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Ericson v. City of Phoenix

United States District Court, D. Arizona

November 2, 2016

Yolanda Ericson, et al., Plaintiffs,
City of Phoenix, et al., Defendants.


          James A. Teilborg, Senior United States District Judge.

         Before the Court are Defendants City of Phoenix and Daniel Garcia's (“City Defendants'”) Joint Daubert Motion to Exclude Plaintiffs' Expert Witness Nurse Practitioner Ruth Downing (“Motion to Exclude”), (Doc. 94), Defendant Officer Camarillo's Motion for Summary Judgment, (Doc. 98), and City Defendants' Motion for Summary Judgment, (Doc. 101). The Court now rules on the motions.


         On the morning of July 28, 2013, an individual called Phoenix Police Department (“PPD”) Dispatch to report a shirtless man damaging an A/C unit located on the roof of his apartment, causing water to leak through his ceiling. (PROC at ¶ 6; PRCP at ¶¶ 1, 5; City Ex. 2, 911 Call Audio Recording at 00:08-00:41, 2:10-2:15). Consistent with the 911-call, PPD dispatched officers, including Officer Abraham Camarillo, to the apartment complex regarding a shirtless man on the rooftop attempting to “mess with” an A/C unit. (City Ex. 3, Dispatch Audio Recording at 00:02-27; PROC at ¶ 7). Upon arrival, PPD officers noticed that Miguel[2] Ruiz (“Decedent”) was on the apartment complex's roof. (PRCP at ¶¶ 9, 12). Officer Camarillo was then informed, either by the apartment property manager or another officer, that the property manager wanted to press charges against Decedent for criminal trespass and criminal damage. (Doc. 99-4 at 159- 60; PRCP at ¶¶ 6, 8).

         After the property manager directed Officer Camarillo to Decedent's apartment unit, Camarillo noticed that the door was open, the sound of running water was coming from inside, there was an odor of something actively or recently burnt, and water was flowing out of the opened door onto the pavement below. (PROC at ¶ 10). After knocking on the open door and receiving no answer, Officer Camarillo entered Decedent's empty apartment. (Id. at ¶ 11). He noticed that the bathtub was running, the toilet seat had been torn off, and the pipe connected to the toilet was exposed with water shooting up from it. (Id. at ¶ 12). He also observed residue from small fires on the floor and in the kitchen. (PRCP at ¶ 21).

         Outside, PPD officers were unable to communicate successfully with Decedent while he was on the roof and attempted to reach him using an aerial ladder bucket. (Id. at ¶¶ 10, 26). Because the apartment's roof was “structurally not sound, ” the officers made a decision to “minimize” their time on the roof. (Docs. 99-4 at 238:21-26; PROC at ¶ 17). Three officers ascended to the apartment roof but remained in the bucket, attempting to convince Decedent to also get into the bucket. (PRCP at ¶¶ 29, 30).

         On the roof, officers had a “circular” conversation with Decedent, who stated he could not see them and was afraid to come off the roof because “they” (apparently individuals other than the officers) were trying to kill him.[3] (Id. at ¶ 33). After a few minutes, Decedent walked over to the bucket and officers “grabbed both of his wrists.” (Id. at ¶ 37; PROC at ¶ 18). In this position, officers explained to Decedent that he would be handcuffed for everyone's safety.[4] (PROC at ¶ 22). Decedent thereafter backed away and an officer attempted to tase Decedent, but it is unclear whether both Taser probes struck Decedent; nevertheless, the parties agree that the Taser had no incapacitating effect on Decedent. (PRCP at ¶ 42; PROC at ¶¶ 24, 25). Decedent then sat down on the apex of the roof for approximately 4.5 minutes while officers again attempted to encourage Decedent to return to the bucket. (PRCP at ¶¶ 43, 44).

