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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8
9 Adam Bernard Sernas, No. CV-19-00730-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 Unknown Cantrell, et al.,
13 Defendants
14
15 Before the Court are the partiesâ Motions in Limine. Plaintiff has filed two Motions
16 (Docs. 134 and 135) to which Defendants have filed Responses (Docs. 136 and 137)1.
17 Defendants have filed four Motions (Docs. 130, 131, 132 and 133) to which Plaintiff has
18 filed Responses (Docs. 138, 142, 143, 144.) The Court will address Defendantsâ Motions
19 in turn.
20 I. Background2
21 Plaintiff, Adam Sernas filed a claim under 42 U.S.C. 1983, alleging that
22 Defendants, Arizona State Prison Complex detention officers, violated his Eighth
23 Amendment rights by failing to protect him from violence by other inmates. Plaintiffâs
24 claim is that Defendants Cantrell and Collars were deliberately indifferent to his fears based
25
1 Further clarification of the parties proffered evidence is required for the Court to address
26 Plaintiffs Motions in Limine Nos. 1 and 2. Therefore, the Defendants must come to the
Final Pretrial Conference prepared to specify the type of testimony and evidence it seeks
27 to introduce about Plaintiffs drug use and disciplinary history.
2 These brief facts are taken from the Ninth Circuits Memorandum (Dc. 114-1). However,
28 the Courtâs Summary Judgment Order more fully describes the background and history of
facts leading up to the assault on Plaintiff. See (Doc. 107).
1 upon threats by other inmates and that they failed to protect him. Plaintiff alleges that he
2 repeatedly informed Defendants that he was asked to hold drugs for other inmates but
3 refused to so, which then resulted in threats of harm from other inmates in the general
4 population unit. Plaintiff was in the âRefuse to Houseâ unit when he informed officials of
5 his fears, explaining that if he returned to the general population unit, Barchey, he would
6 face injury or death. When correction officials returned Plaintiff to Barchey, he was
7 attacked. Plaintiff was unable to identify the inmates who threatened him or who actually
8 attacked him. Plaintiff alleges that Defendants Cantrell and Collars failed to protect him
9 and failed to investigate the threats.
10 II. Motions in Lime â Legal Standards
11 âAlthough the Federal Rules of Evidence do not explicitly authorize in limine
12 rulings, the practice has developed pursuant to the district courtâs inherent authority to
13 manage the course of trials.â Luce v. United States, 469 U.S. 38, 40 n.4 (1984). Motions in
14 limine âallow parties to resolve evidentiary disputes ahead of trial, without first having to
15 present potentially prejudicial evidence in front of a jury.â Brodit v. Cabra, 350 F.3d 985,
16 1004â05 (9th Cir. 2003) (citations omitted). Generally, motions in limine that seek
17 exclusion of broad and unspecific categories of evidence are disfavored. See Sperberg v.
18 Goodyear Tire and Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). Motions in limine are
19 âentirely within the discretion of the Court.â Jaynes Corp. v. American Safety Indem. Co.,
20 2014 WL 1154180, at *1 (D. Nev. March 20, 2014) (citing Luce, 469 U.S. at 41â42).
21 Moreover, â[a] motion in limine is not the proper vehicle for seeking a dispositive ruling
22 on a claim, particularly after the deadline for filing such motions has passed.â Hana Fin.,
23 Inc. v. Hana Bank, 735 F.3d 1158, 1162 (9th Cir. 2013), affâd, 135 S. Ct. 907, 190 L. Ed.
24 2d 800 (2015) (citing Dubner v. City & Cnty. of S.F., 266 F.3d 959, 968 (9th Cir. 2001).
25 Motions in limine are âprovisional.â Goodman v. Las Vegas Metro. Police Depât, 963
26 F.Supp.2d 1036 (D. Nev. 2013), affâd in part, revâd in part, and dismissed in part on other
27 grounds, 613 F. Appâx 610 (9th Cir. 2015).
28 . . . . .
