Opinion
4:19-cv-07899-KAW
09-13-2021
NICOLE COBARRUBIA, Plaintiff, v. JEFFERY EDWARDS, Defendant.
PRETRIAL CONFERENCE TENTATIVE RULINGS
KANDIS A. WESTMORE, UNITED STATES MAGISTRATE JUDGE
I. PLAINTIFF'S OBJECTIONS TO THE JOINT PRETRIAL STATEMENT
On August 31, 2021, Plaintiff filed an objection to the joint pretrial statement. (Dkt. No. 87.) Plaintiff is now objecting to facts that were identified as being undisputed in the joint pretrial statement that Plaintiff's counsel, DeWitt M. Lacy, signed. (See Id. at 3-4; cf. Joint Pretrial Statement, “JPS, ” Dkt. No. 65 at 3-4, 16.) Since Plaintiff's counsel agreed those facts were undisputed on August 24, 2021, the Court is inclined to overrule all objections, which includes the fact that Plaintiff is precluded from recovering damages connected to any injuries from the distraction blows because she abandoned that claim in connection with the motion for summary judgment. The Court notes that these facts were deemed undisputed in the amended summary judgment order, filed on February 25, 2021 (Dkt. No. 56).
II. MOTIONS IN LIMINE
Relevant evidence is any evidence that has any tendency to make a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Fed.R.Evid. 401. The Court has discretion to “exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
MIL
Motion
Ruling
Reason/Explanation
P1
To exclude Defendant's expert Don S. Cameron
DENIED
Defendant opposes. Mr. Cameron is a general use of force expert, which includes the training and methodology on deploying a K9 as one of several uses of force. Plaintiff fails to identify how, if at all, Mr. Cameron's testimony should be limited.
P2
To exclude Defendant's unretained expert Dave Reaver
DENIED
Defendant opposes. Defendant timely disclosed Mr. Reaver, and provided sufficient information regarding his anticipated testimony. Plaintiff could have taken his deposition but declined to do so despite having sufficient time to seek court intervention to compel the deposition if necessary.
P3
To exclude evidence of prior bad acts of Plaintiff Nicole Cobarrubia
GRANTED IN PART; DENIED IN PART
Defendant opposes. While Plaintiff has failed to identify all prior bad acts that she seeks to exclude, the prejudicial value of most convictions generally outweighs the probative value. Since the deputies knew of Plaintiff's propensity to arm herself with various weapons, the Court is inclined to only exclude those unrelated acts prior to December 4, 2017 that were unknown to Defendant at the time of the incident. Defendant should be prepared to identify which Rule 404(b) exception permits the inclusion of the 2016 incident. The Court is not inclined to exclude that Plaintiff was on probation for being a felon in possession of ammunition. The parties are ordered to meet and confer regarding a list of prior bad acts that would be subject to exclusion and shall submit a stipulation of prior bad acts that they agree are subject to exclusion by Tuesday, September 14, 2021.
P4* (* labeled P3)
Technology in the Courtroom: Permit medical providers to testify via Zoom
DENIED
Defendant opposes. Plaintiff does not identify which medical providers are seeking to testify via Zoom, and the Court is inclined to deny blanket permission to testify remotely for failure to show good cause or compelling circumstances under Federal Rule of Civil Procedure 43(a).
D1
To exclude evidence or testimony of unrelated acts or incidents, lawsuits or complaints against Defendant, the County or other law enforcement entities
GRANTED
Plaintiff does not oppose. Introduction of complaints and allegations of misconduct may also present a hearsay issue. Evidence pertaining to the Black Lives Matter movement and the killings of Oscar Grant, George Floyd and others have no relevance to the instant case and create a risk of undue prejudice.
D2
To exclude or limit evidence, testimony or argument for undisclosed damages; particularly special damages, lost wages and lost earning capacity
GRANTED
Plaintiff does not oppose. Rule 37 permits the exclusion of information at trial that was not properly disclosed under Rule 26.
D3
To limit or exclude the testimony of Plaintiff's expert Ernest Burwell
GRANTED IN PART
Plaintiff opposed. Mr. Burwell's expert report is replete with improper opinions. He is only permitted to testify regarding the reasonableness of the duration of the bite hold after Plaintiff battered the K9, and how police K9s are typically used. He may testify as to a bite hold's typical effect on a suspect. He may not provide unsubstantiated opinions regarding the use of K9s that may reflect negatively on their use by law enforcement. He may not opine regarding the lawfulness of the initial bite, the extent of Plaintiff's injuries or whether she was resisting arrest or otherwise committing a crime during the entire bite hold. He also may not testify regarding whether the distraction blows were justified. He may not furnish a legal opinion.
D4
To preclude evidence, testimony or argument related to post-incident review by the County of Alameda
GRANTED
Plaintiff does not oppose. Introduction of post-incident review evidence, testimony, and argument is excluded by Federal Rules of Evidence 403 and 407.
