Jensen v. West Jordan City et al

Filing 299

MEMORANDUM DECISION AND ORDER granting 228 Motion for Judgment on the Pleadings ; denying 229 Motion in Limine; granting 232 Motion in Limine; denying 233 Motion in Limine; granting 234 Motion in Limine; granting 235 Motion in Limine; granting in part and denying in part 236 Motion in Limine; granting 237 Motion in Limine; denying 238 Motion in Limine; granting 241 Sealed Motion; denying 242 Sealed Motion; denying 243 Sealed Motion; denying 282 Motion to Amend/Correct. Motion in Limine 231 will be decided in a later court order. Signed by Judge Dale A. Kimball on 5/26/2017. (jwt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

AARON JENSEN,
MEMORANDUM DECISION
AND ORDER

Plaintiff,
vs.
WEST JORDAN CITY, a Utah municipal
corporation, and ROBERT SHOBER, in
his official capacity;

Case No. 2:12-CV-736-DAK
Judge Dale A. Kimball

Defendants.
This matter is before the court on several pretrial motions: Defendants West Jordan City
(“WJC”) and Robert Shober’s (“Defendants’”) Motion for Judgment on the Pleadings
Dismissing the Claims Against Robert Shober in His Official Capacity [Docket No. 228];
Defendants’ Motion in Limine No. 1: To Exclude Details of the Alleged Sexual Harassment of
Mr. Jensen [Docket No. 241]; Defendants’ Motion in Limine No. 2: To Exclude or Limit the
Testimony of Gary R. Couillard, CPA [Docket No. 229]; Defendants’ Motion in Limine No. 3:
To Exclude Mediation Communications [Docket No. 231]; Defendants’ Motion in Limine No. 4:
To Exclude or Limit the Testimony of Dr. Soderquist [Docket No. 242]; Defendants’ Motion in
Limine No. 5: To Exclude Hearsay Statements and Unsupported, Speculative Opinions [Docket
No. 232]; Defendants’ Motion in Limine No. 6: To Exclude Evidence and Testimony Regarding
Former West Jordan Employee [Docket No. 233]; Defendants’ Motion in Limine No. 7: To
Exclude Evidence Regarding Shelley Thomas [Docket No. 234]; Defendants’ Motion in Limine
No. 8: To Exclude the Testimony, Opinions, and Statements of Troy Rawlings [Docket No. 243];
Defendants’ Motion in Limine No. 9: To Exclude the Testimony and Records of Dr. Juracan