1 The Court issues its rulings on the record currently before it. Therefore, rulings on
2 such motions âare not binding on the trial judge [who] may always change his [or her]
3 mind during the course of a trial.â Id. (quoting Ohler v. United States, 529 U.S. 753, 758
4 n.3 (2000) (citing Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to
5 change, especially if the evidence unfolds in an unanticipated manner))). âDenial of a
6 motion in limine does not necessarily mean that all evidence contemplated by the motion
7 will be admitted to trial. Denial merely means that without the context of trial, the court is
8 unable to determine whether the evidence in question should be excluded.â Id. (quoting
9 Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004)).
10 A. Burden of Proof
11 Motions to exclude evidence require the party seeking exclusion to inform the Court
12 of the evidenceâs substance with specificity. See Fed.R.Evid. 103(a)(2); United States v.
13 Bradford, 905 F.3d 497, 505 (7th Cir. 2018)(finding a motion in limine did not satisfy Rule
14 103(a)âs specificity requirement by failing to identify the specific evidence or explain its
15 admissibility).3 The party offering the evidence and testimony at trial bears the burden of
16 proof that it is relevant under Rule 401 and not prejudicial under Rule 403. Federal Rule
17 of Evidence 401 provides that â[e]vidence is relevant if it has any tendency to make a fact
18 more or less probable than it would be without the evidence and the fact is of consequence
19 in determining the action.â Fed. R. Evid. 401. Under Rule 402, relevant evidence is
20 admissible unless otherwise provided. Fed. R. Evid. 402. However, all relevant evidence
21 is subject to the balancing test set forth by Rule 403. That is, a court âmay exclude relevant
22 evidence if its probative value is substantially outweighed by a danger of one or more of
23 the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
24 wasting time, or needlessly presenting cumulative evidence.â Fed. R. Evid. 403.
25 . . . . .
26 . . . . .
27
28 3 Except where otherwise noted, all âRuleâ references are to the Federal Rules of
Evidence.
1 III. Defendantsâ Motions in Limine
A. Defendantsâ Motion in Limine No. 1 (Doc. 130) Re: Plaintiffâs Past
2
Medical Bills
3
Defendants move to preclude Plaintiff from introducing any evidence or witnesses
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regarding his medical bills prior to his release from prison, arguing that Plaintiff did not
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timely disclose this evidence, and he failed to provide a computation of medical damages,
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including a proper itemization of expenses. (Doc. 130 at 1â2.) They also argue that the
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collateral source rule bars Plaintiff from seeking damages for medical expenses incurred
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while he was in state custody because his claims are against the State, and the State, not a
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collateral source, was required by law to pay those expenses. (Id.)
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1. Disclosure Issues
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The parties do not dispute that Plaintiff did not disclose his in-custody medical bills
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to Defendants until April 29, 2025, well past the deadline to supplement disclosures and
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discovery, and he did not include these expenses in any prior computation of damages.
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Plaintiff presents evidence, though, that for the first time on March 13, 2025, he received
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notice from the Arizona Health Care Cost Containment System Administration
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(AHCCCSA) that AHCCCS paid those expenses and was seeking to recover its costs by
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asserting a lien/claim to any damages Plaintiff received in settlement of this action.
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(Doc. 138-1.) Plaintiff argues that counsel previously thought ADCRR paid all Plaintiffâs
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in-custody medical expenses, so Plaintiff had no reason to seek compensation for those
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costs in this action. (Doc. 138 at 3.) Then, after receiving notice that AHCCCS paid these
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bills and was now asserting a lien for repayment, Plaintiff âobtained the bills as quickly as
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possibleâ and disclosed them to Defendants with the first draft of the Joint Proposed
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Pretrial Order (JPPO), thereby giving Defendants an opportunity to consider the AHCCCS
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lien prior to the final JPPO and ahead of trial preparation. (Id.)
