United States District Court, D. Hawaii
GULSTAN E. SILVA, JR., as Personal Representative of the Estate of Sheldon Paul Haleck, Plaintiff,
CHRISTOPHER CHUNG; SAMANTHA CRITCHLOW; AND STEPHEN KARDASH, Defendants.
ORDER #2 ON DEFENDANTS' MOTIONS IN
GILLMOR UNITED STATES DISTRICT JUDGE.
MOTION IN LIMINE NO. 1
TO EXCLUDE EXPERT OPINIONS BY RICHARD LICHTEN (ECF No. 271)
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
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.
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).
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.
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.
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.
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
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.
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.
Motion in Limine No. 1 To Exclude Expert Opinions By Richard
Lichten (ECF No. 271) is DENIED.
MOTION IN LIMINE NO. 2
TO ENFORCE THE WITNESS EXCLUSIONARY RULE (ECF No. 272) is
Rule of Evidence 615, known as the witness exclusionary rule,
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.
request to invoke the witness exclusionary rule.
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.
MOTION IN LIMINE NO. 3
TO ADMIT EVIDENCE OF PRIOR DRUG USE AND DRUG USE ON THE DAY
OF THE INCIDENT (ECF No. 273)
ruling on Defendants' Motion in Limine No. 3 is set forth
in the Court's Order #3 on Motions in Limine.
MOTION IN LIMINE NO. 4
TO ADMIT EVIDENCE OF HALECK'S ACCIDENTS AND INJURIES
SUSTAINED ONE DAY PRIOR TO THE INCIDENT (ECF No.
ruling on Defendants' Motion in Limine No. 4 is set forth
in the Court's Order #3 on Motions in Limine.
MOTION IN LIMINE NO. 5
TO EXCLUDE REFERENCES TO OTHER INCIDENTS OF POLICE MISCONDUCT
OR BRUTALITY (ECF No. 275) is GRANTED
seek to preclude Plaintiff from introducing other unrelated
incidents of police misconduct or alleged brutality as such
evidence is irrelevant and prejudicial.
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.
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
Motion In Limine No. 5 To Exclude References To Other
Incidents Of Police Misconduct Or Brutality (ECF No. 275) is
may not present other such incidents without providing notice
and an opportunity for Defendants' to object outside of
the hearing of the jury.