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[Docket No. 235]; Plaintiff Aaron Jensen’s (“Mr. Jensen’s”) Motion in Limine No. 1 Re:
Allegations Reviewed by the AG’s Office [Docket No. 236]; Mr. Jensen’s Motion in Limine No.
2 Re: Brenda Beaton [Docket No. 237]; and Mr. Jensen’s Motion in Limine No. 3 Re: Mr.
Jensen’s Experiences as a Police Officer [Docket No. 238]. On May 23, 2017, the court held a
hearing on the motions. At the hearing, Mr. Jensen was represented by April Hollingsworth, and
Defendants were represented by Nathan Skeen, Maralyn English, Danica Cepernich, and Paul
Dodd. Because Mr. Jensen’s Motion to Amend Complaint [Docket No. 282] is related to
Defendants’ Motion for Judgment on the Pleadings Dismissing the Claims Against Robert
Shober in His Official Capacity [Docket No. 228], the court also heard brief arguments on that
motion. The court took the motions under advisement. The court has carefully considered the
parties’ arguments as well as the law and facts relevant to the motions. Now being fully advised,
the court issues the following Memorandum Decision and Order.
1. Defendants’ Motion for Judgment on the Pleadings Dismissing the Claims Against
Robert Shober in His Official Capacity
Defendants seek to dismiss Robert Shober in his official capacity pursuant to Federal
Rule of Civil Procedure 12(c) because “[a] suit against a municipality and a suit against a
municipal official acting in his or her official capacity are the same.” Watson v. City of Kansas
City, Kan., 857 F.2d 690, 695 (10th Cir. 1988); see also Hinton v. City of Elwood, Kan., 997
F.2d 774, 780 (10th Cir. 1993) (“Since a judgment against a public servant in his or her official
capacity imposes liability on the entity he or she represents, an official capacity suit is simply
another way of pleading an action against that entity.” (citations omitted)); Swasey v. W. Valley
City, No. 2:13-CV-768-DN, 2015 WL 500870, at *1 (D. Utah Feb. 5, 2015) (unpublished)
(“[W]hen a plaintiff names a municipality and a municipal employee in his official capacity, the
claim against the employee in the official capacity should be dismissed.”). In his response to the
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motion, Mr. Jensen agrees that maintaining Robert Shober in his official capacity as a defendant
is unnecessary. The court also agrees and, therefore, grants Defendants Motion for Judgment on
the Pleadings Dismissing the Claims Against Robert Shober in his Official Capacity.
Although Mr. Jensen agrees that Robert Shober should be dropped as a defendant in his
official capacity, Mr. Jensen filed a separate Motion to Amend Complaint asking the court to
allow Mr. Jensen to add claims against Robert Shober in his personal capacity. This is not the
first time that Mr. Jensen has sought to amend the complaint to add claims against Robert Shober
in his personal capacity. On February 16, 2015, Mr. Jensen moved to add several amendments to
the Complaint, including adding claims against Robert Shober in his personal capacity. On May
19, 2015, Magistrate Judge Dustin B. Pead entered a Memorandum Decision granting in part and
denying in part Mr. Jensen’s motion to amend. Although the Memorandum Decision did not
directly address the allegations against Mr. Shober in his personal capacity, the decision denied
the motion with respect to all claims not specifically addressed in the decision due to undue
delay and undue prejudice to the Defendants. On June 5, 2015, the court overruled Mr. Jensen’s
objections to Magistrate Judge Pead’s Memorandum Decision and affirmed and adopted the
decision in its entirety.
The court does not see any need to reconsider its prior decision denying Mr. Jensen’s
motion to amend. If undue delay was present when Mr. Jensen moved to amend in February of
2015, then undue delay is still present over two years later. The court also concludes that undue
prejudice is still present and that the level of prejudice is even greater now. With less than a
month until trial, Mr. Jensen is seeking to bring claims against Mr. Jensen in his individual
capacity. Although Mr. Jensen argues that the individual-capacity claims will not prejudice
Defendants because the claims rely on the same facts, the individual-capacity claims also allow

