todd’s alleged injury is unclear. The study cited by Todd suggests that
SPECT scans can reveal abnormalities associated with head trauma and that
abnormalities are more likely to appear if a patient has received multiple or more
severe injuries. (See Jeffrey David Lewine, et al., Objective Documentation of
Traumatic Brain Injury Subsequent to Mild Head Trauma: Multimodal Brain
Imaging with MEG, SPECT, and MRI, SPECT, 22:3 J. of Head Trauma
Rehab.141, 141–42, 146, 148, doc. 54-1.) Todd’s own doctors had already
evaluated Todd’s injury and deficits based on other information; they did not need
a SPECT scan to diagnose or treat Todd. But a jury could reasonably find that
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SPECT scan results are helpful to them in weighing evidence that physical
anomalies are present that are consistent with head trauma. There is sufficient
evidence to permit a jury to consider the evidence and determine what weight to
give it.
e. Subjective interpretation of SPECT scans
Defendants also insist that SPECT scans are unreliable because their
interpretation is subjective. They note that Dr. Waxman reviewed the same scans
as Dr. Hipskind and concluded that they are normal. They also cite a 2001 study
that demonstrated significant variation in the interpretation of SPECT scans by
experienced, board-certified specialists. (H.L. Stockbridge, et al., Brain SPECT: A
controlled, blinded assessment of intra-reader and inter-reader agreement, 23
Nuclear Med. Communs. 537–44 (2002), doc. 39-7.) The variation differed by
anatomical region; there was 96–98% agreement in assessing the basal ganglia and
29–81% agreement in assessing the parietal area. (Id. at 540.) The study also
found more agreement between readers who worked closely in the same institution
than between readers who worked at different institutions. (Id. at 542.) This
finding supports Dr. Hipskind’s testimony that he and a Dr. Henderson, whom he
had trained, agreed more than 95% of the time in their interpretation of 500 brain
scans. (Dep. Hipskind, 78:9–79:22.)
Though interpreting SPECT scans is a relatively subjective enterprise, it
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does not make SPECT scans inherently unreliable. The study on inter-reader
agreement also noted that “[s]ignificant observer variation has been observed in
many commonly used radiological, pathological, nuclear medicine, physical
examination, and electrophysiologica1 tests[,]” including pulmonary angiography,
cervical Papicanolau smears, and mammograms. (Stockbridge, 543, doc. 39-7.)
Such evaluative tools are, nonetheless, sufficiently reliable to be admitted in court.
Additionally, the study noted that the readers agreed with their own initial scoring
of individual lesions in 65–96% of second readings, suggesting each reader at
least demonstrates some internal consistency. (Id. at 540.) The weaknesses of
SPECT scan interpretation may be explored on cross-examination, but the
evidence is reliable enough to be admitted.
Accordingly, Defendants’ motion to exclude Dr. Hipskind’s testimony is
denied.
C.
Plaintiff’s Liability Expert, D.P. Van Blaricom
The Individual Defendants also move to exclude the evidence, testimony, or
opinions of Todd’s liability expert, D.P. Van Blaricom. Specifically, they seek to
exclude his reports, dated August 31, 2011, and amended October 6, 2011. (Doc.
40 at 2.) They also seek to exclude any testimony or evidence concerning:
1. Whether Plaintiff was the subject of excessive, unnecessary, and/or
grossly unreasonable force through the use of a Taser;
2. Whether Zimmerman's supervision of Baker was deliberately indifferent
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or caused a violation of Plaintiff s federal rights;
3. Whether adequate cause existed to seize Plaintiff and whether probable
cause existed to charge Plaintiff with possession of dangerous drugs;
4. Whether Police Chief Nasset ratified the tasing of Plaintiff;
5. Whether the Kalispell Police Department was aware that the use of a
Taser was unwarranted and injurious;
6. Whether the Kalispell Police Department's review of the tasing incident
was inadequate; and
7. Whether the Kalispell Police Department's use of force policy relating to
the use of Tasers was inadequate.
