Harrigan v. Marion County et al

Filing 102

Opinion and Order - The parties' motions in limine and other evidentiary matters raised in Dkts. 53 , 74 , 79 , 81 , 82 , 86 , and 87 are GRANTED IN PART and DENIED IN PART as set forth in this Opinion and Order. Signed on 9/18/2013 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DANIEL HARRIGAN, by and through his
guardians CAROLE HARRIGAN and
RANDY HARRIGAN,

Case No. 6:11-cv-06174-SI

Plaintiff,
OPINION AND ORDER
v.
MARION COUNTY, et al.,
Defendants.
J. Ashlee Albies and Michael Rose, Creighton & Rose, P.C., 500 Yamhill Plaza Building,
815 S.W. Yamhill Plaza Building, Portland, OR 97204. Attorneys for Plaintiff.
Andrea D. Coit and Jeffery J. Matthews, Harrang Long Gary Rudnick P.C., 360 East 10th
Avenue, Suite 300, Eugene, OR 97401. Attorneys for Defendants.
Michael H. Simon, District Judge.
Daniel Harrigan (“Plaintiff”), by and through his guardians Carole Harrigan and Randy
Harrigan, bring this action against Defendants Marion County and four of its deputy sheriffs,
Jason Bernards, Stacy Rejaian (formerly Stacy Lucca), Jeffrey Stutrud, and T. Shane Burnham.
Plaintiff alleges four claims for relief: (1) violation of the Fourth Amendment under 42 U.S.C.
§ 1983 (excessive force, by the individual Defendants); (2) violation of the Fourth Amendment
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under 42 U.S.C. § 1983 (failure to train and ratification of policies or practices exhibiting
deliberate indifference to constitutional rights, by Marion County); (3) disability discrimination
in violation of the Americans with Disabilities Act under 42 U.S.C §§ 12131-12165 (by Marion
County); and (4) abuse of a vulnerable person under Or. Rev. Stat. § 124.100(2) (by Marion
County). 1 A jury trial is scheduled to begin on September 30, 2013. This Opinion and Order
addresses the parties’ pending motions in limine and other evidentiary objections. Dkts. 53, 74,
79, 81, 82, 86, and 87.
BACKGROUND
Plaintiff Daniel Harrigan is a 24-year-old man with Autism Spectrum Disorder. In 2010,
he resided at MacLeay House in Salem, Oregon, an assisted-living facility for individuals with
special needs. On September 21, 2010, Mr. Harrigan was in an agitated state, and a MacLeay
House staff member was injured trying to calm Mr. Harrigan. Another staff member called 911,
requesting assistance.
The members of the Marion County Sheriff’s Department who responded to that 911 call
included the four individual Defendants in this case: Deputy Jason Bernards, Deputy Stacy
Rejaian (formerly, Stacy Lucca), Deputy Jeffrey Stutrud, and Sergeant Shane Burnham
(collectively, the “Deputies”). When the Deputies arrived at the MacLeay House, along with
emergency medical technicians (“EMTs”), MacLeay staff members allegedly told the Deputies
about Mr. Harrigan’s autism and that he would not be capable of responding to commands of law
enforcement officers.