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Under these facts, Plaintiffâs delayed disclosure was not purposeful and was
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substantially justified, and Defendants have not demonstrated any prejudice from the late
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disclosure. See Fed. R. Civ. P. 37 (sanctions for failure to disclose do not apply if the
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failure was âsubstantially justified or is harmlessâ). The proffered evidence also includes
1 itemized records of Plaintiffâs medical expenses, so Defendants were not harmed by
2 Plaintiffâs failure to previously provide a computation of this category of damages.
3 2. Collateral Source Rule
4 The collateral source rule âpermits an injured party to recover medical expenses
5 from a tortfeasor, notwithstanding reimbursement of such expenses by the injured party
6 from a third party, if such reimbursement is from a âcollateral sourceâ and not from a
7 tortfeasor.â Siverson v. United States, 710 F.2d 557, 559 (9th Cir. 1983). The rule serves
8 to âprohibit[] tortfeasors from avoiding liability for damages in situations in which an
9 injured party has been compensated by a third party.â Sw. Fiduciary, Inc. v. Arizona Health
10 Care Cost Containment Sys. Admin., 249 P.3d 1104, 1107 (Ariz. Ct. App. 2011). This
11 means that a plaintiff who has already received compensation for his medical expenses
12 from a third party, such as a private insurer, may also seek damages from the tortfeasor for
13 the same medical bills, potentially resulting in double-compensation; however, he may not
14 do so if the tortfeasor, not a âcollateral source,â covered those expenses. In applying this
15 rule, Arizona courts make no distinction between third party payments from private
16 insurers, government payors, or write-offs pursuant to contractual agreements with medical
17 providers. Lopez v. Safeway Stores, Inc., 129 P.3d 487, 495 (Ariz. Ct. App. 2006).
18 Because AHCCCS, a third-party government payor, paid Plaintiffâs pre-release
19 medical bills, the collateral source rule entitles Plaintiff to seek compensation for those
20 expenses in this action. See Sw. Fiduciary, 249 P.3d at 1109 (âArizonaâs collateral source
21 rule allows a victim whose medical expenses are paid by a government payor to seek
22 recovery of those expenses from a tortfeasorâ). Defendants do not meaningfully argue
23 otherwise. They point out that, under Arizona law, the ADCRR director is required to
24 âprovide medical and health servicesâ for state prisoners. (Doc. 130 at 2 (quoting Ariz.
25 Rev. Stat. § 31-201.01(D)).) But they fail to acknowledge that the proffered evidence
26 shows that AHCCCS, not ADCRR, actually paid for those services. Defendants also rely
27 on Arizona Revised Statute § 31-201.01(E), which states that â[a]ny and all causes of
28 action that may arise out of tort caused by the director, prison officers or employees of the
1 department . . . shall run only against the state,â to argue that, here, the State is both the
2 tortfeasor and the entity that paid for Plaintiffâs medical care. (Id.) Hence, they argue, âif
3 Plaintiff gets to introduce [his medical bills] at trial, the State may have to pay for such
4 medical bills twice.â (Id.)
5 As noted, Defendants fail to show that the State, via ADCRR, paid Plaintiffâs in-
6 custody medical bills. To the extent Defendants conflate AHCCCS with the State to
7 support their double payment theory, this argument also fails. Even though AHCCCS is a
8 state-run program operated by the AHCCCSA, it is not synonymous with the State; instead,
9 it is a Medicaid plan that relies in large part on federal funding and approval to provide
10 benefits to qualified residents. See, e.g., Arizona Hosp. & Medicaid Healthcare Assân v.
11 Betlach, 865 F. Supp. 2d 984, 986 (D. Ariz. 2012). Additionally, Plaintiff is not seeking
12 damages for himself but merely to satisfy a lien AHCCCS placed on his potential damages
13 in this action. Under Arizona law, AHCCCS has this right. See Ariz. Rev. Stat. Ann. §
14 36-2915 (AHCCCS âis entitled to a lien for the charges for hospital or medical care and
15 treatment of an injured person for which [it] is responsible, on any and all claims of liability
16 or indemnity for damages accruing to the person to whom hospital or medical service is
17 renderedâ). Moreover, â[f]ederal law requires states to establish procedures by which state
18 Medicaid plans may be reimbursed by third-party tortfeasors for payments the plans make
19 on behalf of injured persons to whom tortfeasors are legally liable.â Sw. Fiduciary, 249
20 P.3d at 1109 (emphasis added). Plaintiff therefore not only has a right to seek damages
21 under the collateral source rule but an obligation to do so to satisfy the lien AHCCCS
22 lawfully placed on his potential damages in this action and will potentially suffer
23 deductions from any damages awarded if these expenses are not included.