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for punitive damages and for a qualified immunity defense, neither of which Defendants
considered or prepared for. Those changes to the available damages and defenses are significant
changes to be making this close to trial. See Colvin v. McDougall, 62 F.3d 1316, 1318 (11th Cir.
1995) (“[T]he difference between an official capacity suit and an individual capacity suit is a big
difference.”); Lovelace v. O’Hara, 985 F.2d 847, 850 (6th Cir. 1993) (“[T]he distinction between
an official capacity and an individual capacity suit is significant.”). Therefore, the court denies
Mr. Jensen’s Motion to Amend Complaint to add Mr. Shober in his personal capacity.
2. Defendants’ Motion in Limine No. 1: To Exclude Details of Alleged Sexual
Harassment of Mr. Jensen
Although the fact that Mr. Jensen made a complaint alleging that he was sexually
harassed is relevant to his retaliation claim, Defendants seek to exclude details of the alleged
sexual harassment of Mr. Jensen pursuant to Federal Rule of Evidence 403. In his opposition,
Mr. Jensen concedes that the details of the alleged sexual harassment may not be relevant in
general but clarified that Defendants could make the details relevant by implying that Mr.
Jensen’s claims were frivolous or that Mr. Jensen brought false claims.
The court agrees with the parties that the details of the alleged sexual harassment
complaint underlying Mr. Jensen’s retaliation claim are not relevant and are likely to be
substantially more prejudicial than probative. Therefore, the court grants Defendants motion to
exclude those details. However, if Mr. Jensen believes that the Defendants have made the details
of Mr. Jensen’s sexual harassment complaint relevant at trial and intends to introduce evidence
or argument about those details, the court orders Mr. Jensen to give advanced notice to both
Defendants and the court before introducing the evidence. The court also orders the parties to
work together to propose a jury instruction on stipulated facts regarding Mr. Jensen’s sexual
harassment complaint.
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3. Defendants’ Motion in Limine No. 2: To Exclude or Limit the Testimony of Gary R.
Couillard, CPA
Defendants motion initially sought to exclude several opinions that were included in the
report of Gary Couillard, CPA, Mr. Jensen’s economic damages expert, because Mr. Couillard
was not qualified to testify about those opinions. But, through his opposition to Defendants’
motion in limine, Mr. Jensen clarified that Mr. Couillard’s only role in this case is to calculate
the value of Mr. Jensen’s lost retirement benefits. Therefore, the only remaining argument in
Defendants motion in limine is that the testimony of Mr. Couillard should be excluded pursuant
to Federal Rule of Evidence 702 because his opinion relies on assumptions that cannot be proven
by admissible, competent evidence at trial. Specifically, Defendants argue that Mr. Couillard has
no factual basis to assume that, absent conduct alleged against WJC, Mr. Jensen would have
continued working 7.5 more years as a WJC police officer or would have found employment for
7.5 years as a Utah police officer such that he would be entitled to retirement benefits.
Pursuant to Federal Rule of Evidence 702, an expert “may testify in the form of an
opinion or otherwise if,” among other things, “the testimony is based on sufficient facts or data.”
Fed. R. Evid. 702(b). Although this requirement prohibits an expert from testifying based on
mere “subjective belief or unsupported speculation,” Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 590 (1993), “absolute certainty is not required,” Gomez v. Martin Marietta
Corp., 50 F.3d 1511, 1519 (10th Cir. 1995). Expert witnesses may, and often do, rely on
assumptions to formulate their opinions. See Chimney Rock Pub. Power Dist. v. Tri-State
Generation & Transportation Ass’n, Inc., No. 10-CV-02349-WJM-KMT, 2014 WL 1715096, at
*2 (D. Colo. Apr. 30, 2014) (“An expert witness may use assumptions in addition to facts to
formulate his opinion, and the use of such assumptions does not make the opinion
inadmissible.”). As long as an expert clearly identifies his or her assumptions and distinguishes
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those assumptions from other facts or data, the reliance on assumptions does not affect the
admissibility of the expert’s testimony but instead goes to the weight of that testimony. See
United States v. Crabbe, 556 F. Supp. 2d 1217, 1224 (D. Colo. 2008) (“The accuracy of the
assumption is not at issue for Rule 702 purposes. . . . The accuracy of the assumption is an issue
for trial because it affects the weight of the opinion.”).
The court concludes that Defendants’ motion to exclude the testimony of Mr. Couillard
should be denied. Defendants do not question Mr. Couillard’s credentials or qualifications as an
economist or his ability to calculate the value of Mr. Jensen’s damages. Instead, Defendants base
their arguments on the fact that Mr. Couillard is relying on assumptions that cannot be proven by
admissible, competent evidence at trial. But an expert is allowed to rely on assumptions, as long
as the assumptions are clear to the jury. Mr. Jensen argues that he will be able to establish the
assumptions through witnesses at trial. Whether that is true or not remains to be seen but does
not affect whether Mr. Couillard’s testimony is admissible. If Mr. Jensen fails to adequately
establish the assumptions at trial, Defendants can then challenge the weight and credibility of
Mr. Couillard’s opinion at trial.
4. Defendants’ Motion in Limine No. 3: To Exclude Mediation Communications
Defendants seek to exclude evidence of mediation communications, as that term is
defined in Utah’s Uniform Mediation Act, related to the agreement reached between Mr. Jensen
and WJC on the underlying sexual harassment claims. Although the parties generally agree that
mediation communications should be excluded from trial, during the hearing, the parties revealed
that a dispute exists as to the date that the agreement between the parties was finalized. At the
hearing, the court ordered the parties to submit additional briefing on the date that the agreement
was finalized so that the court can clarify that issue before trial. Because the date that the

