United States District Court, D. Arizona
A. Teilborg, Senior United States District Judge.
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.
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 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).
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).
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).
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
(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. (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).
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. (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. (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).
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).
CITY DEFENDANTS' MOTION TO EXCLUDE
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”).
Timeliness of City Defendants' Motion to Exclude
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
Requirements for Expert Testimony
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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).
Ms. Downing's Qualifications as an Expert
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
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,
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.
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
Relevance of Ms. Downing's Testimony
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).
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. 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).
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.
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,
Reliability of Ms. Downing's Testimony
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).
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
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.
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.”).
Ms. Downing qualifies as an expert and her opinion is both
reliable and relevant, her testimony regarding the potential
effects of strangulation is admissible.
City Defendants' Rule 403 Concerns
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).
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
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).
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).
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
Admissibility of Evidence at the Summary Judgment
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).
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).
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.” Fed.R.Civ.P. 56(c)(4).
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.
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
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.
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)).