Hardesty v. Barcus et al

Filing 126

ORDER granting in part and denying in part 75 Motion in Limine; granting in part and denying in part 83 Motion in Limine Signed by Jeremiah C. Lynch on 11/26/2012. (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
MARC HARDESTY,
CV 11-103-M-DWM-JCL
Plaintiff,
vs.
ORDER
GLEN BARCUS, in his individual
and official capacities, COL.
MICHAEL TOOLEY, in his individual
and official capacities, MONTANA
HIGHWAY PATROL, and JOHN
DOES 1-25, in their individual and
official capacities,
Defendants.
_____________________________________________
Before the Court are the parties’ motions in limine. For the reasons stated,
the motions are granted in part, and denied in part.
I.

BACKGROUND
On April 22, 2009, Montana Highway Patrol Trooper Glenn Barcus initiated

a traffic stop of Plaintiff Marc Hardesty on U.S. Highway 2 near Kalispell,
Montana. During the course of the encounter, Barcus directed Hardesty to exit the
vehicle. While Hardesty initially complied, he fled from the scene with Barcus in
pursuit. During the pursuit, several physical encounters occurred between the two,
1

in which Barcus struck Hardesty several times with a flashlight, dispersed
Oleoresin Capsicum (“OC”) spray, and punched him in the right eye. Barcus,
however, was also contaminated by the OC spray he deployed.
Hardesty commenced this action seeking compensation for the injuries he
allegedly sustained in the encounter with Barcus. Also named as a defendant is
Colonel Michael Tooley, the Chief Administrator of the Montana Highway Patrol
(“Highway Patrol”).
Hardesty advances claims under 42 U.S.C. § 1983 against Barcus for his
alleged use of excessive force in violation of the Fourth and Fourteenth
Amendments to the United States Constitution. Hardesty also seeks to impose
section 1983 liability upon Tooley in relation to his hiring, supervising, training,
disciplining, and controlling Barcus.
Additionally, Hardesty advances claims under Montana law against Barcus
for assault and battery, and against both Barcus and Tooley for negligence,
negligent and intentional infliction of emotional distress, malicious acts or
omissions, and violations of the Montana Constitution.
On November 15, 2012, the Court issued its recommendation that all of
Hardesty’s claims against Tooley be dismissed. Therefore, as noted below, certain
aspects of the parties’ motions in limine relative to Tooley’s alleged liability are
2

moot and, therefore, denied.
II.

DISCUSSION
A motion in limine is used to secure the exclusion of inadmissible evidence

before it is actually offered at trial. Luce v. United States, 469 U.S. 38, 40 n. 2
(1984). To be excluded, the evidence must be inadmissible on all potential
grounds. BNSF Railway Company v. Quad City Testing Laboratory, Inc., 2010
WL 4337827, *1 (D. Mont. 2010). “‘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.’” Id.
(quoting Hawthorne Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398,
1400 (N.D. Ill. 1993)). A court has discretion in ruling upon a motion in limine.
Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004).
A.

Tooley and Barcus’s Motion in Limine
1.

Will Cordes
a.

Opinions That Are No Longer Relevant

Defendants move to exclude certain opinions of Hardesty’s expert witness,
Will Cordes. Several of those opinions, however, are relevant only to the issue of
Tooley’s purported liability. They are Mr. Cordes’s opinions regarding:

3

1.

the Highway Patrol and Tooley’s conduct in hiring Barcus, and their
use of Risk Assessment Profiles prepared regarding Barcus for use in
considering Barcus’s job application;

2.

deficiencies in the training that the Highway Patrol and Tooley
provided to troopers relative to the use of force against citizens; and

3.

the heroism award, or “Medal of Valor” given to Barcus.

Since the Court recommends that Tooley be dismissed, these opinions are
no longer relevant to any fact or issue yet to be resolved at trial. Therefore,
Defendants’ motion is denied as moot with respect to these three opinions.
b.

OC Spray

Defendants move to exclude a specific opinion Mr. Cordes has expressed
regarding Barcus’s use of OC spray in this case. Although Mr. Cordes indicates
Barcus’s use of the OC spray may have been justified, he opines that Barcus’s
“own contamination contributed to his heightened state of anxiety, and he should
have disengaged and made more of an effort to call for backup.” Dkt. 76-1 at 18
of 22. Defendants argue Mr. Cordes is not sufficiently qualified as an expert on
the use of OC spray as required by Fed. R. Evid. 702 to render an opinion
regarding those matters.
Rule 702 of the Federal Rules of Evidence governs the admissibility of
expert opinion testimony and provides as follows:

4

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.
Under authority of Rule 702 the district courts must serve as a “gatekeeper”
to ensure that expert opinion testimony is both relevant and reliable. Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). The proponent of
expert witness opinion testimony bears the burden of establishing its admissibility,
and “must show by a preponderance of the evidence that it is reliable and helpful
to the trier of fact.” Todd v. Baker, 2012 WL 1999629, *1 (D. Mont. 2012);
Groves v. Croft, 2011 WL 5509028, *5 (D. Mont. 2011). The district court has
discretion in ruling on the admissibility of expert testimony. Primiano v. Cook,
598 F.3d 558, 563 (9th Cir. 2010).
One of the preliminary gate-keeping determinations a trial court must make