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agreement was finalized may affect what communications are considered mediation
communications for purposes of this motion in limine, the court has determined that it will rule
on the motion to exclude mediation communications in the same order that it determines the date
that the agreement between the parties was finalized.
5. Defendants’ Motion in Limine No. 4: To Exclude or Limit the Testimony of Dr.
Soderquist
Defendants seek to exclude or limit the testimony of Dr. Jean Soderquist, Ph.D., Mr.
Jensen’s former treating therapist, because Dr. Soderquist’s testimony goes beyond what should
be allowed by a non-retained, treating provider. Although Dr. Soderquist was designated by Mr.
Jensen as both a fact and an expert witness, Dr. Soderquist was not retained as an expert and did
not file an expert report, which is proper for treating physicians under Federal Rule of Civil
Procedure 26(a)(2)(C). Treating physicians designated as experts under Rule 26(a)(2)(C) “may
both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or
705.” Fed. R. Civ. P. 26, advisory committee notes, 2010 amendments. A treating physician can
testify as a fact witness regarding “observations based on personal knowledge, including the
treatment of the party.” Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999). But a treating
physician may also offer expert testimony and “opinions on matters within the scope of their
treatment . . . [including] opinions about causation, diagnosis, and prognosis.” Richard v.
Hinshaw, No. CIV.A 09-1278-MLB, 2013 WL 6709674, at *2 (D. Kan. Dec. 18, 2013). In other
words, a treating physician may testify as an expert witness to the extent that the testimony and
opinions are “based on the physician’s personal knowledge gained from the care and treatment of
the plaintiff.” Wright v. BNSF Ry. Co., No. 13-CV-24-JED-FHM, 2016 WL 1183135, at *2
(N.D. Okla. Mar. 28, 2016) (internal quotation marks and citations omitted). Although expert
testimony opinions should be limited to opinions “formed during the course of treatment of the
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patient” and “limited to the personal knowledge and observations obtained during the course of
care of the plaintiff” and not “based on information learned outside of the treatment,” Ramirez v.
Ultimate Concrete, LLC, No. 13CV649 JCH/LAM, 2015 WL 12832341, at *2 (D.N.M. Feb. 10,
2015), a treating physician in his or her role as a fact witness may, like any other fact witness,
provide testimony on any facts based on personal knowledge, including facts learned outside of
the treatment.
In this case, Dr. Soderquist had interactions with Mr. Jensen before becoming Mr.
Jensen’s treating therapist. Because Dr. Soderquist can testify as a fact witness, Dr. Soderquist
can give observations based on personal knowledge regarding his interactions with Mr. Jensen,
including the interactions with Mr. Jensen before becoming his treating therapist. As a nonretained expert, Dr. Soderquist can also give expert testimony as long as the expert testimony is
limited to personal knowledge and observations obtained during the course of Mr. Jensen’s
treatment.
Defendants discuss at length statements from Dr. Soderquist’s deposition regarding the
fact that Dr. Soderquist was not treating Mr. Jensen for the diagnosis of depression but was
instead treating him for depression as a symptom, did not do drug counseling with Mr. Jensen for
his substance abuse, and did not consider herself to be treating Mr. Jensen for the cause of his
psychological injuries. Based on these statements, Defendants argue that Dr. Soderquist should
not be able to offer opinions regarding a diagnosis of depression, substance abuse, or the cause of
Mr. Jensen’s claimed psychological injuries. The court disagrees. As long as Dr. Soderquist is
basing his expert opinion on personal knowledge obtained during the course of Mr. Jensen’s
treatment, the court concludes that Dr. Soderquist may opine even on topics such as depression,
substance abuse, and the cause of Mr. Jensen’s psychological injuries. Therefore, the court