         On the ground floor, Officer Camarillo watched as Decedent began to scoot towards a second-floor landing outside the front door of an apartment unit. (Id. at ¶ 47). After noticing that the unit's front door was open behind the screen door, Officer Camarillo positioned himself near the stairwell in case Decedent jumped onto the landing to access the unit.[5] (Id. at ¶¶ 48, 50). After Decedent jumped nearly 10 feet to the second-floor landing, Officer Camarillo grabbed him and secured a carotid hold around his neck.[6] (PRCP at ¶¶ 51, 54, 65; PROC at ¶¶ 29, 37, 39). Within a few seconds, other officers attempted to restrain Decedent by his arms and legs. (PRCP at ¶ 54; PROC at ¶ 37). Another officer also tased Decedent multiple times, but, although Decedent continued to struggle, the parties dispute the actual effects of the Taser on Decedent. (See PRCP at ¶¶ 54, 71; PROC at ¶¶ 37, 43, 44).

         After over three minutes from when Officer Camarillo first engaged Decedent, officers were able to handcuff him. (PRCP at ¶ 86; PROC at ¶ 73). After over five minutes into the struggle, officers carried Decedent down a stairway to EMS personnel, who determined that Decedent was pulseless. (PROC at ¶¶ 75, 77). Although EMS resuscitated Decedent, he was taken off life support five days later due to an anoxic brain injury. (Id. at ¶¶ 78, 79).


         Federal Rules of Evidence 702, 704, and 705 concern the testimony of expert witnesses. In their Motion to Exclude, City Defendants challenge the admissibility of nurse practitioner Ruth Downing's expert testimony regarding strangulation. (Doc. 94 at 1; see also Doc. 94-1, “Report Regarding Expert Witness on Strangulation”).

         A. Timeliness of City Defendants' Motion to Exclude

         Plaintiffs contend that City Defendants' Motion to Exclude is actually a discovery dispute and, thus, should be dismissed as untimely. (Doc. 111 at 2-3). Plaintiffs are correct that the Rule 16 Scheduling Order states that “the Court will not entertain discovery disputes after the close of discovery barring extraordinary circumstances.” (Doc. 14 at 2 n.2). However, the present dispute, though obviously related to matters produced in discovery, is not a “discovery dispute” of the sort contemplated by the Court's Scheduling Order. Rather, a Daubert challenge, like that involved here, is in the nature of a motion in limine directed to the use and admissibility of expert testimony. As a result, the Court will not deny City Defendants' Motion to Exclude as untimely.

         B. Requirements for Expert Testimony

         Federal Rule of Evidence 702 (“Rule 702”) provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993) (“Daubert I”), the Supreme Court held that Rule 702 imposes a special gatekeeping obligation upon a trial judge to make a preliminary assessment of the admissibility of expert scientific testimony. Specifically, the Court held that under Rule 702, “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 589. Whether the expert is appropriately qualified, whether her testimony is relevant, and whether her testimony is reliable are all distinct inquiries under Rule 702. See Id . at 591; see also Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1066 (9th Cir. 2002) (indicating that reliability of an expert's testimony is a distinct inquiry from whether an expert is qualified).

         1. Ms. Downing's Qualifications as an Expert

         City Defendants first argue that Ms. Downing, a nurse practitioner, is not qualified to offer an opinion about the role of strangulation in Decedent's death because she lacks particular training. (See Docs. 94 at 4-5; 112 at 4).

         Rule 702 “contemplates a broad conception of expert qualifications . . . [and] is broadly phrased and intended to embrace more than a narrow definition of qualified expert.” Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994). “As the terms of the rule state, an expert may be qualified either by ‘knowledge, skill, experience, training or education.'” Id. (quoting Fed.R.Evid. 702). To satisfy this requirement, only a “minimal foundation of knowledge, skill, and experience” is required. Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004). As a result, a deficiency in one qualification parameter, such as training, is not necessarily dispositive as to whether the expert is qualified overall. For example, courts have held that specialized experience is sometimes of equal or greater importance than medical training in qualifying an expert to opine about some medical causation issues. See Watkins v. Schriver, 52 F.3d 769, 771 (8th Cir. 1995) (determining no abuse of a trial court's discretion to exclude a neurologist's testimony regarding head injuries because the doctor lacked experience in accident reconstruction and forensic medicine); see also Heck v. City of Lake Havasu, No. CV 04-1810-PCT-NVW, 2006 WL 2460917, at *7-8 (D. Ariz. Aug. 24, 2006) (finding that a professor who lacked training in forensic pathology and was not a medical doctor was nevertheless qualified to testify on the medical effects of carbon monoxide because of his “knowledge, skill, and experience”).