24 Defendantsâ Motion in Limine No. 1 (Doc. 130) is denied.
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B. Defendantsâ Motion in Limine No. 2 (Doc. 131) Re: Violation of Prison
26 Policies
27 Defendants move to preclude Plaintiffâs expert, Will Adams, from offering ultimate
28 opinions on Defendantsâ alleged violation of prison policies, arguing that these opinions
1 go to the ultimate issue of the case. (Doc. 131 at 1.) As an additional ground for precluding
2 the report, Defendants argue that Mr. Adamsâ statements that Plaintiff likely would not
3 have been injured if staff had exercised due care and diligence are merely conclusory. (Id.)
4 They claim Adams opines that âadherence to . . . proper investigation procedures . . . would
5 likely have prevented [Plaintiff]âs injury,â but make only âvague references to a complete
6 investigation taking placeâ and âdoes not specify which prison policy was violated.â (Id.)
7 1. Ultimate Issues
8 An expert witness may express an opinion on an ultimate issue to be decided by the
9 trier of fact. Fed. R. Evid. 704(a); United States v. Kinsey, 843 F.2d 383, 388 (9th Cir.
10 1988), overruled on other grounds by, United States v. Nordby, 225 F.3d 1053 (9th Cir.
11 2000). âIt is well-established . . . that expert testimony concerning an ultimate issue is not
12 per se improper.â Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1017 (9th
13 Cir. 2004) (quotation omitted). âAn ultimate issue opinion by a properly qualified expert
14 should not be excluded except in the extreme case where the expertâs opinion is inherently
15 misleading or unfairly prejudicial.â Kinsey, 843 F.2d at 389. But âan expert witness cannot
16 give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.â
17 United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017). âWhen an expert undertakes to
18 tell the jury what result to reach, this does not aid the jury in making a decision, but rather
19 attempts to substitute the expertâs judgment for the juryâs [judgment].â Id. (quotation
20 omitted).
21 Defendants object to Adamsâ statements in his report that Defendantsâ conduct in
22 this action was deliberately indifferent. They claim without citation that âAdams states in
23 his report that prison staff violated prison policies and procedures, resulting in deliberate
24 indifference to Plaintiffâs safety.â (Doc. 131 at 2â3.) They correctly note that âwhether
25 the Defendantsâ alleged [conduct] amounted to deliberate indifference to a serious risk to
26 the Plaintiffâs safetyâ is an ultimate legal issue reserved for a jury. (Id. at 2.) See Farmer
27 v. Brennan, 511 U.S. 825, 834 (1994) (to prevail on an Eighth Amendment claim a plaintiff
28 must make an objective showing of a substantial risk of serious harm and a subjective
1 showing of âdeliberate indifferenceâ).
2 Defendants rely on Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994), for
3 the proposition that experts must not substitute their opinion for that of the jury on this
4 issue. (Doc. 131 at 2.) Berry stated,
5 [t]he expert can testify, if a proper foundation is laid, that the
discipline in the Detroit Police Department was lax. He also
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could testify regarding what he believed to be the
7 consequences of lax discipline. He may not testify, however,
that the lax discipline policies of the Detroit Police Department
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indicated that the City was deliberately indifferent to the
9 welfare of its citizens.
10 25 F.3d at 1353 (emphasis in original).