5

relative to the admission of an expert’s testimony is whether the witness is
appropriately qualified as an expert on the particular subject matter. United States
v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000); Fed. R. Evid. 104(a). Rule 702
provides that an expert may be qualified based on his or her “knowledge, skill,
experience, training, or education[.]” But an expert must possess the requisite
qualifications within the specific area of expertise on which the expert is expected
to express an opinion. See Reiner v. Warren Resort Hotels, Inc., 2008 WL
5120682, *13 (D. Mont. 2008). Although an expert may be qualified in one area
of expertise, the expert “may be precluded from offering opinions beyond that area
of expertise[.]” United States v. W.R. Grace, 455 F. Sup. 2d 1181, 1188 (D. Mont.
2006).
Defendants cite to Mr. Cordes’s deposition testimony confirming that his
knowledge of, and experience with, OC spray is extremely limited. In the mid
1980s, when Mr. Cordes worked for a sheriff’s department in Georgia, that
department evaluated whether its officers should carry OC spray. Mr. Cordes
received some training on OC spray at that time in connection with the
department’s evaluation of the spray. But after evaluating the propriety of using
OC spray, the sheriff’s department decided it would not use it.
Mr. Cordes also confirmed that in his career as a law enforcement officer he
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has never been issued OC spray, and he has never used OC spray on any suspect.
He stated he has no experience in “the proper use of OC spray in the law
enforcement environment,” and he has never taught any training courses on the
use of OC spray. Dkt. 76-2 at 48-49 of 58.
In response, Hardesty suggests that Mr. Cordes is sufficiently qualified as
an expert on the use of OC spray. Hardesty, however, relies only on Mr. Codes’s
general knowledge about officer safety issues concerning the use of weapons in
arrest situations, and his general knowledge regarding the use of force.
Significantly, Hardesty has presented no evidence supporting his qualifications as
an expert in the specific field of using OC spray.
Based on Mr. Cordes’s deposition testimony, the Court finds that, other than
his experience in the mid 1980s in evaluating the propriety of using OC spray, he
has no knowledge, experience or training in the specific area of expertise
regarding the use of OC spray. There is nothing his Mr. Cordes’s background that
qualifies him as an expert on the effects of OC spray on an officer’s mental state of
mind due to self-contamination, or the protocol an officer should follow in the
course of pursuing a suspect if the officer contaminates himself with OC spray.
The preponderance of the evidence establishes that Mr. Cordes does not possess
the requisite qualifications in that specific area of expertise. Defendants’ motion
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is granted in this respect.
c.

Report Writing

Hardesty intends to present Mr. Cordes’s opinions relative to deficiencies in
Barcus’s abilities to properly and thoroughly prepare a detailed investigative
police report following his encounter with Hardesty. Mr. Cordes criticizes the
substance of Barcus’s report in that it failed to articulate the exigencies of the
circumstances justifying the force Barcus used against Hardesty. Defendants
move to exclude this opinion testimony on the ground it is irrelevant to the factual
issues to be resolved at trial. The Court agrees.
Rule 702 requires that an expert’s testimony “must help the trier of fact to
understand the evidence or to determine a fact in issue[.]” Fed. R. Evid. 702(a).
This is a threshold issue the court must assess in determining whether the expert’s
opinion is admissible. Daubert, 509 U.S. at 592.
The relevant facts at issue in this case are those that describe Barcus’s
conduct towards Hardesty on April 22, 2009, which have probative value to
Hardesty’s theories of liability. Thus, Barcus’s alleged inability to properly
prepare his police report subsequent to the events on April 22, 2009, is irrelevant
to the facts of this case, and an expert opinion on that matter will not assist the
jury in determining any fact at issue in this case.
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Hardesty, however, argues that Mr. Cordes’s opinions as to the deficiencies
in Barcus’s report are admissible to assist in impeaching Barcus’s credibility as to
the details of the encounter between Barcus and Hardesty on April 22, 2009.
Hardesty asserts the report lacks a description of the requisite details that would
justify Barcus’s conduct and use of force. Therefore, he suggests Barcus is either
not fully credible about the events that transpired, or he does not accurately
remember what happened.
Hardesty is obviously free to question Barcus regarding the justifications for
his conduct, and he may question Barcus about the alleged absence of sufficient
facts articulated in his report that would support his assertion that the level of
force he employed was justified under the circumstances. But testimony in the
form of an expert opinion is not necessary for the purpose of identifying facts that
are missing from Barcus’s report that might justify his use of force. Mr. Cordes’s
opinion testimony cannot be offered by Hardesty, in the first instance, to suggest
Barcus’s trial testimony is not credible. Whether Barcus opens the door to rebuttal
testimony by Cordes will depend on the events which transpire at trial.
d.

