Landeros v. Schafer

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JENNIFER LANDEROS, individually No. 2:17-cv-02598 WBS CKD and as successor in interest to 13 DANIEL LANDEROS, Deceased; DEJA LANDEROS, individually and as 14 successor in interest to DANIEL MEMORANDUM AND ORDER RE: LANDEROS, Deceased; B.M.L., MOTION FOR NEW TRIAL 15 individually and as successor in interest to DANIEL LANDEROS, 16 Deceased, by and through JENNIFER LANDEROS, as Guardian 17 ad Litem; J.J.L., individually and as successor in interest to 18 DANIEL LANDEROS, Deceased, by and through JENNIFER LANDEROS, 19 as Guardian ad Litem; D.F.L., individually and as successor in 20 interest to DANIEL LANDEROS, Deceased, by and through 21 JENNIFER LANDEROS, as Guardian ad Litem; and T.D.L., 22 individually and as successor in interest to DANIEL LANDEROS, 23 Deceased, by and through JENNIFER LANDEROS, as Guardian 24 ad Litem, 25 Plaintiffs, 26 v. 27 SAMUEL SCHAFER; STEVEN HOLSTAD; JUSTIN PARKER; PATRICK SCOTT; 28 JEREMY BANKS; and CITY OF ELK 1 GROVE, 2 Defendants. 3 4 ----oo0oo---- 5 Plaintiffs have moved for a new trial under Federal 6 Rule of Civil Procedure 59(a). (Docket No. 130.) The court held 7 an evidentiary hearing on the motion on October 31, 2022. 8 Pursuant to Rule 59(a)(1)(A), a “court may, on motion, 9 grant a new trial . . . after a jury trial, for any reason for 10 which a new trial has heretofore been granted in an action at law 11 in federal court.” “[E]ven if substantial evidence supports the 12 jury’s verdict, a trial court may grant a new trial if the 13 verdict is contrary to the clear weight of the evidence, or is 14 based upon evidence which is false, or to prevent, in the sound 15 discretion of the trial court, a miscarriage of justice.” Silver 16 Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 17 819 (9th Cir. 2001) (citation and internal punctuation omitted). 18 Grounds for a new trial include newly discovered 19 evidence and discovery misconduct. Jones v. Aero/Chem Corp., 921 20 F.2d 875, 878-79 (9th Cir. 1990). A party seeking a new trial 21 on the basis of newly discovered evidence must show the evidence 22 “(1) existed at the time of trial, (2) could not have been 23 discovered through due diligence, and (3) was of such magnitude 24 that the production of it earlier would have been likely to 25 change the disposition of the case.” Id. at 878 (citation and 26 internal punctuation omitted). A party seeking a new trial 27 because of misconduct must show either (1) the verdict was 28 obtained through fraud, misrepresentation, or other misconduct, 1 by clear and convincing evidence; or (2) the conduct complained 2 of prevented the losing party from fully and fairly presenting 3 his case or defense. Id. at 878-79 (citation omitted). 4 “[I]n considering a Rule 59 motion for new trial, [the 5 court] is not required to view the trial evidence in the light 6 most favorable to the verdict. Instead, the district court can 7 weigh the evidence and assess the credibility of the witnesses.” 8 Experience Hendrix L.L.C. v. Hendrixlicensing.com Ltd., 762 F.3d 9 829, 842 (9th Cir. 2014). The Ninth Circuit has emphasized that, 10 under Rule 59, the district court has “the duty to weigh the 11 evidence as the court saw it, and to set aside the verdict of the 12 jury, even though supported by substantial evidence, where, in 13 the court’s conscientious opinion, the verdict is contrary to the 14 clear weight of the evidence.” Molski v. M.J. Cable, Inc., 481 15 F.3d 724, 729 (9th Cir. 2007) (citation and internal punctuation 16 omitted). 17 Plaintiffs move for a new trial under Rule 59(a)(1) on 18 the basis of false evidence, newly discovered evidence, and 19 discovery misconduct. Specifically, plaintiffs claim that a new 20 trial is required because (1) defendants did not disclose Dr. 21 Jason Tovar as a retained expert witness; (2) defense counsel 22 implied and/or told the court and jury that Dr. Tovar was an 23 independent witness; and (3) defense counsel told the jury that 24 he and Dr. Tovar had never met, even though defendants paid Dr. 25 Tovar $4,000 for witness fees, defense counsel talked with Dr. 26 Tovar over the phone, and defense counsel previously deposed Dr. 27 Tovar in another case. In essence, plaintiffs argue that in 28 2020, defense counsel hired Dr. Tovar as a retained expert and 1 intentionally withheld that information from the court, the 2 