         Ms. Downing meets the above qualification standard with respect to her knowledge and experience related to the mechanics and effects of strangulation. Ms. Downing is a nurse practitioner and has been a forensic nurse since 1999. (Doc. 94-1 at 4). She is a member of both the Advisory Team for the Strangulation Training Institute and the Strangulation Task Force for the International Association of Forensic Nurses. (Id.). Additionally, Ms. Downing in an active member of the Ohio Chapter of the International Association of Forensic Nurses and served as the Chapter's president in 2008. (Id.). In 2006, Ms. Downing authored an article entitled “Manual and Ligature Strangulation” for the On the Edge publication. (Id. at 14). She has also taught classes and previously testified in criminal cases on the topic of strangulation. (Id. at 14-15). Overall, Ms. Downing has nearly 40 years' experience as a nurse. (Id. at 11-12). In short, Ms. Downing's knowledge and experience related to strangulation and its effects are extensive.

         City Defendants nevertheless argue that the Court should not permit Ms. Downing to testify about the potential effects of Officer Camarillo's carotid hold on Decedent's death, given that Ms. Downing is not an emergency room doctor, forensic medical examiner, forensic pathologist, toxicologist, biomechanical or human factors expert, or police officer. (Doc. 94 at 4-5). City Defendants also compare the expertise of their expert, a board-certified emergency department physician, to that of Ms. Downing, noting that Ms. Downing “has not conducted any independent research regarding asphyxiation or Excited Delirium (while Defendants' expert, Dr. Vilke, has).” (Id. at 4). However, while these differing areas of expertise are perhaps germane to the weight and allowed scope of Ms. Downing's testimony, they do not bar admissibility. See Bergen v. F/V St. Patrick, 816 F.2d 1345, 1352 n.5 (9th Cir. 1987) (“The weakness in the underpinnings of [expert] opinions may be developed upon cross-examination and such weakness goes to the weight and credibility of the testimony.” (alteration in original) (quoting Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th Cir. 1976))); see also Kannankeril v. Terminix Int'l, 128 F.3d 802, 809 (3d Cir. 1997) (“If the expert meets liberal minimum qualifications, then the level of the expert's expertise goes to credibility and weight, not admissibility.”). Ms. Downing has the expert qualifications to provide testimony regarding her area of expertise-strangulation.

         2. Relevance of Ms. Downing's Testimony

         Once qualified, an expert may testify within her area of expertise so long as the expert's testimony “is both relevant and reliable.” Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007); see also Daubert I, 509 U.S. at 589. Expert testimony is relevant if it assists the trier of fact in understanding evidence or in determining a fact in issue. Daubert I, 509 U.S. at 591. Thus, the party proffering such evidence must demonstrate a valid scientific connection, or “fit, ” between the evidence and an issue in the case. Id. A court therefore examines whether the proffered expert testimony is “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Id. (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). Expert knowledge also assists the trier of fact when it provides knowledge beyond the trier of fact's common knowledge. Id.; United States v. Finley, 301 F.3d 1000, 1008 (9th Cir. 2002).

         City Defendants argue that the Court should exclude Ms. Downing's testimony because it is unhelpful to a jury for two reasons. First, City Defendants argue that Ms. Downing's “expert opinions are unhelpful as they are not expressed to any quantifiable level of medical probability.” (Doc. 94 at 11). Second, and relatedly, City Defendants argue that Ms. Downing should have performed a differential diagnosis.[7] City Defendants assert that because Ms. Downing cannot rule out (or rule in) methamphetamine abuse, a cardiac event, or excited delirium as potential causes of Decedent's death, her testimony is irrelevant. (Id. at 12-13).