Suspect Identification

Defendants move to exclude Mr. Cordes’s opinion as to why Barcus may
have chased Hardesty when Hardesty fled from the scene. By the time Hardesty
9

fled, Barcus had not obtained any identifying information about Hardesty. With
respect to those facts, Mr. Cordes states as follows: “Although it is pure
conjecture on my part, I believe this incident was predicated by Trooper Barcus’s
failure to initially identify his suspect.” Dkt. 76-1 at 15 of 22. Mr. Cordes
explains his opinion stating that “[w]hen Mr. Hardesty began to flee, the trooper
probably realized his mistake in failing to get a name for the record [...], and
Trooper Barcus probably realized at that moment a successful escape would have
left him with no identifiable suspects.” Id. Defendants argue these expert
opinions are inadmissible as inappropriate speculation and conjecture.
Hardesty argues Mr. Cordes has expertise in police practices, and can
present testimony that Barcus erred in failing to obtain Hardesty’s identification.
From that expertise, however, Hardesty suggests Cordes can appropriately form an
opinion that Barcus may have decided to chase Hardesty because he neglected to
get his identification. The Court disagrees.
One of the threshold requirements for the admissibility of expert opinion
testimony under Rule 702 is that the “expert’s scientific, technical, or other
specialized knowledge” must constitute something “more than subjective belief or
unsupported speculation.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 590 (1993). Thus, where an expert fails to demonstrate that a particular
10

opinion is more than a mere subjective belief, unsupported speculation, or a bald
conclusion, the opinion is subject to exclusion under Rule 702. Claar v.
Burlington Northern Railroad Company, 29 F.3d 499, 502 (9th Cir. 1994);
Flagstone Development, LLC v. Joyner, 2011 WL 5040663, *2 (D. Mont. 2011).
Here, Mr. Cordes expressly states that his belief about the reason why
Barcus chased Hardesty is “pure conjecture.” That Barcus may have decided to
chase Hardesty because he neglected to get Hardesty’s name is nothing more than
unsupported speculation by Mr. Cordes. Defendants’ motion is granted in this
respect.
e.

Barcus’s Discipline for Subsequent Conduct

In August 2010, well after the encounter between Barcus and Hardesty,
Barcus was involved in an unrelated incident at Scotty’s Bar in Kalispell,
Montana, while he was off duty. Barcus was allegedly involved in a physical
altercation at the bar, and the Highway Patrol disciplined Barcus for that conduct.
Defendants move to exclude statements Mr. Cordes made about Barcus’s
conduct at Scotty’s Bar. Specifically, Mr. Cordes, purportedly referring to the
August 2010 incident, stated as follows:
Although it occurred after the arrest of Mr. Hardesty, the behavior exhibited
by Trooper Barcus, which resulted in his receipt of a “pre-termination”
notice or warning, did not surprise me. The irony of his reflecting upon the
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loss of a fellow MHP trooper—killed by a drunk driver—by drinking
excessively is inexcusable.

Dkt. 76-3 at 4 of 8. Defendants object to Mr. Cordes’s statements that Barcus’s
behavior at the bar “did not surprise” him, and that Barcus’s excessive drinking at
the bar is “inexcusable.” Hardesty, however, does not oppose this aspect of
Defendants’ motion.
The Court agrees that Mr. Cordes’s statements characterizing Barcus’s
conduct in August 2010 are inadmissible at the trial in this matter. The statements
are subjective beliefs that will not “help the trier of fact to understand the evidence
or to determine a fact in issue[.]” Fed. R. Evid. 702(a). Defendants’ motion is
granted in this respect.
2.

Susan Day, Ph.D.

Defendants move to exclude all of the testimony of Hardesty’s expert
witness, Susan Day, Ph.D. They assert Dr. Day is not sufficiently qualified as an
expert to render opinions relative to: (1) the psychological screening that law
enforcement agencies conduct of individuals applying for law enforcement jobs
prior to extending an offer of employment to the individual; and (2) the propriety
of the Highway Patrol and Tooley’s decision to hire Barcus in view of the Risk
Assessment Profiles that were prepared relative to Barcus’s job applications.
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As demonstrated in the parties’ briefs relative to Dr. Day’s testimony, it is
evident that Dr. Day’s testimony is relevant only to the issue of the Highway
Patrol and Tooley’s decision to hire Barcus. Because the Court has recommended
that Tooley be dismissed, Dr. Day’s testimony is no longer relevant to any other
remaining issue. Therefore, Defendants’ motion to exclude Dr. Day’s testimony is
moot and, on that basis, denied.
3.

Other Incidents of Barcus’s Conduct

Defendants move to exclude, as impermissible character evidence, evidence
of other acts by Barcus. Specifically, Defendants move to preclude evidence of
citizens’ complaints made against Barcus relative to specific incidents of his
conduct, and evidence of an altercation in which Barcus was involved at Scotty’s
Bar in Kalispell, Montana, in August 2010.
a.

Citizens’ Complaints

Hardesty argues only that evidence of other citizens’ complaints about
Barcus is relevant to his claims that Tooley and the Highway Patrol failed to
properly supervise Barcus. Based on the Court’s recommendation that those
claims be dismissed, the evidence is no longer relevant to any factual issue
remaining in this matter. Consequently, Defendants’ motion is denied as moot.

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b.