1

Plaintiff previously alleged claims for common law battery and discrimination based on
disability under 29 U.S.C. § 701 and Or. Rev. Stat. § 659A.142, but has withdrawn these claims.
Dkts. 49 and 98.
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When the Deputies entered MacLeay House, Mr. Harrigan did not comply with their
orders. Deputy Bernards fired three rounds from a beanbag shotgun, and Deputy Stutrud
commanded and released a police dog, also known as a police K-9, all as part of the Deputies’
efforts to take Mr. Harrigan into custody.
The Deputies allegedly tackled Mr. Harrigan, handcuffed him, and took him into custody.
Because Mr. Harrigan suffered lacerations, allegedly from being bitten by the police dog, and
contusions, allegedly from being hit by bean-bag bullets, the Deputies directed that Mr. Harrigan
be taken to a nearby hospital to be treated for his injuries. While at the hospital, the Deputies, at
some point in time, agreed to release Mr. Harrigan into the custody of his caregivers, and cited
Mr. Harrigan for Assault IV (two counts) and Resisting Arrest (one count).
Mr. Harrigan alleges that as a result of the Defendants’ actions, he suffered severe
emotional distress and trauma and a violation of his constitutional rights under the Fourth
Amendment to be free from an unreasonable search and seizure. He further alleges that Marion
County’s policies and practices regarding law enforcement officers caused Mr. Harrigan’s
injuries, and that reasonable officers in the position of the Deputies should have known that their
conduct violated a clearly established right.
Plaintiff’s first claim is brought only against Defendants Bernards, Rejaian (formerly,
Lucca), Stutrud, and Burnham under 42 U.S.C. § 1983. Plaintiff alleges that these Defendants
violated Plaintiff’s rights under the Fourth Amendment by using excessive force against him.
Plaintiff’s second claim, also brought under 42 U.S.C. § 1983, is only against Defendant Marion
County. Plaintiff alleges that Marion County’s policies or customary practices resulted in the
violation of his constitutional right not to have excessive force used against him. Plaintiff’s third
claim is brought only against Defendant Marion County. Plaintiff alleges that Marion County

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failed to accommodate Plaintiff’s disability and discriminated against him based on his
disability, in violation of the federal Americans with Disabilities Act. Plaintiff’s fourth claim is
brought only against Defendant Marion County under Oregon’s vulnerable person statute.
Plaintiff alleges that he is a vulnerable person and that Defendant Marion County, through the
actions of its employees, specifically, the individual Defendants, caused or permitted acts of
physical abuse against Plaintiff. In response to Plaintiff’s claim alleging abuse of a vulnerable
person, Defendant Marion County raises the affirmative defense of justification. Defendants
dispute many of Plaintiff’s factual allegations and legal conclusions.
DISCUSSION
A. Plaintiff’s Motions in Limine (Dkt. 53)
1. Motion for a narrow application of FRE 611(b)
GRANTED IN PART and DENIED IN PART. Several witnesses are identified in both
Plaintiff’s witness list and Defendants’ witness list. In the interest of efficiently trying this case
before a jury, if during Plaintiff’s case-in-chief Defendants desire to go beyond the scope of
Plaintiff’s direct examination and conduct their own direct examination of a non-named party
witness called by Plaintiff after Plaintiff’s direct examination and Defendants’ cross-examination
conclude, Defendants will be allowed to do so with non-leading questions in lieu of recalling that
witness during Defendants’ case-in-chief. This ruling does not apply to the named Defendant
witnesses called by Plaintiff.
2. Motion to exclude the playing or transcript of the 911 call
GRANTED, with leave to request reconsideration for rebuttal or impeachment purposes.
Plaintiff moves to exclude any recording or transcript of the 911 call made by the MacLeay staff
member who reported the incident with Mr. Harrigan. Plaintiff alleges that the Deputies did not
hear the 911 call before responding to the scene, but instead relied on the information conveyed
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by the dispatcher. Because of this, Plaintiff argues that the call is not relevant to the Deputies’
state of mind in responding to Mr. Harrigan, and that the call is unduly prejudicial under FRE
403. Plaintiff further argues that a recording or transcript of the 911 call would contain hearsay
that is inadmissible under FRE 802.
Defendants argue that the 911 call is probative in that it provides context to the radio
traffic between dispatch and the Deputies, and that it counters the Plaintiff’s assertion that the
MacLeay staff member called 911 solely to request medical assistance for the injured staffer.
Additionally, Defendants argue that the MacLeay staff member’s statements are FRE 803(1)
present sense impressions, and that the dispatcher’s statements are not offered for the truth of
matter asserted, and thus, the call is not excludable under FRE 802.
For an out of court statement to be a present sense impression under FRE 803(1), it must
be “nearly contemporaneous with the incident described and made with little chance for
reflection,” and the declarant must have personal knowledge of the events described. Bemis v.
Edwards, 45 F.3d 1369, 1372-73 (9th Cir. 1995). The MacLeay staff member’s statements on the
911 call describe an ongoing emergency incident that she was personally witnessing, and
therefore, are admissible under the FRE 803(1) exception to the hearsay rule.
The statements on the 911 call recording are not, however, relevant to the Deputies’
response to the incident at the MacLeay House. The Deputies did not hear the 911 call before
responding to the scene. As such, currently, the only relevant information regarding the 911 call
is the information conveyed to the Deputies by the dispatcher. See Maples v. Vollmer, 2013 WL
1681234, at *11 (D.N.M. Mar. 31, 2013). Cf. United States v. Colon, 250 F.3d 130, 137 (2d Cir.
2001) (holding that a 911 operator’s knowledge from a 911 call cannot be imputed to police
officers responding to the call).