         Ms. Downing's opinion states that she “find[s] the photographs and evidence provided . . . consistent with strangulation, based on the facts of the case provided, and on [her] experience, education and training.” (Doc. 94-1 at 8). Ms. Downing never conclusively links Decedent's injuries to strangulation but, rather, uses phrases like “[t]he thyroid cartilage fracture with associated hemorrhage . . . is most likely the result of the choke hold” and “[t]he subconjunctival hemorrhage is most likely the result of the choke hold.” (Id. at 8-9 (emphasis added)). While the Court recognizes that Ms. Downing does not postulate to a medical certainty, such certainty is not a requirement for admissibility. See, e.g., United States v. Rahm, 993 F.2d 1405, 1412 (9th Cir. 1993) (“Certainty is an unreasonable expectation in the realm of expert opinion. [An expert's] use of the conditional ‘could' in expressing her conclusion is neither unusual nor disqualifying as to her testimony. . . . Experts ordinarily deal in probabilities, in ‘coulds' and ‘mights.'” (citations omitted)); Stanley v. Novartis Pharms. Corp., 11 F.Supp.3d 987, 1001 (C.D. Cal. 2014) (“[T]o the extent Defendant argues that Dr. Sung did not adequately rule out additional factors, this is a credibility determination that goes to the weight . . . of his opinions. Defendant can cross-examine Dr. Sung regarding additional factors that he did not rule out during trial.”). To demand such certainty could render her testimony inadmissible as she does not purport to have expertise in methamphetamine abuse or other potential causes of Decedent's death, which is what City Defendants ultimately seek to accomplish.

         Thus, City Defendants argue that because Ms. Downing cannot rule out other causes of Decedent's death through a differential diagnosis, her testimony should be excluded. While “a reliable differential diagnosis passes muster under Daubert, ” Clausen, 339 F.3d at 1058, City Defendants cite to no case law indicating that Daubert requires a reliable differential diagnosis. While a differential diagnosis may muster more credibility, general causation testimony regarding a potential cause of death may still be helpful to a jury in certain cases-and, therefore, be admissible. As relevant here, Ms. Downing will opine that certain forms of strangulation are capable of causing the injuries suffered by Decedent. The Court finds Ms. Downing's testimony to be helpful and, thus, relevant.

         3. Reliability of Ms. Downing's Testimony

         Generally, to satisfy Rule 702's reliability requirement, “the party presenting the expert must show that the expert's findings are based on sound methodology.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995) (“Daubert II”). Factors for a trial court to consider in determining reliability include: (1) whether the theory, technique, or method used by the expert to form her opinion can or has been tested; (2) the known or potential rate of error in the expert's theory, technique, or method; (3) whether the theory, technique, or method has been subjected to peer review and publication; (4) whether there are standards controlling the theory, technique, or method's operation; and (5) the general acceptance of the theory, technique or method within the relevant community. Cooper, 510 F.3d at 942-43; United States v. Prime, 431 F.3d 1147, 1152 (9th Cir. 2005). In engaging in this analysis, the trial court should be mindful that:

The inquiry envisioned by Rule 702 is . . . a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability - of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.

Daubert I, 509 U.S. at 594-95 (footnotes omitted).

         It is also well-settled that the five Daubert factors-testing, peer review, error rates, standards, and acceptability in the relevant scientific community-are merely illustrative, not exhaustive, and may be inapplicable in a given case. Daubert II, 43 F.3d at 1317. For instance, the Ninth Circuit Court of Appeals (“Ninth Circuit”) has advised that a trial court may also question whether the expert is proposing to testify about matters “growing naturally and directly out of the research they have conducted independent of the litigation, or whether they have developed their opinions expressly for the purposes of testifying” as another significant inquiry weighing on reliability. Id. “That the testimony proffered by an expert is based directly on legitimate, preexisting research unrelated to the litigation provides the most persuasive basis for concluding that the opinions he expresses were ‘derived by the scientific method.'” Id.