(Id.) Finally, they seek to exclude Mr. Van Blaricom's rebuttal to the opinions and
testimony of Defendants’ liability expert, Police Chief Mark Muir.
Given this court’s summary judgment determination, issues 2, 3, 4, 5, 6,
and 7 are moot. That leaves only whether the following should be excluded: Van
Blaricom’s reports, his opinions regarding whether the force used was excessive,
and his rebuttal testimony.
1.
Admissibility of expert reports
As the parties agree, Van Blaricom’s expert reports are hearsay. Fed. R.
Evid. 801. While experts sometimes may rely on inadmissible evidence, Van
Blaricom did not rely on his own reports in forming the opinions he expressed
therein. Accordingly, they are not admissible under Rule 703 to show the basis of
his opinion. Nor are the reports more probative than the testimony of Van
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Blaricom would be, and Todd has not shown that Van Blaricom is unavailable to
testify. Fed. R. Evid. 807(a)(3). Accordingly, Van Blaricom’s reports are
inadmissible. What is contained in the reports may be admissible if the
requirements of the Federal Rules of Evidence are met.
2.
Opinions regarding whether the force used was excessive under
the Montana Constitution
The officers were entitled to use some force to effectuate a Terry stop when
Todd began to flee. Graham v. Connor, 490 U.S. 386, 396 (1989). However,
there is a genuine dispute whether the amount of force employed was reasonable
considering that Baker did not warn Todd he was going to tase him and the
officers did not clearly identify themselves. While Van Blaricom may not testify
as to issues already decided, he may offer his opinion on whether Baker’s use of
the taser here was reasonable.
Expertise may be based on professional studies or personal experience.
Daubert, 509 U.S. at 152. Van Blaricom’s expertise is based on a combination of
the two. (See doc. 50-1.) He was a police officer for twenty-nine years, eleven
years of which he served as the Chief of Police of Bellevue, Washington. (Doc.
41-1.) For the past twenty-five years, he has been engaged as a police practices
consultant (id.) and has pursued extensive continuing education in relevant matters
including tasers and taser use, use of force, and police liability (doc. 50-1 at 3–4).
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Van Blaricom is personally familiar with making “split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Graham, 490 U.S. 396–97. He
has also trained officers on making those decisions and studied police practices
and policies concerning use of force decisions.
Van Blaricom did not use a taser when he was an active police officer, did
not implement policies on taser use as a police chief or City Council member, is
not certified in taser use, and has attended only three seminars on tasers.
However, taser use is considered an intermediate use of force and fits within an
established continuum. Nothing about the use of the taser in this case would
require a technical knowledge specific to the taser. Rather, the reasonableness of
the use of force deployed in this particular situation is at issue. Accordingly, Van
Blaricom possesses “sufficient specialized knowledge to assist the jurors in
deciding” this issue. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152
(1999).
3. Rebuttal to Mr. Muir’s Testimony and Opinions
Defendants object to paragraph 14 of Van Blaricom’s amended report, in
which he responds to the report of Defendants’ liability expert, Police Chief Mark
Muir. They contend it is an improper attack and comment on Muir’s character and
testimony. It is not. To the extent Muir testifies regarding the reasonableness of
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the use of force in this case, Todd may seek rebuttal testimony from Van Blaricom
as to the same issue. Van Blaricom alludes to two use-of-force cases against the
City of Missoula that were brought when Muir was Assistant Chief of Police and
Chief of Police. Evidence concerning these cases is admissible as impeachment
evidence under Rule 607 because it goes to Muir’s credibility and potential bias.
Accordingly, Defendants’ motion to strike this paragraph and exclude such
rebuttal testimony is denied.
D.
Alleged Prior Bad Acts, Evidence Todd Was Not in Possession of
Dangerous Drugs, and Liability Insurance and Indemnification
The final motion before the Court is the Individual Defendants’ motion
seeking to exclude evidence concerning 1) alleged prior bad acts of Baker and
Zimmerman, 2) any argument Plaintiff was not in possession of dangerous drugs,
and 3) liability insurance and indemnification.