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Nonetheless, the statements made by the MacLeay staff member on the 911 call are
potentially relevant for impeachment or rebuttal purposes. For example, the statements on the
911 call would be relevant to rebut Plaintiff’s assertion that Mr. Harrigan was completely secure
in a locked room when the 911 call occurred, and that the 911 call was only for medical
assistance for the injured staff member. Insomuch as Plaintiff makes this assertion at trial,
Defendants can use the statements in the 911 call to rebut these assertions. See Maples, 2013 WL
1681234 at *13.
3. Motion to exclude evidence of prior assaults by Plaintiff Daniel Harrigan not
known by the responding officers
GRANTED IN PART, DENIED IN PART. Defendants argue that assaults by Plaintiff
are relevant to Plaintiff’s damages as evidence of potential additional causes of Plaintiff’s
emotional distress. Plaintiff argues that evidence of other assaults are not probative of damages,
as the incident on September 21, 2010 went above and beyond any other incident and at no other
time was Mr. Harrigan shot with a bean bag gun or bitten by a police dog.
Assaults by Mr. Harrigan on others are not, by themselves, relevant to damages in this
case. To be relevant, an incident would need to occur within a relevant time period and involve a
response to Mr. Harrigan’s assault of another that could be expected to trigger emotional distress
in Mr. Harrigan. Such incidents would have a tendency to make Plaintiff’s claim of ongoing
emotional distress resulting from the September 21, 2010 incident more or less probable. See
Mata v. City of Farmington, 798 F. Supp. 2d 1215, 1238 (D. N.M. 2011); see also Halvorsen v.
Baird, 146 F.3d 680, 686 (9th Cir. 1998). Therefore, for each incident of assault by Plaintiff that
Defendants wish to introduce, Defendants must lay a proper foundation that the response to that
assault was such that could potentially cause emotional distress. Further, the Court finds that the
relevant time period for purposes of this type of evidence is September 21, 2009 (twelve months
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before the date of the incident) through the date of trial. The Court has considered Plaintiff’s
concerns regarding the potentially prejudicial effect of such evidence. There is no indication at
this point, however, that the evidence will be so prejudicial as to substantially outweigh its
probative value. See FRE 403; Udemba v. Nicoli, 237 F.3d 8, 15 (1st Cir. 2001); Mata, 146 F.3d
at 686.
4. Motion to exclude evidence of commendations, honors, awards, or other similar
events from the histories of the defendant deputies
GRANTED. Defendants do not object to this motion.
5. Motion to exclude testimony of witnesses or evidence not previously disclosed to
Plaintiff during discovery
GRANTED. Defendants do not object to this motion.
6. Motion to exclude evidence regarding investigation into conduct of Plaintiff’s
expert witness Jack Ryan
GRANTED. Defendants do not object to this motion.
7. Motion to exclude expert opinions on the legal conclusion as to whether the force
used by the defendant deputies was excessive or not.
GRANTED IN PART. Experts will not be permitted to testify regarding the applicable
legal standards; however, opinion testimony regarding whether the force used was reasonable
under the circumstances or whether the force used was excessive will be permitted.
8. Motion to exclude any testimony or evidence of Plaintiff’s “undesirable sexual
behaviors” or any similar conduct.
GRANTED. Defendants do not object to this motion.
9. Motion to exclude testimony or other evidence that a verdict against the
defendants will have an adverse impact on mental health services or Marion
County’s finances.
GRANTED. Defendants do not object to this motion.