Scotty’s Bar

Barcus was involved in an altercation at Scotty’s Bar on the night of August
26, 2010, and the early morning hours of August 27, 2010. The Highway Patrol
investigated the incident and disciplined Barcus for his conduct.
Defendants argue the evidence regarding the situation at Scotty’s Bar is
inadmissible. They contend it is irrelevant to the matters in this case under Fed. R.
Evid. 402, and is inadmissible under Fed. R. Evid. 404(b) as improper evidence of
Barcus’s other acts. Defendants also argue the evidence is inadmissible because
any probative value it may have is outweighed by its unfair prejudice, and it would
confuse the issues at trial, mislead the jury, and constitute a waste of time under
Fed. R. Evid. 403.
Hardesty argues the evidence of Barcus’s alleged aggressive and assaultive
behavior at Scotty’s Bar is admissible and relevant to his claims for assault and for
malicious acts or omissions under Montana law. Hardesty offers two alternative
arguments. First he asserts the evidence is admissible under Fed. R. Evid.
404(b)(2) because it demonstrates the intentional nature of Barcus’s conduct
during the course of his encounter with Hardesty. Second, he argues the evidence
is admissible for impeachment purposes to rebut Barcus’s contention that he was
in fear for his life during his altercation with Hardesty, and to show instead that he
14

does not hesitate to engage in physical fights.1
As to Hardesty’s first argument, evidence of an unrelated incident may be
admissible as relevant to show a defendant’s intent with respect to the conduct at
issue, but only if the requirements under Rule 404(b) are satisfied. Walters v.
Maass, 45 F.3d 1355, 1357-58 (9th Cir. 1995). Here, the admissibility of the
Scotty’s Bar incident hinges, in the first instance, on whether or not Barcus’s
intent in striking Hardesty is actually at issue. If Barcus were to deny that he
intentionally struck Hardesty — which does not appear to be the case — then his
intent would be at issue thereby rendering the Scotty’s bar incident potentially
relevant. See e.g. United States v. Ortiz, 857 F.2d 900, 902-04 (2nd Cir. 1988) cert.
denied 489 U.S. 1070 (1989).
Hardesty’s second argument falls flat under Rule 404(a) and (b)(1) because
evidence of the Scotty’s Bar incident — if elicited by Hardesty in the first instance
— would be offered for no other purpose than to prove that in his encounter with
Hardesty, Barcus acted in accordance with the purported character trait of physical
aggressiveness. This is not to say that during the course of trial Barcus may open
1

Hardesty also argues the evidence of the incident at Scotty’s Bar supports
his claim that Tooley is liable for hiring Barcus. Again, since the Court
recommends that the claims against Tooley be dismissed, the evidence is no longer
relevant for the purpose asserted by Hardesty. Therefore, this aspect of the
Defendants’ motion is denied as moot.
15

the door to the admissibility of evidence of the incident — but whether he does
remains to be seen.
4.

Other Alleged Bad Acts Committed by the Highway Patrol
and its Troopers

Defendants move in limine to exclude, as irrelevant and prejudicial,
evidence of other incidents in which Highway Patrol Troopers allegedly used
excessive force against other citizens. But, Hardesty argues only that the evidence
of these other incidents is necessary to establish Tooley’s liability for failing to
property supervise Barcus and other Highway Patrol Troopers. Therefore, since
the evidence is now moot in view of the Court’s recommendation that Tooley be
dismissed, Defendants’ motion as to that evidence is denied as moot.
5.

Evidence Contradicting Hardesty’s Criminal Convictions

As a result of Hardesty’s conduct in the underlying encounter with Barcus,
Hardesty pled no contest to the criminal offenses of resisting arrest in violation of
Mont. Code Ann. § 45-7-301, assault resulting in bodily injury in violation of
Mont. Code Ann. § 45-5-201, and criminal possession of dangerous drugs in
violation of Mont. Code Ann. § 45-9-102. Therefore, under authority of Heck v.
Humphrey, 512 U.S. 477 (1994) which holds that a claim under 42 U.S.C. § 1983
is barred if the success of the claim would imply the invalidity of a criminal

16

conviction, Defendants argue that Hardesty is precluded from presenting any
evidence, testimony or argument that contradicts any of his conduct that supports
his criminal convictions, or implies that those convictions are invalid.
The holding in Heck, however, presents a rule barring the prosecution of a
section 1983 claim, and it does not create a rule as to the admissibility of evidence,
or “serve as an evidentiary bar.” Simpson v. Thomas, 528 F.3d 685, 691, 695 (9th
Cir. 2008). Therefore, if a plaintiff’s section 1983 claim is not barred by Heck,
then “relevant evidence may not be barred under the rule announced in Heck.”
528 F.3d at 691. “Heck is not an evidentiary doctrine.” Id. at 696.
The Court has already concluded Hardesty’s claims in this case are not
barred by Heck. Dkt. 41. Consequently, the holding in Heck does not serve as a
rule governing the admissibility of any evidence Hardesty seeks to present.
Defendants concede the existence of this limitation on the holding in Heck as
found in Simpson. Therefore, Defendants’ motion is denied in this respect.
Defendants, however, maintain that any evidence that Hardesty did not
commit the offenses for which he was convicted should be excluded as
speculative, unsupported and prejudicial under Fed. R. Evid. 403. Rulings as to
the admissibility of any specific evidentiary matter relative to facts supporting
Hardesty’s convictions will be resolved by the presiding District Judge as they
17

arise at trial, and in the context of the evidence presented at trial.
6.