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concludes that Defendants’ motion to exclude or limit Dr. Soderquist’s testimony should be
denied.
6. Defendants’ Motion in Limine No. 5: To Exclude Hearsay Statements and
Unsupported, Speculative Opinions
Defendants seek to exclude specific statements identified in their motion in limine
pursuant to Federal Rules of Evidence 802 and 602 because Defendants argue that they are either
hearsay statements or unsupported, speculative testimony offered by Mr. Jensen and his
witnesses. In general, “statements that: (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted
in the statement” are “not admissible.” Fed. R. Evid. 801(c) and 802. A fact witness is also
limited to testifying “to a matter only if evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter.” Fed. R. Evid. 602. Although this rule does
not prevent a fact witness from offering opinion testimony that is “rationally based on the
witness’s perception,” Fed. R. Evid. 701, opinion testimony by a fact witness “based on
speculation is inadmissible.” Horizon Americas Inc. v. Cessna Aircraft Co., No. CIV.A 03-1071MLB, 2006 WL 5249750, at *1 (D. Kan. Feb. 1, 2006).
Although Mr. Jensen generally agrees with the principles identified by Defendants in
their motion, Mr. Jensen argues that the motion is premature because the determination of
whether the statements are admissible must be made at trial in light of the context in which they
are offered. Although the court recognizes that context may affect the admissibility of statements
at trial, the statements identified by Defendants appear to be either hearsay or speculative in the
context in which they would likely be offered at trial. Therefore, the court concludes that
Defendants’ motion should generally be granted. However, if Mr. Jensen can convince the court
at trial that one of the identified statements does not qualify as hearsay, or falls within an
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exception to the general rule that hearsay is inadmissible, and is not speculative in the context in
which it is being offered, then the court may allow the statement to be offered at trial.
7. Defendants’ Motion in Limine No. 6: To Exclude Evidence and Testimony
Regarding Former WJC Employee
Defendants seek to exclude all evidence or testimony regarding former WJC employee
David Kwant pursuant to Federal Rules of Evidence 401 and 403 because Mr. Kwant is not
similarly situated to Mr. Jensen and because Mr. Jensen has not produced any admissible
evidence regarding Mr. Kwant. Mr. Jensen argues that he has personal knowledge of and can
testify about evidence of the allegations against Mr. Kwant because Mr. Jensen was involved in
the internal affairs investigation into Mr. Kwant. Mr. Jensen also argues that evidence regarding
Mr. Kwant is relevant to show a motive to retaliate against Mr. Jensen because, despite having
evidence of alleged criminal conduct by Mr. Kwant, WJC did not prosecute Mr. Kwant or refer
his situation to another agency as WJC did with Mr. Jensen’s situation.
The court concludes that evidence regarding Mr. Kwant meets the low bar of relevance
because it potentially relates to the motives of WJC employees. To the extent that Mr. Jensen or
other witnesses have personal knowledge about the allegations against Mr. Kwant, those
witnesses can testify at trial based on that personal knowledge. However, hearsay or speculative
evidence will not be admitted to inform the jury about the allegations against Mr. Kwant.
Therefore, the court concludes that Defendants’ motion in limine to exclude evidence and
testimony regarding Mr. Kwant should be denied and evidence about Mr. Kwant based on
personal knowledge is admissible at trial.