11 Plaintiff argues that Mr. Adams never used the term âdeliberate indifferenceâ or the
12 word âdeliberateâ in his report or deposition, and even though he used the word
13 âindifferenceâ or âindifferentâ a few times, he did so only generally to refer to the lax
14 attitude of all Barchey correctional staff toward their duty to protect prisoners (Doc. 139
15 at 1â2.) Plaintiff maintains that this use of the word comports with its standard dictionary
16 meaning and that such use âin no way amounts to an improper attempt to instruct the jury
17 and does not supplant their role.â (Id. at 3.)
18 In the opinion section of his report, Mr. Adams frequently describes Barchey
19 correctional staff as âinattentiveâ and âcomplacentâ or as having a âgeneral disregardâ for
20 prisonersâ security concerns. (See Doc. 142-1 at 14, 15, 16, 17.) He also describes
21 Defendant Cottrellâs failure to affirmatively act to protect Plaintiff as âindicative of
22 inattention to Mr. Sernasâ request for protection and complacency.â (Id. at 14,) And he
23 opines that Defendants âfailed to supervise and manage their areas of responsibility in a
24 manner consistent with industry standards, due care, and to abide by their duty to protect
25 Mr. Sernas from harm.â (Id. at 17.) He similarly opines that Defendants âfailed to exercise
26 due care and caution to ensure Mr. Sernas was safe from harm.â (Id. at 18.) Contrary to
27 Defendantsâ argument, however, Mr. Adams never opines that Defendantsâ conduct
28 equates to deliberate indifference. He uses the word âindifference,â in only two places.
1 He states, â[i]t is my opinion that ADCRR staff at the Barchey facility in 2017 and 2018
2 were indifferent to Mr. Sernas and his security needs,â and,
3 [t]here was indifference and negligence regarding the duty of
all correctional staff to protect the health and welfare of
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incarcerated persons by the staff at Barchey Facility in 2017
5 and 2018, and this indifference led to Mr. Sernas being
severely injured and suffering long term effects from that
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injury.
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(Id. at 18.)
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The Court is not persuaded that minimal uses of the word âindifferenceâ result in
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impermissible expert opinion on an ultimate issue of law. The two places where Adams
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uses the word indifference merely describe the attitudes of correctional staff, generally, not
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the state of mind of Defendants. Additionally, Adams employs this word colloquially, in
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the same vein as other adjectives, such as âinattentiveâ or âcomplacent,â not in the precise,
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technical way courts define deliberate indifference for Eighth Amendment purposes. See,
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e.g., Farmer, 511 U.S. at 837 (explaining that an official acts with deliberate indifference
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if she âknows of and disregards an excessive risk to inmate health or safety; the official
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must both be aware of facts from which the inference could be drawn that a substantial risk
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of serious harm exists, and he must also draw the inference.â) Adamâs limited uses of the
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word indifference, not âdeliberate indifference,â as used in the Eighth Amendment context,
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do not equate to offering an ultimate opinion on this legal issue or pervade the role of the
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jury to decide. As explained in Diaz, âit is sometimes impossible for an expert to render
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his or her opinion on a subject without resorting to language that recurs in the applicable
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legal standard.â 876 F.3d at 1198. However, âif the terms used by an expert witness do
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not have a specialized meaning in law and do not represent an attempt to instruct the jury
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on the law, or how to apply the law to the facts of the case, the testimony is not an
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impermissible legal conclusion.â Id. at 1199. So, the Court cautions Adams that overuse
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of the term âindifferenceâ and âdeliberately indifferentâ in his testimony may pervade the
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role of the jury.
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. . . . .
1 2. Conclusory Opinions
2 To the extent Defendants also object to Mr. Adamâs opinions as being merely
3 conclusory on the ground that Adams does not identify specific policies in his report that
4 Defendants violated, this argument is baseless. The report identifies several measures that
5 Adams states, in his professional opinion, Defendants could have and should have taken to
6 address the risk of harm to Plaintiff. These include Adamâs opinion that correctional staff
7 have an obligation to âconduct and document a thorough investigationâ into a prisonerâs
8 allegations of a threat; that the assigned investigator has a duty to âlook into all claims,
9 interview sources, interview gang and narcotics officers, interview housing staff, and
10 conduct other surveillance activities related to . . . communications monitoring;â and that
11 âif management and classification staff do not have a completed and documented
12 investigation to refer to . . . the inmateâs version of events must be regarded as true . . . and
13 the inmate transferred to housing in a facility away from that in which the threat originated
14 and might still exist.â (Doc. 142-1 at 11, 13, 16, 17.)