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10. Motion to exclude evidence that Plaintiff is on Medicare or Medicaid.
GRANTED. Based on new evidence, Defendants conceded this motion at the pretrial
conference.
11. Motion to exclude evidence related to the good character of defendants Stacy
Lucca, Jason Bernards, Jeffrey Strutrud, T. Shane Burnham
GRANTED IN PART. No evidence shall be elicited or received in violation of FRE 404
or FRE 608.
12. Motion to exclude evidence or testimony of any witness expressing the opinion
that defendants were not discriminatory
GRANTED IN PART, DENIED IN PART. No evidence shall be elicited or received in
violation of FRE 404 or FRE 608. To the extent, however, that Plaintiff contends that Defendants
had a custom or practice of discriminatory conduct, Defendants may offer evidence to rebut that
contention in the form of fact testimony by lay witnesses, or in the form of properly disclosed
expert opinion; lay opinion testimony on this subject shall not be permitted.
13. Motion to exclude evidence of defendants’ compliance with the Americans with
Disabilities Act or the Rehabilitation Act in instances other than the incident at
issue in this case
GRANTED IN PART, DENIED IN PART. No evidence shall be elicited or received in
violation of FRE 404 or FRE 608. To the extent, however, that Plaintiff contends that Defendants
had a custom or practice of violating the Americans with Disabilities Act, Defendants may offer
evidence to rebut that contention in the form of fact testimony by lay witnesses, or in the form of
properly disclosed expert opinion; lay opinion testimony on this subject shall not be permitted.
14. Motion to exclude evidence suggesting that Plaintiff’s autism or developmental
delay is such that it is likely that someone with those conditions would act
aggressively
GRANTED. Defendants do not object to this motion.

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15. Motion to prohibit an expert witness from testifying beyond the four corners of
the report.
GRANTED IN PART, DENIED IN PART. All expert witnesses shall be confined on
direct examination to the material substance of their report in order to prevent unfair surprise.
16. Motion to exclude testimony about the health problems of the police dog Renzo
GRANTED. Defendants do not object to this motion.
17. Motion to require law enforcement officers called as witness to appear in civilian
clothing
DENIED, except that the deputies may not wear their duty belts or sidearms. See Zaken v.
Kelley, 370 Fed. App’x 982 (11th Cir. 2010); Jones v. Ralls, 187 F.3d 848 (8th Cir. 1999); Maus
v. Greening, 2012 WL 4903326 (E.D. Wis. Oct. 15, 2012).
18. Motion to exclude witnesses pursuant to FRE 615
GRANTED. Defendants do not object to this motion. Counsel for Defendant Marion
County may designate a natural person as that Defendant’s representative during trial. In
addition, this exclusion does not apply to any party’s outside expert witnesses.
B. Defendants’ Motions in Limine (Dkt. 74)
1. Motion to exclude Mr. Randy and Ms. Carole Harrigan’s testimony on causation
GRANTED IN PART, DENIED IN PART. Randy and Carole Harrigan may testify as to
what they observed of their son’s behavior and communication before and after the events at
issue in this case, as well as the mental, emotional, or physical conditions of their son that they
observed. Additionally, they may testify as to opinions drawn from these observations, as proper
lay opinion testimony, including that Plaintiff suffered emotional distress and that various
behavioral changes indicate emotional distress. See, e.g., Esteem v. City of Pasadena, 2007 WL
4270360, at *21 (C.D. Cal. Sept. 11, 2007) (“Ms. Simmerman can permissibly testify to her
observations of her children's behavior. She can also testify to opinions drawn from these
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observations.”). Lay opinion testimony must be rationally based on the perception of the witness,
helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue,
and not based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701. Parents
are able to perceive the behavior of their children, and lay opinion testimony “‘traditionally has
been received as to the mental, emotional or physical condition of a person observed by the
witness.’” Id. at *21, n.40 (quoting 29 Charles Wright, et al., Federal Prac. & Proc. § 6225
(2007 online ed.). Further, Courts have recognized that “evidence of the emotional distress
experienced by a child may be received through the lay opinions of the child’s parent.” Esteem,
2007 WL 4270360, at *21 (allowing parent to testify as to emotional distress caused by incident
with police officers); see also Leonard v. Compton, 2005 WL 1460165, at *11 (N.D. Ohio June
17, 2005) (allowing parent to testify as to change in eleven-month old child’s behavior and
emotional well-being after incident at issue). The Harrigans may not, however, testify that the
incident on September 21, 2010, was the cause of their son’s emotional distress.
2. Motion to exclude expert testimony of Genevieve Athens
DENIED. Defendants object to the designation of Ms. Genevieve Athens as an expert,
both based on her qualifications under FRE 702 and because she did not personally examine
Daniel Harrigan and will not testify as to what attributes of autism Daniel Harrigan exhibits. The
Court finds that Ms. Athens is qualified to testify generally regarding autism and where Daniel
Harrigan falls within the autism spectrum. Ms. Athens served as the Executive Director of the
Autism Society of Oregon for eight years and in that role she was the lead information and
referral source for the Society and managed all of its conferences, seminars, and workshops.
Ms. Athens has also provided training to many agencies (including law enforcement and other
public agencies) and companies, and presented at numerous conferences, workshops, and