plaintiffs, and the jury. 3 At the October 31, 2022 hearing, the court heard 4 testimony from Dr. Tovar about his role in this case. 5 Specifically, Dr. Tovar is the Sacramento County forensic 6 pathologist who performed the autopsy on Daniel Landeros. He was 7 presented at trial as an impartial expert, not retained by either 8 side, who had nothing to gain personally by testifying in this 9 case. That was the impression that the court, and presumably the 10 jury, got at the time of trial. As it turns out, from his 11 testimony at the hearing on this motion, that was not entirely 12 accurate. When someone calls Dr. Tovar on the Sacramento County 13 telephone line to request his deposition or trial testimony about 14 an autopsy he has performed, he transfers the call or asks them 15 to call back on his personal line. He then offers to consult and 16 testify for a fee of $400 per hour. This fee, the court learned 17 at the hearing on this motion, does not go to the County. 18 Instead, Dr. Tovar does this work on his “personal time” as a 19 sort of “side hustle” and keeps the fee for himself. Dr. Tovar 20 testified that his superiors at the County were fully aware and 21 approved of this procedure. 22 The court finds that defense counsel Bruce Praet was 23 unaware of Dr. Tovar’s arrangement with the County until sometime 24 after the trial. Mr. Praet did not intend to employ Dr. Tovar as 25 a retained expert. Consistent with that intent, Mr. Praet 26 provided Dr. Tovar only with his autopsy report and copies of the 27 materials which had been provided to him at the time he performed 28 the autopsy and prepared his report, including body cam videos of 1 the decedent’s arrest. Mr. Praet was unaware that he could 2 secure Dr. Tovar’s testimony for trial by paying anything other 3 than the $400 hourly rate Dr. Tovar told him he charged. 4 Additionally, plaintiffs’ counsel would have quickly determined 5 Dr. Tovar’s hourly rate if they had contacted the County to 6 arrange for his deposition or trial testimony.1 7 I. Analysis 8 The court first determines that a new trial is not 9 required based on defendants’ failure to disclose Dr. Tovar as a 10 retained expert. The court agrees that failure to properly 11 disclose experts may be grounds for granting a new trial. See, 12 e.g., Aero/Chem, 921 F.2d at 878-79. However, defendants 13 disclosed Dr. Tovar as a non-retained expert, and as such they 14 were not required to disclose him as a retained expert. Federal 15 Rule of Civil Procedure 26(a)(2)(B) states that the disclosure of 16 experts “must be accompanied by a written report--prepared and 17 signed by the witness--if the witness is one retained or 18 specially employed to provide expert testimony in the case.” In 19 contrast, non-retained experts such as treating physicians who 20 testify only as to their own observations and conclusions formed 21 during treatment are not required to provide expert reports and 22 need only be disclosed as expert “percipient” witnesses. See, 23 e.g., Goodman v. Staples The Office Superstore, LLC, 644 F.3d 24 817, 824-25 (9th Cir. 2011) (treating physicians are generally 25 not subject to retained expert requirements of Rule 26(a)(2)(B) 26 1 Notably, plaintiff’s own expert disclosures, which 27 listed Dr. Tovar as a percipient expert witness, noted that “[i]t is believed the County of Sacramento charges $315 per hour for 28 Dr. Tovar’s testimony.” (Opp’n Ex. 4 at 3 (Docket No. 134-4).) 1 because they are percipient witnesses of the treatment they 2 rendered, but are subject to these requirements when they offer 3 opinions beyond the scope of treatment rendered). 4 As discussed above, Dr. Tovar performed the autopsy in 5 this case, wrote the autopsy report, and was called to discuss 6 his own observations and opinions developed during the autopsy 7 and drafting of the report, much like a treating physician would 8 testify of his treatment of a patient. Dr. Tovar then testified 9 consistent with his report. The court recognizes that defense 10 counsel and Dr. Tovar had limited telephone conversations prior 11 to trial and defendants paid Dr. Tovar his customary witness fee 12 after trial. However, plaintiffs have provided no authority, and 13 the court is unaware of any, holding that such limited prior 14 conversations and payment of witness fees after trial transforms 15 a percipient expert witness into a retained expert subject to 16 Rule 26(a)(2)(B). Indeed, it cannot be disputed that non- 17 retained expert witnesses should be paid a reasonable fee by the 18 party taking a deposition.2 See Fed. R. Civ. P. 26(b)(4)(E)(i) 19 (party seeking discovery must pay expert a reasonable fee for 20 time spent in responding to discovery); Axelson v. Hartford Ins. 21