D5
To preclude Reptile/Golden Rule arguments, evidence and testimony
DENIED
Plaintiff opposes. While the parties should refrain from engaging in improper argument, the Court will not categorically prohibit this particular trial strategy or form of argument.
III. EVIDENTIARY ISSUES
A. Objections
Defendant raises two objections to Plaintiff's witnesses, and four objections to 11 of Plaintiff's exhibits. (Def.'s Obj., Dkt. No. 88.) Specifically, Defendant seeks to completely exclude the testimony of Gregg Stutchman, who was not disclosed and for whom an expert report was never provided; and to limit the testimony of Dr. Amber Jones, the emergency room physician who treated Plaintiff immediately following the incident. Id. at 1. Defendant also seeks to exclude the following exhibits: 2) the International Association of Chiefs of Police's (“IACP”) Model Policy for Law Enforcement Interactions with Canines; 3) IACP's Model Policy for Law Enforcement Canines; 6) Alameda County Sheriff's Office General Order 5.34 (“Canine Program”); 7) Alameda County Sheriff's Office General Order 1.05 (“Use of Force”); 12) Stutchman Video (the digitally enhanced excerpt of Defendant's body-worn camera footage); 13) California Commission on Peace Officer Standards and Training (“POST”) Learning Domain 1: Leadership, Professionalism, and Ethics; 14) POST Learning Domain 3: Policing in the Community; 15) POST Learning Domain 5: Introduction to Criminal Law; 16) POST Learning Domain 15: Laws of Arrest; 17) POST Learning Domain 16: Search and Seizure; and 18) POST Learning Domain 23: Crimes in Progress. Id. at 3-8.
The Court is inclined to sustain most, if not all of the objections, so Plaintiff should be prepared to discuss at the pretrial conference.
B. Exhibits
The Court is committed to reducing any unnecessary time spent in the courtroom, so the parties are ordered to meet and confer regarding stipulating to the admission of any exhibits to which they do not object. //
IV. VERDICT FORM
A. Heck Bar issue
Plaintiff objects to Defendant's proposed verdict form on the grounds that it is a “backdoor attempt to reinsert the Heck Doctrine/Bar, which this Court has determined to be inapplicable.” (Dkt. No. 86 at 4.) This is a misstatement of the Court's summary judgment order, which clearly found that the initial bite and the duration of the bite prior to Plaintiff's battery of the K9 to be barred by Heck. (Dkt. No. 56 at 11-12, 13.) The jury is tasked with determining if and when Plaintiff stopped resisting arrest, and whether the duration of the bite was excessive under the circumstances.
B. Draft Verdict Form
The parties submitted separate proposed verdict forms. After reviewing the parties' submissions, the Court has attached a draft form as Attachment A. The parties should be prepared to discuss the proposed form at the pretrial conference.
V. JURY INSTRUCTIONS
The parties submitted joint proposed jury instructions, and Defendant submitted additional proposed instructions to which Plaintiff did not agree. (Joint Jury Instructions, Dkt. No. 72; Def.'s Proposed Jury Instructions, Dkt. No. 73.) Plaintiff did not propose any additional instructions but did file objections to Defendant's proposed instructions. (Pl.'s Obj., Dkt. No. 85.) The Court will address the jury instructions at the pretrial conference, and is also inclined to advise the jury on unconscious bias, which is attached as Attachment B.
VI. PROPOSAL TO BIFURCATE
While Defendant did not file a formal motion, the Court intends to deny Defendant's proposal to bifurcate the trial into liability and damages phases. (JPS at 16.) Since Plaintiff is not entitled to present evidence of special damages and is precluded from introducing damages related to the distraction blows, it is likely not economical or efficient to bifurcate the trial the trial into two distinct phases.
VII. COVID PRECAUTIONS
In light of the ongoing pandemic, the undersigned is committing to keeping the jurors, the parties, counsel, and court staff as safe as possible. The parties should be prepared to discuss the ability to pivot to a hybrid Zoom trial should there be a positive COVIID-19 case or exposure.
Universal masking in the courtroom and courthouse will be required, but the parties should also be prepared to discuss other COVID-related issues, including the vaccination status of counsel, the parties, and witnesses, and what other precautions may be taken to keep everyone safe.
Finally, all persons entering the courthouse are required to review the Northern District's “COVID-19 Pre-screening Questionnaire, ” available online at https://www.cand.uscourts.gov/wp-content/uploads/clerks-office/CAND-COVID-19-Pre-Screening-Questionnaire 8-2-2021.pdf, and attached hereto as Attachment C. Anyone experiencing any listed symptoms, including fever or cold-like symptoms, is not permitted to enter the courthouse. If this happens, the parties are directed to notify the courtroom deputy at kawcrd@cand.uscourts.gov.
IT IS SO ORDERED.