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seminars. She has her own business as an autism lifespan coach and is a monthly columnist for
an autism-specific magazine.
The fact that Ms. Athens did not examine Daniel Harrigan does not preclude her
testimony. Autism is a complicated disorder that is not within the purview of the average juror.
Ms. Athens’ testimony regarding the general aspects of the disorder may assist jurors in
understanding the disorder.
3. Motion to exclude evidence that Marion County did not have training specific to
autism and post-event evidence of attempts to get Marion County to adopt such
training
DENIED. Defendants argue that evidence that Marion County did not have training
specific to autism should be excluded because Plaintiff has not laid the foundation that such
training is standard for police agencies, and that evidence of efforts by Ms. Harrigan or
Ms. Athens to have Marion County institute additional autism awareness and understanding
measures should similarly be excluded. Defendants cite to no authority that the training at issue
must be standard for police agencies to be admissible, nor that subsequent attempts to encourage
additional training are inadmissible.
The United States Supreme Court has established that a municipality’s alleged
inadequacy in training police officers “may serve as the basis for § 1983 liability only where the
failure to train amounts to deliberate indifference to the rights of persons with whom the police
come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1986). The Supreme Court
further explained that:
The issue in a case like this one, however, is whether that training
program is adequate; and if it is not, the question becomes whether
such inadequate training can justifiably be said to represent “city
policy.” It may seem contrary to common sense to assert that a
municipality will actually have a policy of not taking reasonable
steps to train its employees. But it may happen that in light of the
duties assigned to specific officers or employees the need for more
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or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers
of the city can reasonably be said to have been deliberately
indifferent to the need. In that event, the failure to provide proper
training may fairly be said to represent a policy for which the city
is responsible, and for which the city may be held liable if it
actually causes injury.
Id. at 390 (footnote omitted).
Deliberate indifference from a municipality’s training program may be found where a
program “does not prevent constitutional violations” and the municipality continue to adhere “to
an approach that they know or should know has failed to prevent tortious conduct by employees”
or where there is a “pattern of tortious conduct by inadequately trained employees [that] may
tend to show that the lack of proper training, rather than a one-time negligent administration of
the program or factors peculiar to the officer involved in a particular incident, is the ‘moving
force’ behind the plaintiff's injury.” See Board of County Comm'rs v. Brown, 520 U.S. 397,
407-8 (1997).
“A plaintiff also might succeed in proving a failure-to-train claim without showing a
pattern of constitutional violations where ‘a violation of federal rights may be a highly
predictable consequence of a failure to equip law enforcement officers with specific tools to
handle recurring situations.’” Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006)
(quoting Brown, 520 U.S. at 409). As explained by the Brown Court:
The likelihood that the situation will recur and the predictability
that an officer lacking specific tools to handle that situation will
violate citizens' rights could justify a finding that policymakers'
decision not to train the officer reflected “deliberate indifference”
to the obvious consequence of the policymakers' choice—namely,
a violation of a specific constitutional or statutory right.
Brown, 520 U.S. at 409.