Evidence Suggesting Barcus Planted Evidence to
Incriminate Hardesty

Defendants move to preclude Hardesty from arguing that Barcus planted
evidence of methamphetamine drugs in Hardesty’s personal belongings to falsely
incriminate Hardesty in the offense of the criminal possession of dangerous drugs.
Specifically, Defendants refer to a segment of the video recording from Barcus’s
patrol car camera which shows Barcus throwing an object into the back of
Hardesty’s car.
Hardesty concedes he will not seek to establish that Barcus planted evidence
on him. Therefore, Defendants’ motion is granted in this respect. Hardesty is
precluded from arguing, or using evidence to suggest that, Barcus planted
incriminating evidence on Hardesty.
Nonetheless, Hardesty argues that he may still use the patrol car video
evidence to challenge the professionalism of Barcus’s conduct in throwing an
object in the back of Hardesty’s car. The relevance and admissibility of Barcus’s
conduct reflected in the video for the purpose of resolving any fact or issue at trial
will be addressed by the presiding District Judge in the context of the trial in this
matter.

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7.

Code of Silence

Defendants move to preclude Hardesty from presenting argument or
evidence generally referring to “a ‘code of silence,’ ‘blue shield,’ ‘group think,’ or
a culture of wrongdoing and cover-ups within the [Highway Patrol], or in
conspiracy with other law enforcement agencies.” Dkt. 76 at 27. Defendants
contend there exists no evidence in this case of any such alleged circumstances.
Hardesty concurs that arguments and evidence of the code of silence, per se,
is inadmissible. Therefore, Defendants’ motion is granted as to the code-ofsilence matters identified in their motion.
Notwithstanding, Hardesty argues he should be permitted to challenge any
particular law enforcement witness’s credibility by eliciting testimony concerning
the witness’s unwillingness to testify about a fellow law enforcement officer’s
conduct. The relevance and propriety of the line of questioning suggested by
Hardesty will be addressed by the presiding District Judge in the context of the
trial.
8.

Evidence of Insurance or Indemnification

Hardesty does not object to Defendants’ motion to exclude evidence as to
the existence of any insurance against, or indemnification for, Barcus’s asserted
liability in this case. The evidence is barred by Fed. R. Evid. 411. Defendants’
19

motion is granted in this respect.
B.

Hardesty’s Motion in Limine
1.

Hardesty’s Crimes, Wrongs or Other Acts

Hardesty moves to exclude evidence of his prior, unrelated criminal
convictions, and alleged incidents of his physically assaultive behavior. In
response, Barcus argues the incidents to which Hardesty refers are admissible
under Fed. R. Evid. 404(b)(2) for the purpose of proving Hardesty’s bias, motive,
or knowledge.2 Barcus, however, has failed to establish any of the prior incidents
are admissible for the asserted purposes.
The Federal Rules of Evidence prohibit the admission of evidence of a
party’s other acts, except for limited purposes.
Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person
acted in accordance with the character.
Fed. R. Evid. 404(b)(1). The Federal Rules, however, permit the use of evidence
of other acts for limited purposes such as for “proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2).

2

Barcus concedes he is not relying upon Fed. R. Evid. 609 for the admission
of evidence of Hardesty’s prior convictions.
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The Ninth Circuit consistently follows a four-part test to determine whether
certain evidence is admissible under Rule 404(b)(2):
Such evidence may be admitted if: (1) the evidence tends to prove a material
point; (2) the other act is not too remote in time; (3) the evidence is
sufficient to support a finding that defendant committed the other act; and
(4) [...] the act is similar to the offense charged.
United States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012). The proponent of the
evidence of other acts bears the burden of demonstrating the evidence is
admissible under the four-part test. Bailey, 696 F.3d at 799; Ellis v. Navarro,
2012 WL 3580284, *3 (N.D. Cal. 2012). Finally, if the circumstances surrounding
the evidence satisfy the four-part test, then the court must proceed to determine
whether its probative value is substantially outweighed by the prejudicial impact
of the evidence under Fed. R. Evid. 403. Bailey, 696 F.3d at 799.
Barcus’s argument in support of the admissibility of Hardesty’s criminal
convictions and the specific incidents of Hardesty’s alleged assaultive behavior is
conclusory. He does not describe the details of any of the prior incidents or
convictions and, therefore, he has not satisfied his burden of demonstrating that
the evidence is admissible under the four-part test of the analysis under Rule
404(b)(2).
Alternatively, Defendants argue evidence of the prior incidents and

21

convictions may become relevant and admissible if, at trial, Hardesty suggests to
the jury that he has always been a peaceful and law-abiding citizen. The
admissibility of the evidence for that purposes will be reserved for resolution by
the presiding District Judge in the context of the evidence presented at trial.
2.

Hardesty’s Use and Possession of Drugs on April 22, 2009

Hardesty moves to exclude evidence of his use and possession of drugs on
April 22, 2009, the date of the underlying arrest. Specifically, Hardesty moves to
exclude evidence of (1) a urine drug test reflecting the presence of
methamphetamine and ecstasy3 — a urine test that was performed at the Kalispell
Regional Medical Center emergency room after Hardesty was arrested, and (2) a
contact lens case that contained methamphetamine that was found in Hardesty’s
personal belongings during an inventory search at the jail.
a.