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8. Defendants’ Motion in Limine No. 7: To Exclude Evidence Regarding Shelley
Thomas
Defendants seek to exclude testimony regarding Shelley Thomas, a WJC Justice Court
Clerk, including the complaint she filed in federal court, pursuant to Rules of Evidence 401, 403,
and 802 as irrelevant, prejudicial, and inadmissible hearsay. Although Mr. Jensen agrees that the
complaint should be excluded as inadmissible hearsay, Mr. Jensen argues that other evidence
regarding Ms. Thomas should be admitted because it is relevant to establishing a municipal
policy or custom of retaliation through threats of or actual criminal prosecution.
Although evidence of a municipal policy or custom is relevant to Mr. Jensen’s claims,
Ms. Thomas’s situation is not sufficiently similar to Mr. Jensen’s situation for the evidence
regarding Ms. Thomas to be relevant to Mr. Jensen’s claim of a municipal policy or custom.
Because “a municipality is not vicariously liable under § 1983 for the misconduct of its
employees,” to pursue a § 1983 claim against a municipality, a plaintiff must show that the
“alleged misconduct was the result of ‘action pursuant to official municipal policy,’ evidenced
by a ‘practice[] so persistent and widespread as to practically have the force of law.” Williams v.
City of Tulsa, 627 Fed. Appx. 700, 704 (10th Cir. 2015) (quoting Connick v. Thompson, 563 U.S.
51, 60-61 (2011)). In order for a separate incident to be relevant to showing a municipal policy
or custom, the “incident” must be “similar to the allegations” at issue in the case in front of the
court. Id.
In this case, Mr. Jensen is claiming that WJC retaliated against him for the protected
activity of filing a sexual harassment complaint against individual employees of WJC by
initiating and encouraging a prosecution against Mr. Jensen. On the other hand, Ms. Thomas was
concerned that she might face criminal charges for engaging in what she considered to be
protected speech by refusing to provide or cooperate in locating a case file related to a criminal
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investigation. Ms. Thomas did not allege retaliation for any protected activity, no formal
investigation was initiated against Ms. Thomas, no charges were ever brought against Ms.
Thomas, and the individuals who allegedly threatened Ms. Thomas with criminal charges were
not WJC employees. Therefore, the court concludes that evidence regarding Ms. Thomas
“clearly fails to indicate a persistent and widespread practice [of retaliation through threats of or
actual criminal prosecution] sufficient to impute liability for . . . alleged misconduct [of WJC
employees] to the City.” Williams, 627 Fed. Appx. at 704.
Therefore, the court concludes that Defendants’ motion in limine to exclude evidence
regarding Ms. Thomas should be granted.
9. Defendants’ Motion in Limine No. 8: To Exclude the Testimony, Opinions, and
Statements of Troy Rawlings
Defendants seek to exclude the testimony, opinions, and statements of Troy Rawlings
pursuant to Federal Rules of Evidence 401, 402, and 602 because Mr. Rawlings has no personal
knowledge of facts that are of consequence in determining this action. Although Mr. Rawlings is
the Davis County Attorney who made the decision to dismiss the criminal charges against Mr.
Jensen, Defendants argue that his testimony is not relevant to proving or disproving any element
of any remaining claims, especially because Defendants do not dispute that the charges against
Mr. Jensen were dismissed with prejudice in response to a motion filed by Mr. Rawlings.
Even though Defendants do not dispute that the charges against Mr. Jensen were
dismissed, the court concludes that Mr. Rawlings has personal knowledge of evidence that would
tend “to make a fact [of consequence in determining the action] more or less probable than it
would be without the evidence.” Fed. R. Evid. 401. Specifically, Mr. Rawlings has personal
knowledge that Mr. Jensen’s case was transferred from the Salt Lake County Attorney’s Office
(“SLCO”) to the Davis County Attorney’s Office, of what was contained in the case file, of his
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review of the case, and of the reasons why he decided to dismiss the charges against Mr. Jensen.
Mr. Rawlings can also testify that he talked to various people about Mr. Jensen’s case and can
identify who he talked to, although Mr. Rawlings cannot testify as to the contents of those
conversations unless an exception to the hearsay rule applies. However, the court notes that, like
any fact witness, Mr. Rawlings is not allowed to testify in the form of an opinion on matters that
are not within his personal knowledge, including the motivation behind SLCO’s decision to
transfer the case to Davis County, the likelihood of Mr. Jensen engaging in the conduct that he
was charged with, the competence and professionalism of other investigators and prosecutors,
and the quality of the investigation or prosecution.
As long as Mr. Rawlings keeps his testimony within the limits that the rules of evidence
set for fact witnesses, the court concludes that Mr. Rawlings can testify at trial. Therefore, the
Defendants’ motion in limine to exclude Mr. Rawlings’s testimony is denied.
10. Defendants’ Motion in Limine No. 9: To Exclude the Testimony and Records of Dr.
Juracan
Defendants seek to exclude the testimony and records of Dr. Marco Juracan, Mr. Jensen’s
current treating physician, pursuant to Federal Rule of Civil Procedure 37(c) and a prior court
order because Mr. Jensen’s recent identification of Dr. Juracan as a fact witness and of his
records is untimely and likely precluded by the court’s prior ruling. On February 3, 2017, the
court issued an order striking Mr. Jensen’s October 5, 2016, expert designation of Dr. Juracan as
untimely, as prejudicial to Defendants, as disruptive of the trial schedule, and as indicative of a
lack of diligence on the part of Mr. Jensen.
The Tenth Circuit has provided the following factors to consider to determine whether to
exclude a witness or information based on a failure to disclose: “(1) the prejudice or surprise to
the party against whom the testimony is offered; (2) the ability to cure prejudice; (3) extent to
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which introducing the testimony would disrupt a trial; and (4) the moving party’s bad faith or
willfulness.” Woodworker’s Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985,
993 (10th Cir. 1999).
The court has already concluded that allowing Dr. Juracan to testify as an expert would
prejudice Defendants and disrupt the trial schedule. Because the trial is now less than a month
away, the prejudice to Defendants and the disruption to the trial schedule are even more
significant now than when the court issued its first order. Although Mr. Jensen has now
designated Dr. Juracan as a fact witness, the arguments at the hearing on this motion in limine
clarified that Mr. Jensen still intends to have Dr. Juracan offer testimony based on his specialized
knowledge and experience. Mr. Jensen appears to be trying to avoid the effect of the court’s prior
order by “proffering an expert in lay witness clothing,” which is prohibited by the Federal Rules
of Evidence. Fed. R. Evid. 701, advisory committee notes, 2000 amendments.
Because the court is unwilling to reconsider its prior order, the court concludes that
Defendants’ motion in limine should be granted.
11. Mr. Jensen’s Motion in Limine No. 1 Re: Allegations Reviewed by the AG’s Office
Mr. Jensen seeks to exclude evidence of allegations of misconduct other than possession
with intent to distribute a controlled substance and misuse of public monies that were reviewed
by the Utah Attorney General’s (“AG’s”) Office before Mr. Jensen’s arrest pursuant to Federal
Rules of Evidence 401 and 403 as irrelevant and because the probative value is substantially
outweighed by a danger of unfair prejudice to Mr. Jensen. Specifically, an internal audit
performed by the AG’s Office revealed evidence of the following potential crimes committed by
Mr. Jensen: falsifying reports, unlawful detention of individuals, robbery, destruction or
concealing of evidence, and soliciting a prostitute. Mr. Jensen argues that these crimes are