         Ms. Downing examined bystander videos from the incident, the medical examiner's report, and autopsy photographs of Decedent, among other materials, in forming her opinion. (Doc. 94-1 at 5, 10). City Defendants attack the reliability of Ms. Downing's testimony because she failed to review the police report, fire department records, hospital records, police training outlines, PPD's Use of Force Policy, and audio interviews of the officers involved in the incident. (Doc. 94 at 9). City Defendants claim that as a result of Ms. Downing's failure to review these records, Ms. Downing reached a faulty opinion-or at least an opinion contrary to that reached by City Defendants' expert.

         Ms. Downing's opinions and inferences were based on her review of the medical examiner's report, autopsy photographs, and bystander videos, as well as her knowledge, experience, training, and education. The primary thrust of City Defendants' argument is that Ms. Downing's testimony must be excluded because she did not consider materials that City Defendants' expert did consider. These arguments go to weight, not the admissibility, of Ms. Downing's testimony, and a jury can decide how much weight it deserves. See, e.g., Nomo Agroindustrial Sa De Cv v. Enza Zaden N. Am., Inc., No. CV 05-351-TUC-FRZ, 2009 WL 211085, at *5 (D. Ariz. Jan. 29, 2009) (“The jury is entitled to hear expert testimony and decide whether to accept or reject it after considering whether predicate facts on which the expert relied were accurate.” (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239 (11th Cir. 2002))). At bottom, City Defendants' opposition to Ms. Downing's report is that they disagree with her conclusions. This is not a basis for exclusion under Daubert. See, e.g., Kennedy v. Collagen Corp., 161 F.3d 1226, 1230 (9th Cir. 1998) (“Judges in jury trials should not exclude expert testimony simply because they disagree with the conclusions of the expert.”).

         Because Ms. Downing qualifies as an expert and her opinion is both reliable and relevant, her testimony regarding the potential effects of strangulation is admissible.

         C. City Defendants' Rule 403 Concerns

         Given the admissibility of Ms. Downing's testimony, City Defendants also argue that, under Federal Rule of Evidence 403 (“Rule 403”), the Court should preclude her from applying “inflammatory” characterizations to the neck hold used by Officer Camarillo on Decedent. (Doc. 94 at 6-8). Specifically, City Defendants object to the use of the terms “choke hold” and “strangled” when describing a carotid hold. (Id.). To the extent City Defendants are asking the Court to rule on a motion in limine, the Court finds that this is not the appropriate time to make such a ruling. Unlike objections to foundation and hearsay, objections that evidence is not relevant or is misleading are superfluous at the summary judgment stage. These objections are unnecessary at the summary judgment stage because Rule 403 provides for the exclusion of evidence that may “mislead the jury, ” not the Court. See Fed. R. Evid. 403 (emphasis added); see also Bafford v. Travelers Cas. Ins. Co. of Am., No. Civ. S-11-2474 LKK/JFM, 2012 WL 5465851, at *8 (E.D. Cal. Nov. 8, 2012).


         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must support that assertion by “citing to particular parts of materials in the record, ” including depositions, affidavits, interrogatory answers or other materials, or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. 56(c)(1). Thus, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to establish the existence of material fact. Id. A material fact is any factual issue that might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248. The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

         At the summary judgment stage, the trial judge's function is to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Liberty Lobby, Inc., 477 U.S. at 249-50. If the evidence is merely colorable or is not significantly probative, the judge may grant summary judgment. Id.

         A. Admissibility of Evidence at the Summary Judgment Stage

         The Ninth Circuit applies a double standard to the admissibility requirement for evidence at the summary judgment stage. See 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2738 (3d ed. 1998).

         With respect to non-movant's evidence offered in opposition to a motion for summary judgment, the Ninth Circuit has stated that the proper inquiry is not the admissibility of the evidence's form but rather whether the contents of the evidence are admissible. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”); Celotex Corp., 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.” (emphasis added)). Accordingly, the Ninth Circuit has held, albeit sometimes implicitly, that a non-movant's hearsay evidence may establish a genuine issue of material fact precluding a grant of summary judgment. See Fraser, 342 F.3d at 1036-37; Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). Thus, “[m]aterial in a form not admissible in evidence may be used to avoid, but not to obtain summary judgment, except where an opponent bearing a burden of proof has failed to satisfy it when challenged after completion of relevant discovery.” Tetra Techs., Inc. v. Harter, 823 F.Supp. 1116, 1120 (S.D.N.Y. 1993).