Strength of the Evidence of Methamphetamine and
Ecstacy Drugs

Hardesty first suggests, without any scientific support, that the urine test
conducted in the emergency room is “not entirely reliable” simply because it “was
3

With respect to evidence of the presence of ecstasy in Hardesty, he cites
only to the results of the emergency room urine test. Dkt. 85-2 at 6 of 7. Barcus,
however, only emphasizes the evidence reflecting the presence of
methamphetamine. Nonetheless, to the extent Hardesty’s motion is directed at
excluding evidence of both ecstasy and methamphetamine, the ruling on the
motion is inclusive of the evidence of both drugs.
22

a preliminary, qualitative test conducted in a hospital lab[.]” Dkt. 84 at 13.
Hardesty’s conclusory argument and mere assertion in this regard is insufficient to
establish that the test results are, in fact, unreliable.
Hardesty next argues that the evidence of the contact lens case is weak
because Defendants cannot properly establish the chain of custody for that
evidence. Hardesty argues there is no witness who can testify as to who found the
lens case on Hardesty, or how the lens case got in with a bag of Hardesty’s
possessions at the jail.
Hardesty’s suggestion that there are missing links in the chain of custody of
the lens case does not warrant exclusion of the evidence. Any alleged defects in
the chain of custody, or in the explanation of how the lens case was found in
Hardesty’s possessions, go to the weight of the evidence, not its admissibility.
United States v. Matta-Ballesteros, 71 F.3d 754, 769 (9th Cir. 1995).
b.

Relevance of Drug Use Evidence — Barcus’s Lack of
Knowledge of Hardesty’s Drug Use

Hardesty argues that evidence of the positive methamphetamine urine test
and the contact lens case is inadmissible because it is irrelevant under the
circumstances of this case. Hardesty argues the evidence is irrelevant because at
the time of Barcus’s encounter with Hardesty, Barcus did not know that Hardesty

23

would later test positive for drug use, or that the lens case would later be found in
Hardesty’s possessions. Therefore, Hardesty asserts the evidence is irrelevant to
his excessive force claim because a law enforcement officer’s conduct in using
force is evaluated under a standard of objective reasonableness under the
circumstances present at the time of the arrest. Torres v. City of Madera, 648 F.3d
1119, 1123 (9th Cir. 2011) (citing Graham v. Connor, 490 U.S. 386, 397 (1989)).
Hardesty’s argument, however, is insufficient to warrant exclusion of the
evidence.
A claim of excessive force requires an evaluation of the totality of the
circumstances surrounding the use of force, including the suspect’s “mental and
emotional state[.]” Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010). In
this regard, evidence of a subsequent drug test demonstrating that a suspect was
under the influence of drugs may prove relevant in assessing the totality of the
circumstances depending on the totality of the evidence pertaining to Hardesty’s
conduct at the time of the underlying incident. Id. Therefore, Hardesty’s motion
is denied at this juncture subject to his right to renew the motion in the context of
trial.

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c.

Barcus and Mark Muir’s Testimony of Hardesty’s
“Superhuman Strength”

Hardesty moves to exclude testimony from both Barcus and his expert
witness, Mark Muir, describing Hardesty as having “superhuman strength” during
the course of Barcus’s encounter with Hardesty. On April 25, 2009, Barcus
prepared his Report of Arrest regarding the encounter on April 22, 2009. In his
report Barcus described Hardesty’s behavior and stated that, based on his “training
and experience”, he believed Hardesty:
exhibited numerous indicators of someone who is under the influence of
illicit drugs [...] including:
[...]
•

his unbelievably rigid body and superhuman strength including
dragging the weight of 3 men several inches at a time with 1
arm[.]

Dkt. 86-1 at 3-4 of 4.
Similarly, Mark Muir prepared his expert opinion report in which he recited
facts of the encounter between Barcus and Hardesty reported to Mr. Muir and “as
they are understood by” Mr. Muir. Dkt. 86-2 at 10 of 12. In that description of
the incident, Mr. Muir described Hardesty as having “displayed amazing strength
in resisting” Barcus. Dkt. 86-2 at 11 of 12.
Hardesty specifically moves to preclude Barcus and Mark Muir from
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presenting testimony that Hardesty’s alleged superhuman or amazing strength was
due to his use of methamphetamine drugs. He objects to those statements on the
ground that neither Barcus nor Mr. Muir are qualified as experts capable of
expressing an opinion as to any causal connection between methamphetamine use
and a person’s increased strength.
Barcus makes the bare assertion that he and Mr. Muir are properly qualified
“given their specific training and experience in dealing with individuals under the
influence of illegal drugs, including methamphetamines.” Dkt. 93 at 16 of 29.
Barcus does not, however, identify any details of their training and experience that
would qualify them as experts on the subject of whether methamphetamine use can
cause a person to have increased strength. Therefore, Barcus has not met his
burden of establishing, by a preponderance of the evidence, that he and Mr. Muir
are qualified as experts to provide that specific expert opinion testimony. See
Todd v. Baker, 2012 WL 1999629, *1 (D. Mont. 2012). Hardesty’s motion is
granted in this respect.
3.

Testimony Regarding Effects of Methamphetamine on
Human Behavior in General

Hardesty moves to exclude testimony from any witness describing the
possible effects of the use of methamphetamine on human behavior. In general, he

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argues that to the extent any witness seeks to identify other possible effects of the
drug that Hardesty did not exhibit on April 22, 2009, that testimony is irrelevant to
the facts of this case and inadmissible. He argues Barcus cannot attempt to
attribute certain effects of methamphetamine use to Hardesty if Hardesty himself
did not exhibit those behaviors.
a.