14

irrelevant because Mr. Jensen was not charged with any of these crimes and the allegations are
not a basis for this lawsuit. On the other hand, Defendants argue that the crimes are relevant to
the length and complexity of the investigation performed by the AG’s Office and the Salt Lake
County Attorney’s Office (“SLCO”) and to determining the motivations behind the decisions of
the AG’s Office and SLCO during the investigations and eventual prosecution of Mr. Jensen.
Although the court recognizes the relevance of the specific crimes identified by the AG’s
Office’s internal audit to the length and complexity of the investigation and the motivations
behind decision to investigate and prosecute, the court also recognizes the manifestly prejudicial
nature of the crime of soliciting a prostitute. The court concludes that, despite its potential
relevance, evidence of the crime of soliciting a prostitute is manifestly substantially more
prejudicial than probative. Therefore, although the court will allow Defendants to introduce
evidence of other crimes that the AG’s Office found evidence of, the court concludes that
Defendants may not introduce any evidence of the crime of soliciting a prostitute.
The court concludes that Mr. Jensen’s motion in limine regarding allegations reviewed by
the AG’s Office should be granted in part as to the crime of soliciting a prostitute.
12. Mr. Jensen’s Motion in Limine No. 2 Re: Brenda Beaton
Mr. Jensen seeks to exclude any evidence related to a previous intimate relationship
between Mr. Jensen and Brenda Beaton pursuant to Federal Rules of Evidence 401 and 403
because it is irrelevant and prejudicial. In their response, Defendants note that they have no plans
to introduce evidence of the intimate relationship between Mr. Jensen and Ms. Beaton.
Therefore, the court concludes the Mr. Jensen’s motion regarding Brenda Beaton should be
granted.