15 These opinions are not conclusory; nor does the report need to identify specific
16 ADCRR policies Defendants violated to speak to the constitutional question at issue. Mr.
17 Adamsâ opinions about what industry standards require and what he, in his professional
18 opinion, believes should have been done to keep Plaintiff safe are relevant to this question.
19 And Defendantsâ objections to the conclusory nature of these opinions merely go to the
20 weight, not the admissibility, of Adamsâ report, and are not a basis to preclude Plaintiff
21 from relying on this evidence at trial. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
22 579, 596 (1993) (âVigorous cross-examination, presentation of contrary evidence, and
23 careful instruction on the burden of proof are the traditional and appropriate means of
24 attacking shaky but admissible evidence . . . [that otherwise] meets the standards of Rule
25 702.â).
26 Defendantsâ Motion In Limine No. 2 (Doc. 131) is denied.
27 . . . . .
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1 C. Defendantsâ Motion in Limine No. 3 (Doc. 132) Re: Plaintiffâs
Conclusory Expert Opinions
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Although differently titled, Defendantsâ Motion in Limine No. 3 is substantively
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identical to their Motion in Limine No. 2. It is not clear why Defendants filed two Motions
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asserting the same arguments, but because the Court has already rejected those arguments,
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this Motion is moot.
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Defendantsâ Motion In Limine No. 3 (Doc. 132) is denied as moot.
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D. Defendantsâ Motion in Limine No. 4 (Doc. 133) Re: Plaintiffâs Experts
9 Lemke and Adams Improper Disclosure
10 Defendants move to exclude Dr. Robert Lemke and William Adams from testifying
11 at trial, asserting that they were improperly disclosed under Rule 26 and were not timely
12 disclosed. (Doc. 133 at 1). Defendants say âPlaintiff attempted to disclose Dr. Lemke in
13 his Third Supplemental Disclosure (Doc. 63) and William Adams in his Fifth Supplemental
14 Disclosure (Doc. 87)[,] [h]owever both disclosures were improper.â (Id. at 2). This,
15 Defendants say, warrants their exclusion at trial.
16 Both Defendants and Plaintiff acknowledge that Dr. Lemke and Adams were
17 disclosed as witnesses at Doc. 63 and Doc. 87. Plaintiff asserts that Defendants received
18 his expertsâ reports in a timely manner and that âthey deposed both experts within the court
19 ordered time constraints [and] following their depositions,â which occurred over two years
20 ago. (Doc. 144 at 3). Thereafter, Defendants filed their Motion for Summary Judgment.
21 Defendants correctly point out that â[i]f a party fails to provide information or
22 identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
23 information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
24 failure was substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1) (emphasis added).
25 Though in its review of the docket, the Court cannot tell what form Plaintiffâs disclosures
26 took and to what extent they may or may not have conformed to Rule 26, clearly,
27 Defendants are not prejudiced. As Plaintiff notes, both Dr. Lemke and Adams were
28 deposed by Defendants. So, they were anticipated as witnesses by Defendants. Under these
1 || circumstances, it is hard to see what, if any, prejudice Defendants face if Dr. Lemke and
2|| Mr. Adams were permitted to testify.
3 Defendantsâ Motion in Limine No. 4 (Doc. 133) is denied.
4 IT IS ORDERED denying Defendantsâ Motions in Limine (Docs. 130, 131, 132
and 133).
6 Dated this 3rd day of June, 2025.
7
8 Do we âĄ
? norable'Dian¢g/4. Hunfetewa
10 United States District Fudge
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-12- Case Information
- Court
- D. Ariz.
- Decision Date
- June 3, 2025
- Status
- Precedential