Dr. Burry’s Testimony Regarding Effects of
Methamphetamine on Other Patients

After Hardesty was arrested he was taken to the Kalispell Regional Medical
Center and treated by Dr. Scott Burry in the emergency room. In his deposition,
Dr. Burry described a variety of behaviors that people might display as a result of
being under the influence of ecstasy or methamphetamine. Specifically, Dr. Burry
testified that people who are under the influence of those drugs are wild, cranked
up, wide-eyed, crazy, fighting and screaming. Dkt. 86-3 at 9 of 45. Additionally,
Dr. Burry confirmed that it is very common for people who are on those drugs to
be strong, as if they have superhuman strength, due to “a huge adrenergic surge”
in a person’s body. Dkt. 86-3 at 43-44 of 45. Dr. Burry testified he has observed
these characteristics in other patients that he has seen in the emergency room.
Hardesty argues that the foregoing characteristics and behaviors that Dr.
Burry described in his deposition are irrelevant and inadmissible since Dr. Burry

27

did not observe Hardesty behaving in those ways. Therefore, Hardesty moves for
an order limiting Dr. Burry’s testimony to a description of only those
methamphetamine-caused behaviors he personally observed in Hardesty.
Hardesty does not challenge Dr. Burry’s qualifications as an expert relative to any
behaviors that he personally observed Hardesty exhibiting.
The parties do not identify the capacity in which Barcus proposes to have
Dr. Burry testify — they do not specify whether Dr. Burry will testify in his
capacity as a treating physician, or whether Barcus has properly disclosed Dr.
Burry as an expert witness as required under Fed. R. Civ. P. 26(a)(2)(A) and (B).
Absent that clarification from the parties, Dr. Burry can only testify in his
capacity as a treating physician. A treating physician is exempt from the
mandatory expert witness disclosure requirements of Rule 26(a)(2)(B), “unless the
testimony offered by the treating physician goes beyond care, treatment, and
prognosis[.]” St. Vincent v. Werner Enterprises, Inc., 267 F.R.D. 344, 345 (D.
Mont. 2010). Thus, a treating physician’s permissible testimony is limited to
matters of personal knowledge he or she acquired “through his or her ‘treatment’
of the patient.” Id. 267 F.R.D. at 346.
The October 5, 2011 scheduling order issued in this case confirms this
limitations on a treating physician’s testimony in the absence of a proper
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disclosure and expert report required by Rule 26(a)(2)(B). Dkt. 11 at 5.
Here, Dr. Burry’s proposed testimony describes behaviors and
characteristics caused by the use of ecstasy and methamphetamine that he has
observed in other patients. Clearly, that testimony is based on knowledge Dr.
Burry acquired outside of the course of his treatment of Hardesty at the emergency
room on April 22, 2009. Therefore, the testimony is beyond the scope of his care,
treatment, and prognosis provided to Hardesty, and must be excluded at trial
absent a proper Rule 26(a)(2)(B) expert disclosure and report. Hardesty’s motion
is granted in this respect.
b.

Testimony From Other Witnesses Regarding
“Superhuman Strength”

Hardesty moves to preclude all experts identified in this case from testifying
that methamphetamine can cause a person to have “superhuman strength.”
Specifically, Hardesty asserts Barcus cannot elicit testimony from Hardesty’s
experts (Will Cordes, Dr. Beck, and Dr. Rosen), and Barcus’s expert (Mark Muir)
regarding alleged superhuman strength caused by methamphetamine. Hardesty
argues these witnesses are not qualified to render an expert opinion on the matter,
but he does not rely on any details as to these experts’ qualifications. Instead, he
simply asserts that only pharmacologists or toxicologists are sufficiently qualified

29

to testify as to the effects of methamphetamine on human behavior, and none of
the referenced experts are pharmacologists or toxicologists.
Of the four experts referenced in Hardesty’s motion, Barcus addresses only
Mr. Muir’s qualifications. But Barcus does not identify any evidence of Mr.
Muir’s actual qualifications. Instead, Barcus merely asserts, through counsel’s
statements in the response brief, that Mr. Muir is “qualified to offer the testimony,
given [his] specific training and experience in dealing with individuals under the
influence of illegal drugs, including methamphetamine.” Dkt. 93 at 16 of 29.
Counsel’s statements in a brief, however, are not sufficient to satisfy Barcus’s
burden of establishing that Mr. Muir is, in fact, qualified as an expert on the topic
of whether methamphetamine can cause a person to have “superhuman strength.”
See Todd v. Baker, 2012 WL 1999629, *1 (D. Mont. 2012) (concluding that the
burden of establishing the admissibility of an expert witness’s opinion is upon the
proponent of the testimony), and Groves v. Croft, 2011 WL 5509028, *5 (D.
Mont. 2011) (same). Therefore, Hardesty’s motion with respect to Mr. Muir is
granted, subject to Barcus’s opportunity to satisfy the trial court that Mr. Muir is,
in fact, qualified as an expert in that specific area of expertise.
Barcus does not attempt to establish that Will Cordes, Dr. Beck, or Dr.
Rosen are qualified as experts on the topic of superhuman strength caused by the
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use of methamphetamine. Consequently, Hardesty’s motion is granted in this
respect.
4.