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Pursuant to a request from the Defendants, the court also concludes that, if Mr. Jensen
elicits testimony or introduces evidence at trial that makes the relationship relevant, Defendants
may introduce evidence of the relationship if, before introducing the evidence, Defendants
provide notice to Mr. Jensen and allow the court to evaluate whether, under the circumstances,
the evidence is relevant and admissible.
13. Mr. Jensen’s Motionin Limine No. 3 Re: Mr. Jensen’s Experiences as a Police
Officer
Mr. Jensen seeks to exclude evidence of Mr. Jensen’s misrepresentations of his
experiences as a police officer pursuant to Rules of Evidence 401, 608, and 801 and the therapist
privilege. Defendants have provided evidence that Mr. Jensen misrepresented experiences that he
had as a police officer including misrepresenting that he was present when one of his co-workers
was shot in the line of duty, that he personally was shot in the line of duty, and that he rescued a
baby from a burning building. Evidence that Mr. Jensen made these misrepresentations include
therapy notes, representations made by Mr. Jensen’s attorney in a justice court, and Mr. Jensen’s
responses on an application for reactivation of the Utah Peace Officer Standards and Training.
Defendants argue that this evidence is relevant to both emotional distress damages and Mr.
Jensen’s credibility.
The court agrees that evidence of Mr. Jensen’s misrepresentations regarding experiences
that he had as a police officer are relevant to both emotional distress damages and Mr. Jensen’s
credibility. But any evidence that Mr. Jensen actually made the alleged misrepresentations must
be presented to the jury only through admissible evidence. For example, Defendants could not
rely exclusively on therapy notes to present the evidence to the jury, but the evidence could
potentially come in through the testimony of the therapists themselves. Similarly, Defendants

16

could not rely on the statements of Mr. Jensen’s attorney in front of a justice court, but the
Defendants could rely on misrepresentations on an application.
Therefore, the court concludes that Mr. Jensen’s motion in limine regarding his
experiences as a police officer should be denied, and, to the extent that the Defendants can use
admissible evidence to show that Mr. Jensen made the alleged misrepresentations, the court will
allow such evidence to be admitted.
CONCLUSION
Based on the above reasoning, Defendants’ Motion for Judgment on the Pleadings
Dismissing the Claims Against Robert Shober in His Official Capacity [Docket No. 228] is
GRANTED; Mr. Jensen’s Motion to Amend Complaint [Docket No. 282] is DENIED;
Defendants’ Motion in Limine No. 1: To Exclude Details of the Alleged Sexual Harassment of
Mr. Jensen [Docket No. 241] is GRANTED; Defendants’ Motion in Limine No. 2: To Exclude
or Limit the Testimony of Gary R. Couillard, CPA [Docket No. 229] is DENIED; Defendants’
Motion in Limine No. 3: To Exclude Mediation Communications [Docket No. 231] will be
decided in a later court order; Defendants’ Motion in Limine No. 4: To Exclude or Limit the
Testimony of Dr. Soderquist [Docket No. 242] is DENIED; Defendants’ Motion in Limine No.
5: To Exclude Hearsay Statements and Unsupported, Speculative Opinions [Docket No. 232] is
GRANTED; Defendants’ Motion in Limine No. 6: To Exclude Evidence and Testimony
Regarding Former West Jordan Employee [Docket No. 233] is DENIED; Defendants’ Motion in
Limine No. 7: To Exclude Evidence Regarding Shelley Thomas [Docket No. 234] is
GRANTED; Defendants’ Motion in Limine No. 8: To Exclude the Testimony, Opinions, and
Statements of Troy Rawlings [Docket No. 243] is DENIED; Defendants’ Motion in Limine No.
9: To Exclude the Testimony and Records of Dr. Juracan [Docket No. 235] is GRANTED;

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Plaintiff Aaron Jensen’s (“Mr. Jensen’s”) Motion in Limine No. 1 Re: Allegations Reviewed by
the AG’s Office [Docket No. 236] is GRANTED IN PART AND DENIED IN PART; Mr.
Jensen’s Motion in Limine No. 2 Re: Brenda Beaton [Docket No. 237] is GRANTED; and Mr.
Jensen’s Motion in Limine No. 3 Re: Mr. Jensen’s Experiences as a Police Officer [Docket No.
238] is DENIED.
DATED this 26th day of May, 2017.
BY THE COURT:

_________________________________________
DALE A. KIMBALL
United States District Judge

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