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Thus, evidence of training, or lack of training, is relevant where a plaintiff claims a
pattern of tortious conduct by inadequately trained officers, a training program that fails to
prevent constitutional violations and the employer knows or should know the training program
has failed to prevent tortious conduct, or that a violation of federal rights may be a highly
predicable consequence of the training program. Based on Plaintiff’s Second Amended
Complaint and trial submissions, they are making such arguments and evidence of Marion
County’s training, or lack thereof, relating to persons with autism is relevant and admissible.
With regard to evidence of Plaintiff’s (or others’) attempts to get Marion County to
provide such training, it is relevant and admissible. Post-event evidence that there were no
reprimands, discharges, admissions of error, or changes to policies is admissible evidence. Henry
v. Cnty. of Shasta, 132 F.3d 5129, 519-20 (9th Cir. 1997), as amended by 137 F.3d 1372
(9th Cir. 1998) (noting that “post-event evidence is not only admissible for purposes of proving
the existence of a municipal defendant’s policy or custom, but may be highly probative with
respect to that inquiry.”).
4. Motion to allow Defendants to video-tape Plaintiff
GRANTED with conditions as discussed on the record.
5. Motion to exclude evidence of a “ratification” theory under 42 U.S.C. § 1983
DENIED. Defendants argue that Plaintiff’s pleading of a municipal liability claim against
Marion County did not include a ratification theory of liability, and that Defendant’s did not find
out about the ratification theory until a week before Plaintiff’s trial documents were due to the
Court. Defendants allege that they will suffer serious prejudice if Plaintiff is allowed to proceed
on the ratification theory because they would have prepared differently for trial if they had
known about this theory earlier, including that they would have engaged an additional expert.