Hardesty’s Long-Term Brain Damage Caused by
Methamphetamine Use

Hardesty moves to preclude Barcus from suggesting that Hardesty’s use of
methamphetamine on April 22, 2009, could have caused his alleged long-term
brain damages. Hardesty argues there is no other evidence of his use of
methamphetamine drugs on any other occasion and, therefore, he suggests the
evidence of his alleged one-time use of the drug is insufficient to constitute a
cause of his brain damages.
Hardesty’s motion lacks merit. He has presented no medical evidentiary
basis for his suggestion that his alleged single use of methamphetamine on one
occasion could not have caused his brain injuries. To the contrary, to the extent
Barcus can establish through expert medical testimony that Hardesty’s alleged
brain damage is caused by his use of methamphetamine, even one time, he is
permitted to present that evidence to the jury. Hardesty’s motion is denied in this
respect.
5.

Dr. Reed’s Statements Regarding Malingering and
Hardesty’s Other Negative Characteristics

Hardesty moves to exclude certain testimony from Dr. Mary Beth Reed, a
31

licensed clinical psychologist that Hardesty initially disclosed as one of his expert
witnesses. Hardesty, however, later determined he would not use Dr. Reed at trial.
Hardesty requests the Court preclude Barcus from eliciting testimony from
Dr. Reed regarding Hardesty’s various characteristics. Specifically, he seeks to
exclude information in Dr. Reed’s medical records regarding (1) his alleged traits
of a serial killer, (2) his alleged felony convictions prior to age 12, (3) his
description of himself as “a little bastard,” (4) his opinion that others have
conspired against him, and (5) his failure to take responsibility for himself.
Hardesty contends these matters constitute inadmissible evidence of his character
or character traits barred by Fed. R. Evid. 404(a)(1).
Barcus does not advocate for the admission of any of the specific matters
identified in the preceding paragraph. Therefore, Hardesty’s motion is granted as
to those matters under Rule 404(a)(1).
Hardesty next argues that Barcus should not be permitted to present
testimony from Dr. Reed suggesting that Hardesty should receive further testing
for malingering. Dr. Reed did not reach a definitive conclusion that Hardesty was
malingering, but she suspected he was which is why she recommended Hardesty
undergo further testing for malingering. Hardesty contends Dr. Reed’s
recommended referral for malingering is inadmissible because it constitutes
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impermissible evidence of his character that is barred under Fed. R. Evid.
404(a)(1). He also argues Dr. Reed’s recommendation is inadmissible expert
testimony precluded under Fed. R. Evid. 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Barcus retorts that Dr. Reed’s testimony is admissible as expert opinion
testimony under Fed. R. Evid. 702. The Court disagrees.
The specific testimony of Dr. Reed in dispute is her statement that she was
suspicious or concerned that Hardesty may be malingering. Dkt. 93-2 at 9-11 of
23. But the statement was not made to a reasonable degree of medical certainty or
probability. Thus her statement is speculative in nature. Rule 702 does not permit
the admission of expert opinion testimony that is nothing more than “subjective
belief or unsupported speculation.” Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 590 (1993). Therefore, Dr. Reed’s recommendation that
Hardesty be referred for further testing for malingering is inadmissible, and
Hardesty’s motion is granted in this respect.
6.

Dr. Burry’s Opinion Regarding Mild Traumatic Brain
Injury

Dr. Burry testified in his deposition that he evaluated Hardesty for signs and
symptoms of a traumatic brain injury. He confirmed that upon review of

33

Hardesty’s CT scan and lab studies, his exam of Hardesty’s mental status, and his
observation of Hardesty, he did not “find any objective medical findings that Mr.
Hardesty suffered a traumatic brain injury” on April 22, 2009. Dkt. 93-1 at 9 of
21.
Hardesty moves to preclude Dr. Scott Burry from testifying as to his opinion
that Hardesty did not suffer a mild traumatic brain injury. Hardesty challenges the
admissibility of that opinion on three fronts. First, he contends Dr. Burry has
limited knowledge about, and lacks expertise in, the medical fields related to brain
injuries. Second, Hardesty asserts Dr. Burry reached his conclusion based only on
his insufficient, limited knowledge of Hardesty’s medical history acquired solely
from his course of treatment provided to Hardesty in the emergency room on April
22, 2009. Finally, Hardesty argues Dr. Burry’s conclusion is scientifically
unreliable under Daubert. Specifically, Hardesty identifies evidence which he
believes demonstrate that he did suffer a brain injury and, therefore, Dr. Burry’s
opinion is “medically wrong” and contrary to the evidence. Dkt. 84 at 36-37.
Treating physicians are permitted to testify as to opinions formed during the
course of their treatment and diagnosis of a patient. See Goodman v. Staples The
Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) (concluding a treating
physician is exempt from the Rule 26(a)(2)(B) written report requirement to the
34

extent the treating physician’s opinions were formed during the course of
treatment). A treating physician may testify to opinions “based on personal
knowledge, history, treatment of the patient, and facts of his or her examination
and diagnosis[.]” St. Vincent v. Werner Enterprises, Inc., 267 F.R.D. 344, 345 (D.
Mont. 2010). Hardesty’s challenges to the merits of Dr. Burry’s opinion speak
only to the weight of his opinion, not its admissibility. And Hardesty may test the
strength of Dr. Burry’s opinion through cross examination. Therefore, Hardesty’s
motion is denied in this respect.
III.

CONCLUSION
For the reasons stated, the parties’ motions are granted in part, and denied in

part. IT IS SO ORDERED.
DATED this 26th day of November, 2012.

Jeremiah C. Lynch
United States Magistrate Judge

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