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Silva v. Chung

United States District Court, D. Hawaii

May 21, 2019

GULSTAN E. SILVA, JR., as Personal Representative of the Estate of Sheldon Paul Haleck, Plaintiff,
v.
CHRISTOPHER CHUNG; SAMANTHA CRITCHLOW; AND STEPHEN KARDASH, Defendants.

          ORDER #2 ON DEFENDANTS' MOTIONS IN LIMINE

          HELEN GILLMOR UNITED STATES DISTRICT JUDGE.

         DEFENDANTS' MOTION IN LIMINE NO. 1

         MOTION TO EXCLUDE EXPERT OPINIONS BY RICHARD LICHTEN (ECF No. 271) is DENIED

          Defendants' Motion in Limine No. 1 seeks to exclude Plaintiff's expert on police practices, Mr. Richard Lichten, on the basis that he is not qualified to provide expert opinions.

         Federal Rule of Evidence 702 provides that “scientific, technical, or other specialized knowledge” by a qualified expert is admissible if it will “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Civ.P. 702.

         The United States Supreme Court held in Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993) that the District Court has a gatekeeping responsibility to objectively screen expert testimony to ensure that it is not only relevant, but reliable. The District Court's obligation applies to technical and other specialized knowledge as well as testimony based on scientific knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999).

         The Ninth Circuit Court of Appeals has explained that expert testimony is relevant if the evidence logically advances a material aspect of the party's case. Estate of Barabin v. Asten Johnson, Inc., 740 F.3d 457, 463-64 (9th Cir. 2014). The Court must consider if an expert's testimony has a reliable basis in the knowledge and experience of the relevant discipline. Kumho, 526 U.S. at 149.

         Expert opinion evidence that logically advances a material aspect of the party's case or is helpful to the jury is relevant. Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007). An expert's testimony need not go to an ultimate issue to be relevant pursuant to Federal Rule of Evidence 702. Smith v. Ford Motor Co., 215 F.3d 713, 721 (7th Cir. 2000).

         Mr. Lichten bases his expert opinions upon his thirty years of experience and the written policies of the Honolulu Police Department. Mr. Lichten has been certified as an expert by numerous federal and state courts in the field of police practices. The Court finds that Mr. Lichten has the requisite skill, education, training, and experience to testify as an expert about police practices.

         Qualified experts, such as Mr. Lichten, may testify about police practices and whether the particular actions of a police officer in a given situation comports with law enforcement's standards. M.R. v. City of Azusa, 2014 WL 12839737, *8 (C.D. Cal. Oct. 1, 2014) (finding Mr. Lichten was permitted to provide expert testimony about police practices standards and whether a reasonable officer would have acted as the defendant officer in the situation at issue); Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (admitting expert testimony that relied on a department's written standards and training in discussing whether the officers' conduct comported with the law enforcement's standards).

         Mr. Lichten may not testify, however, about facts that are not in evidence. Defendants argue that Mr. Lichten's report is based on facts that do no exist, specifically that Haleck was dragged by the Defendant Officers and that the Taser's probes actually penetrated Haleck's skin. Mr. Lichten is precluded from testifying about such information if there is no evidentiary basis presented at trial.

         Mr. Lichten also may not testify as to the ultimate legal conclusion as to whether an individual Defendant Officer used excessive force in violation of the Fourth Amendment to the United States Constitution.

         Defendants' Motion in Limine No. 1 To Exclude Expert Opinions By Richard Lichten (ECF No. 271) is DENIED.

         DEFENDANTS' MOTION IN LIMINE NO. 2

         MOTION TO ENFORCE THE WITNESS EXCLUSIONARY RULE (ECF No. 272) is GRANTED

         Federal Rule of Evidence 615, known as the witness exclusionary rule, provides:

At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or
(d) a person authorized by statute to be present.

Fed. R. Evid. 615.

         Defendants request to invoke the witness exclusionary rule.

         Defendants' Motion in Limine No. 2 To Invoke the Witness Exclusionary Rule (ECF No. 272) is GRANTED. Witnesses are excluded from sitting in the gallery of the courtroom until after they have completed their testimony. If there is a possibility of a witness being re-called for rebuttal or called by the opposing side, the witness remains excluded. The attorneys for the Parties must obtain a waiver to the Witness Exclusionary Rule from the Court for any witness to be present in the Courtroom.

         DEFENDANTS' MOTION IN LIMINE NO. 3

         MOTION TO ADMIT EVIDENCE OF PRIOR DRUG USE AND DRUG USE ON THE DAY OF THE INCIDENT (ECF No. 273)

         The ruling on Defendants' Motion in Limine No. 3 is set forth in the Court's Order #3 on Motions in Limine.

         DEFENDANTS' MOTION IN LIMINE NO. 4

         MOTION TO ADMIT EVIDENCE OF HALECK'S ACCIDENTS AND INJURIES SUSTAINED ONE DAY PRIOR TO THE INCIDENT (ECF No. 274)

         The ruling on Defendants' Motion in Limine No. 4 is set forth in the Court's Order #3 on Motions in Limine.

         DEFENDANTS' MOTION IN LIMINE NO. 5

         MOTION TO EXCLUDE REFERENCES TO OTHER INCIDENTS OF POLICE MISCONDUCT OR BRUTALITY (ECF No. 275) is GRANTED

         Defendants seek to preclude Plaintiff from introducing other unrelated incidents of police misconduct or alleged brutality as such evidence is irrelevant and prejudicial.

         Plaintiff has not put forward any evidence that he seeks to introduce of other incidents or police misconduct or brutality. Plaintiff, however, opposes the Motion on the basis that he may want to rebut the Defendants' contention that Tasers cannot cause serious injury or death. He also claims that other incidents may be relevant for damages.

         Other acts evidence is not admissible pursuant to Fed.R.Evid. 404(b) except for limited purposes such as knowledge and intent. Plaintiff has not put forward any other incidents that he wishes to introduce as relevant or admissible pursuant to Fed.R.Evid. 401, 402, or 404(b). In addition, such evidence is likely inadmissible as unduly prejudicial pursuant to Fed.R.Evid. 403. Courts have regularly held that evidence of other unrelated incidents of police misconduct is inadmissible. Duran v. City of Maywood, 221 F.3d 1127, 1132-33 (9th Cir. 2000) (evidence of another unrelated shooting involving the officer defendant was not admissible as unduly prejudicial); Castro v. Cnty. of Los Angeles, 2015 WL 4694070, *11-*12 (C.D. Cal. Aug. 3, 2015) (evidence of police killings of civilians in other cases and the protests related thereto was inadmissible); Puckett v. Zamora, 2015 WL 3869662, *2 (E.D. Cal. June 23, 2015) (evidence of other unrelated incidents were inadmissible).

         Defendants' Motion In Limine No. 5 To Exclude References To Other Incidents Of Police Misconduct Or Brutality (ECF No. 275) is GRANTED.

         Plaintiff may not present other such incidents without providing notice and an opportunity for Defendants' to object outside of the hearing of the jury.

         DEFENDANTS' ...


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