The motion is granted as to the latter two arguments. A prior order held that
the officers had reasonable suspicion to effectuate a Terry stop and probable cause
to arrest Todd. Actual innocence or guilt is immaterial to whether the use of force
was reasonable if the officers had cause to use force. Accordingly, evidence that
Todd was not in possession of marijuana when he was seized is irrelevant and
inadmissible. Fed. R. Evid. 402. Additionally, any evidence or improper
suggestion concerning insurance or indemnification by either party is disallowed
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under Federal Rule of Evidence 411 and Larez v. Holcomb, 16 F.3d 1513,
1518–21 (9th Cir. 1994).
Defendants also seek to exclude evidence regarding alleged prior bad acts
by the officers involved in the tasing incident. Between 2005 and 2008, the
Kalispell Police Department investigated ten instances of alleged wrongdoing by
Officers Baker and Zimmerman, including three use-of-force complaints. (Doc.
32 at 11.) The Department sustained one excessive force complaint against
Officer Baker due to his failure to report the use of force as required. (Id.)
Officers Baker and Zimmerman were exonerated on the other two excessive force
complaints. (Id.) Officer Zimmerman was also given an oral warning for rudeness
and Officer Baker for failure to report. The remaining complaints were not
sustained. Plaintiffs’ liability expert, Van Blaricom, reviewed the Departments’
reports on all the complaints and determined that they were not relevant to his
analysis because citizen complaints against officers are common and the evidence
did not show “a series of excessive force complaints.” (Dep. Van Blaricom,
94:1–16, doc. 43-1.)
At this point, Rule 404(b) would seem to exclude evidence regarding these
complaints and incidents. Plaintiffs assert that “other incidents of allegations of
excessive use of force[] and failure to report use of force accurately have at least a
‘tendency’ to establish the individual officers’ motive, intent, [and] absence of
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mistake or accident.” (Doc. 53 at 3 (referring to Fed. R. Evid. 404(b)(2).) But the
question for the jury is whether the use of force was reasonable in this particular
instance, “without regard to [the officers’] underlying intent or motivation.”
Graham, 490 U.S. at 397. The jury must only decide whether the officers’
judgment was reasonable, not whether they reported the incident accurately later.
Nonetheless, the Court reserves ruling on the admissibility of prior bad act
evidence. The evidence may become relevant at trial, depending on the testimony
that is presented.
CONCLUSION
For the reasons stated above, the IT IS HEREBY ORDERED as follows:
1. The City’s motion to limit the testimony of Margot Luckman (doc. 36) is
GRANTED. Luckman may testify as to the basis of her opinions, but she may not
opine whether Todd actually suffered a traumatic brain injury, and she must defer
to the updated opinions of the medical providers upon whom she relied in forming
her own opinions.
2. The Individual Defendants’ motion to exclude or limit the testimony of
Dr. Gregory Hipskind (doc. 38) is DENIED.
3. The Individual Defendants’ motion in limine regarding liability expert
D.P. Van Blaricom (doc. 40) is GRANTED in part and DENIED in part. Van
Blaricom’s expert report is inadmissible hearsay. However, he may offer his
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opinion on whether the use of force in this case was reasonable. Defendants’
motion to strike ¶ 14 of his report or exclude such rebuttal testimony is also denied
under Rule 607, and Defendants’ remaining arguments are denied as moot.
4. The Individual Defendants’ final motion in limine (doc. 42) is
GRANTED as to evidence regarding insurance and indemnification and as to
evidence that Todd was not in possession of marijuana. The court reserves ruling
on Defendants’ motion to exclude evidence concerning alleged prior bad acts by
Zimmerman and Baker until the arguments can be evaluated in light of the
evidence presented at trial.
Dated this 4th day of June 2012.
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