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Plaintiff argues that the facts alleged in the Second Amended Complaint were enough to put
Defendants on notice of a ratification theory claim
In Paragraph 43 of the Second Amended Complaint in this action (Dkt. 19), Plaintiff
alleges:
It was the policy and/or custom of Marion County to inadequately
supervise and train its deputies, including the defendant deputies,
thereby failing to adequately discourage further constitutional
violations on the part of its deputies. Marion County did not
require appropriate in-service training or re-training of officers
who were known to have engaged in police misconduct.
Ratification by a final decision maker is one means of proving municipal policy. See City of St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Plaintiff’s ratification theory is consistent with
the allegations in Paragraph 43 of the Second Amendment Complaint, which alleges a “policy
and/or custom,” particularly in light of the notice pleading standard of Federal Rule of Civil
Procedure 8(a). Furthermore, a ratification theory is consistent with the discovery pursued by
Plaintiff over the course of this litigation.
Defendants do not provide any evidence of responses to interrogatories, responses to
requests for admission, or other discovery that is inconsistent with Plaintiff’s ratification theory
of the case or that shows that Defendants have suffered unfair prejudice. Because Plaintiff’s
ratification theory is consistent with the Second Amended Complaint and Plaintiff’s discovery,
Defendants have not provided evidence that Plaintiff’s previously foreclosed arguing a
ratification theory, and Defendants have not shown any unfair prejudice, evidence regarding
Plaintiff’s ratification theory shall not be excluded.
6. Motion to exclude evidence of a supervisor liability claim under 42 U.S.C. §1983
DENIED. Defendants also argue that Plaintiff did not plead a supervisor liability claim,
and therefore, should be precluded from pursuing this claim at trial. Defendants allege that they
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did not engage in discovery or retain an expert on the issue of supervisory liability, and that it is
too late for Plaintiff to add new claims. Plaintiff argues that supervisory liability is not a new
separate claim, but rather a theory under which a particular defendant may have caused the
alleged Fourth Amendment violation that was pled in the Second Amended Complaint.
In Paragraph 32 of the Second Amended Complaint, Plaintiff alleges that Defendant
Burnham (along with the other individually named defendants) “violated Harrigan’s right not to
be subjected to excessive physical force as guaranteed by the Fourth Amendment to the United
States Constitution, which caused his resulting injuries.” Plaintiff’s counsel has also filed a
declaration stating that she found a record of a conversation with Defendants’ counsel on
November 9, 2012, where they discussed the claim against Sergeant Burnham and the theory of
supervisory liability that Plaintiff would pursue against him. Dkt. 94. Additionally, Plaintiff
alleges that in Sergeant Burnham’s deposition, he stated that he approved the operation at issue
in this case and that the operation would not have gone ahead without his approval. Plaintiff
argues that the allegations in the Second Amended Complaint, the conversation with counsel
about the supervisory liability theory, and the course of Plaintiff’s discovery, are enough to have
put Defendants on notice of the supervisory liability theory, in light of the notice pleading
standard of Federal Rule of Civil Procedure 8(a).
As with Defendants’ Motion Number Five, Defendants have not provided any evidence
that Plaintiff foreclosed a supervisory liability theory. Therefore, because Plaintiff’s supervisory
liability theory is consistent with allegations in the Second Amended Complaint and the course
of discovery, and because Defendants have not demonstrated that they will suffer unfair
prejudice, evidence regarding Plaintiff’s supervisory liability theory shall not be excluded.
7. Motion to require Plaintiff’s counsel to refer to Plaintiff as “Mr. Harrigan”
GRANTED. Plaintiff’s counsel may also refer to Plaintiff as “Daniel Harrigan.”
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C. Defendants’ Objections to Plaintiff’s Trial Exhibits
1. Pre-Admitted Exhibits
The following Plaintiff’s exhibits are pre-admitted without objection: Plaintiff’s Exhibit
Nos. 1, 3-15, 17-26, 28-38, 40-50, 52-55A. See Dkts. 62 and 82.
2. Additional Pre-Admitted Exhibits
The following Plaintiff’s exhibits are pre-admitted over Defendants’ objections:
Plaintiff’s Exhibit Nos. 16 and 39.
3.

Rulings on Defendants’ Objections to Plaintiff’s Exhibits (Dkt. 82)

Ex. 2

Ruling reserved. Plaintiff may attempt to offer additional foundational

evidence to show that Defendants were aware of this document.
Ex. 16

Overruled.

Ex. 27

Ruling reserved. Plaintiff may attempt to offer additional foundation

evidence to show that Defendants were aware of this document.
Ex. 39

Overruled.

Ex. 51

Ruling reserved. Plaintiff may attempt to offer additional foundational

evidence.
Ex. 54A

Objection withdrawn.

Ex. 55A

Objection withdrawn.

Ex. 56

Ruling reserved. This document does not appear to contain inadmissible

hearsay, but its relevance has not yet been shown.
Ex. 57

Ruling reserved. Plaintiff may attempt to offer additional foundational

evidence.
Ex. 58

Ruling reserved. Plaintiff may attempt to offer additional foundation

evidence to show that Defendants were aware of this document.
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Ex. 59

Ruling reserved. Plaintiff may attempt to offer additional foundation

evidence to show that this document qualifies as a business record.
Ex. 60

Ruling reserved.