ATTACHMENT A - DRAFT VERDICT FORM
WE, THE JURY in the above-entitled action, unanimously find as follows on the questions submitted to us:
1. Did Plaintiff Nicole Cobarrubia cease resisting the deputies' attempts to handcuff her before Defendant Jeffery Edwards disengaged the K9 from biting her arm?
YES___ NO____
If you answered “Yes, ” proceed. If you answered “No, ” skip the remaining questions and sign and date this form.
2. Has Plaintiff Cobarrubia proven by a preponderance of the evidence that Defendant Edwards's use of the K9 during the limited timeframe (beginning after Plaintiff was bitten and stopped striking the K9 and concluding when the K9 released its bite hold) was objectively unreasonable in light of the facts and circumstances?
YES___ NO____
If you answered “Yes, ” proceed. If you answered “No, ” skip the remaining questions and sign and date this form.
3. Has Plaintiff Cobarrubia proven by a preponderance of the evidence that Defendant Edwards's conduct was the cause of her injury?
YES___ NO____
If you answered “Yes, ” proceed. If you answered “No, ” skip the remaining questions and sign and date this form.
Damages
4. What is the total amount of damages suffered by Plaintiff Nicole Cobarrubia? In determining an award of damages, you must consider whether, and to what extent, Plaintiff has failed to mitigate her damages.
$ _________
Proceed to Question No. 5.
5. What percentage of Plaintiff Cobarrubia's damages were incurred before she ceased striking the K9 and/or resisting the deputies' attempts to handcuff her?
Injuries before Plaintiff ceased resisting___________ %
Injuries after Plaintiff ceased resisting _______%
Total injuries 100 %
Proceed to Question No. 6.
6. Has Plaintiff Cobarrubia proven that Defendant Edwards's conduct was malicious, oppressive, or in reckless disregard of Plaintiff's constitutional rights?
YES___ NO____
If you answered “Yes, ” proceed. If you answered “No, ” skip the remaining questions and sign and date this form.
7. What amount, if any, do you award to Plaintiff Cobarrubia as punitive damages?
$ __________
Dated: ________
Presiding Juror_______
ATTACHMENT B - UNCONSCIOUS BIAS JURY INSTRUCTION
We all have feelings, assumptions, perceptions, fears, and stereotypes about others. Some biases we are aware of, and others we might not be fully aware of, which is why they are called implicit or unconscious biases. No. matter how unbiased we think we are, our brains are hardwired to make unconscious decisions. We look at others and filter what they say through our own personal experience and background. Because we all do this, we often see life and evaluate evidence in a way that tends to favor people who are like ourselves, or who have had life experiences like our own. We can also have biases about people like ourselves. One common example is the automatic association of male with career and female with family. Bias can affect our thoughts, how we remember what we see and hear, whom we believe or disbelieve, and how we make important decisions.
As jurors, you are being asked to make an important decision in the case. You must one, take the time you need to reflect carefully and thoughtfully about the evidence.
Two, think about why you are making the decision you are making and examine it for bias. Reconsider your first impressions of the people and the evidence in this case. If the people involved in this case were from different backgrounds, for example, richer or poorer, more or less educated, older or younger, or of a different gender, gender identity, race, religion or sexual orientation, would you still view them, and the evidence, the same way?
Three, listen to one another. You must carefully evaluate the evidence and resist, and help each other resist, any urge to reach a verdict influenced by bias for or against any party or witness. Each of you have different backgrounds and will be viewing this case in light of your own insights, assumptions and biases. Listening to different perspectives may help you to better identify the possible effects these hidden biases may have on decision making.
And four, resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or unconscious biases.
The law demands that you make a fair decision based solely on the evidence, your individual evaluations of that evidence, your reason and common sense, and these instructions.
ATTACHMENT C - COVID-19 PRE-SCREENING QUESTIONNAIRE
The court is taking precautions and requiring each person who enters a courthouse to review this pre-screening questionnaire before leaving home to come to the courthouse. This questionnaire is for your review and self-evaluation only and does not need to be printed or submitted to the court.
If you answer Yes to any of the below:
And you are a case participant, contact the courtroom deputy clerk for the case.
And you are an empaneled juror, contact the courtroom deputy clerk for the case.
And you are a prospective juror, contact the Jury Office.
And you are an employee, contact your supervisor or your judge.
1. Are you currently experiencing, or have you experienced in the past 48 hours, any of the following symptoms?
Fever (temperature of 100.4 F or higher) Yes No
Cough Yes No
Sore throat Yes No
Runny or stuffy nose Yes No
New loss of taste or smell Yes No
Nausea or vomiting Yes No
Diarrhea Yes No
2. In the last two weeks, have you or a member of your household tested positive for COVID-19?
Yes No
3. Have you or a member of your household been told by a medical or governmental professional to self-isolate today due to COVID-19?
Yes No
4. Are you or a member of your household currently in self-isolation awaiting COVID-19 test results? (Answer “no” if the test is due to travel plans only.)
Yes No