         The Ninth Circuit has required, however, that evidence offered in support of a motion for summary judgment be admissible both in form and in content. See Canada v. Blains Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987); Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976). Accordingly, unauthenticated documents cannot be considered in ruling on a motion for summary judgment because authentication is a condition precedent to admissibility. Orr v. Bank of Am., 285 F.3d 764, 773; see also Canada, 831 F.2d at 925 (“[D]ocuments which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment.”). A document authenticated through personal knowledge must be supported with an affidavit “[setting] out facts that would be admissible in evidence and show[ing] that the affiant or declarant is competent to testify on the matters stated.”[8] Fed.R.Civ.P. 56(c)(4).

         Similarly, evidence containing hearsay statements is admissible only if offered in opposition to the motion. “Because [v]erdicts cannot rest on inadmissible evidence and a grant of summary judgment is a determination on the merits of the case, it follows that the moving party's affidavits must be free from hearsay.” Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1121 (E.D. Cal. 2006) (quoting Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000)).

         Defendant Camarillo motions to strike Plaintiffs' Exhibits C (“Luebkin Video”), D (“Hessner PSB Audio Interview”), G (“Segundo Video”), I (“Segundo Video Still Photographs”), O (“Additional Luebkin Video”), and P (“Camarillo Interview-Audio”) from the Court's Summary Judgment Record because Plaintiffs failed to authenticate all of these exhibits. Defendant Camarillo, however, misreads Orr v. Bank of America to hold that the Court may not consider unauthenticated documents to support an argument to overcome summary judgment. (Doc. 133 at 15). Although Orr held that a non-movant's exhibits were inadmissible for purposes of opposing a motion for summary judgment, 285 F.3d at 773, the Ninth Circuit later clarified that it is the admissibility of the contents of evidence-not its form-that determines whether evidence is admissible for purposes of avoiding summary judgment, Fraser, 342 F.3d at 1036-37. The fact that Plaintiffs' exhibits are unauthenticated does not bar their consideration for the limited purpose of opposing Defendants' Motions for Summary Judgment.

         Nevertheless, the Court need not rule on the admissibility of each of Plaintiffs' exhibits at the summary judgment stage because the Court has only relied on Plaintiffs' Exhibit G, which City Defendants' have already submitted into evidence as Exhibit 8. (See Doc. 107-1). As a result, Defendant Camarillo's arguments are moot.

         City Defendants believe Ms. Downing's expert report is inadmissible at the summary judgment stage because “Plaintiffs did not submit an affidavit of [Ms.] Downing as it relates to the content of the report” and, thus, the report is hearsay. (Doc. 132 at 5). Although “[c]ourts in this circuit have routinely held that unsworn expert reports are inadmissible, ” Harris v. Extendicare Homes, Inc., 829 F.Supp.2d 1023, 1027 (W.D. Wash. 2011), Ms. Downing has submitted a separate affidavit indicating the statements contained in her report were made under the penalty of perjury, (see Doc. 117-10 at 6). Thus, the Court is satisfied that Plaintiffs' subsequently filed sworn statements of Ms. Downing adequately remedied the procedural deficiencies of the original filing. See Volterra Semiconductor Corp. v. Primarion, Inc., 796 F.Supp.2d 1025, 1038-39 (N.D. Cal. 2011) (“‘[S]ubsequent verification or reaffirmation of an unsworn expert's report, either by affidavit or deposition, allows the court to consider the unsworn expert's report on a motion for summary judgment.'” (quoting Maytag Corp. v. Electrolux Home Prods., Inc., 448 F.Supp.2d 1034, 1064 (N.D. Iowa 2006))); see also Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1261 (9th Cir. 1993) (“When a party opposing summary judgment fails to comply with the formalities of Rule 56, a court may choose to be somewhat lenient in the exercise of its discretion to deal with the deficiency.” (citations omitted)).

         B. ...

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