D. Plaintiff’s Objections to Defendants’ Trial Exhibits
1. Pre-Admitted Exhibits
The following Defendants’ Exhibits are pre-admitted: Defendants’ Exhibit Nos. 202, 204,
208, 216. See Dkts. 71 and 86.
2. Additional Pre-Admitted Exhibits
The following Defendants’ exhibits are pre-admitted over Plaintiff’s objections: None.
3. Rulings on Plaintiff’s Objections to Defendants’ Trial Exhibits (Dkt. 86)
Ex. 201

Ruling reserved to determine relevance. See Plaintiff’s Motion in Limine

Ex. 203

Ruling reserved to determine relevance. See Plaintiff’s Motion in Limine

Ex. 205

Ruling reserved to determine relevance. See Defendants’ Motion in Limine

No. 2.

No. 2.

No. 4. Also, the Court does not have Ex. 205 (video-tape).
Ex. 206

Ruling reserved. Plaintiff may attempt to offer additional foundational

evidence.
Ex. 207

Ruling reserved to determine relevance. See Plaintiff’s Motion in Limine

Ex. 209

Ruling reserved to determine relevance.

Ex. 210

Ruling reserved to determine relevance.

Ex. 211

Ruling reserved to determine relevance.

Ex. 212

Ruling reserved to determine relevance.

No. 3.

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Ex. 213

Ruling reserved to determine relevance.

Ex. 214

Ruling reserved to determine relevance.

Ex. 215

Ruling reserved to determine relevance.

E. Defendants’ Objections to Plaintiff’s Lay Witnesses (Dkt. 79)
Defendants’ objection that Plaintiff provide addresses for their lay witnesses is
SUSTAINED.
1. Defendants’ objections to certain testimony by Carole Harrigan
Objection to Ms. Harrigan’s testimony regarding her understanding of what happened on
September 21, 2010 is RESERVED. The testimony is not offered for the truth of the matter
asserted, but to explain the effect on Ms. Harrigan and her subsequent actions. The relevance of
that evidence, however, is not clear.
Objection to Ms. Harrigan’s testimony regarding her attempts to have deputies trained in
autism is OVERRULED (see the Court’s ruling on Defendants Motion in Limine No. 3)
Objection to Ms. Harrigan’s testimony regarding her opinion on causation is
SUSTAINED IN PART, OVERRULED IN PART (see the Court’s ruling on Defendants Motion
in Limine No. 1).
2. Defendants’ objections to certain testimony by Randy Harrigan
Objection to Mr. Harrigan’s testimony regarding his perception of what happened on
September 21, 2010 is RESERVED. The testimony is not offered for the truth of the matter
asserted, but to explain the effect on Mr. Randy Harrigan and his subsequent actions. The
relevance of that evidence, however, is not clear.
Objection to Mr. Harrigan’s testimony regarding his opinion on causation is
OVERRULED (see the Court’s ruling on Defendants Motion in Limine No. 1).

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3. Objections to certain testimony by Genevieve Athens
SUSTAINED as to Ms. Athens’ testimony regarding her understanding of the incident on
September 21, 2010. The remainder of the objection is OVERRULED (see the Court’s ruling on
Defendants’ Motion in Limine No. 2).
F. Defendants’ Objections to Plaintiff’s Expert Witnesses (Dkt. 81)
OVERRULED (see the Court’s ruling on Defendants’ Motion in Limine No. 2).
G. Plaintiff’s Objections to Defendants’ Lay Witnesses (Dkt. 87)
Plaintiff’s objection that Defendants’ lay witness statements fail to comply with the
Court’s Pretrial Management Order is SUSTAINED. Defendants are ordered to provide more
detailed and substantive witness statements as required by the Court and discussed during the
pretrial conference.
Plaintiff objects to Defendants calling witnesses Damon Frutos, Alex Bancroft, Scott
Seaton, and Kris Williams. Defendants withdrew these witnesses at the pretrial conference.
CONCLUSION
The parties’ motions in limine and other evidentiary matters raised in Dkts. 53, 74, 79,
81, 82, 86, and 87 are GRANTED IN PART and DENIED IN PART as set forth in this Opinion
and Order.
IT IS SO ORDERED.
DATED this 18th day of September 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 19 – OPINION AND ORDER