22 2 Plaintiffs rely on, among other cases, In re: DePuy Orthopaedics, Inc., Pinnacle Hip Implant Product Liability 23 Litigation, 888 F.3d 753 (5th Cir. 2018), to argue that Dr. Tovar should have been disclosed as a retained expert, though the facts 24 of that case are so egregious that the case is of little help to them. In DePuy, plaintiffs’ counsel donated $10,000 to one 25 expert’s alma mater five weeks before trial, and after trial, paid that expert $35,000 and another expert $30,000 for their 26 “pro bono” testimony, but plaintiff’s counsel specifically 27 represented to the court and the jury multiple times that these experts were not retained and were not paid for their time. Id. 28 at 788-92. 1 Co. of the Midw., No. 2:11-cv-01827-RCJ-GWF, 2013 WL 1261757, at 2 *2-3 (D. Nev. Mar. 26, 2013) (treating physicians are entitled to 3 a reasonable expert’s fee for time spent in depositions). 4 Further, while defense counsel agreed in 2020 to pay 5 Dr. Tovar his normal witness fee for any testimony he provided, 6 such “agreement” was simply an acknowledgement of Dr. Tovar’s 7 customary fee, and no payment was made until after his testimony 8 in 2022. Defense counsel also reiterated to Dr. Tovar before 9 trial that he should not review the retained expert reports in 10 this case and should only rely on his own observations and 11 findings. Dr. Tovar then in fact testified as to those 12 observations and findings. Under these circumstances, defendants 13 properly disclosed Dr. Tovar as a non-retained percipient expert 14 witness. Accordingly, the failure to disclose Dr. Tovar as a 15 retained expert witness does not warrant a new trial. 16 Plaintiffs next contend that a new trial is warranted 17 because defense counsel told the court and jury that Dr. Tovar 18 was an independent witness. Dr. Tovar does apparently charge 19 $400 to litigants who request his testimony. Thus, if plaintiffs 20 had called him at trial (which was a possibility, because Dr. 21 Tovar was listed on plaintiffs’ witness list), they presumably 22 would have been subject to the same fee and would have made calls 23 similar to those between defense counsel and Dr. Tovar to arrange 24 for his testimony.3 The court has also already discussed how Dr.

25 3 Plaintiffs also insinuate that defense counsel misled the court and jury about Dr. Tovar’s trial subpoena. While it 26 seems likely that Dr. Tovar would have appeared without the 27 necessity of a subpoena, the court notes (1) both the court and plaintiffs’ counsel recommended that defense counsel subpoena him 28 to ensure his appearance, given possible scheduling issues and 1 Tovar testified to his own observations and findings formed 2 during the autopsy and drafting of his autopsy report, and did 3 not review any materials beyond what he had in 2016. Under these 4 circumstances, defense counsel’s representations of Dr. Tovar as 5 independent were not false and did not result in a miscarriage of 6 justice. 7 Similarly, defense counsel’s statement to the jury that 8 he had never met Dr. Tovar was not false and did not result in a 9 miscarriage of justice. First, the court finds credible Mr. 10 Praet’s representation that he did not remember deposing Dr. 11 Tovar in 2018, given the passage of time. Second, there is 12 clearly a difference between meeting someone in person and 13 talking on the telephone, and Mr. Praet believed they were 14 meeting in person for the first time. While plaintiffs’ counsel 15 ascribes nefarious purposes to Mr. Praet’s statements and these 16 actions, such as bolstering his witness at the expense of 17 plaintiffs’ witnesses, the court finds none. 18 In order to grant a new trial, the court need not find 19 that any omission or misrepresentation of evidence is 20 intentional, or that the result of trial would be different if 21 the evidence had not been withheld or there had been no discovery 22 misconduct. Aero/Chem, 921 F.2d at 879; Schreiber Foods, Inc. v. 23 Beatrice Cheese, Inc., 402 F.3d 1198, 1206 (Fed. Cir. 2005). 24 plaintiffs’ counsel’s representation that they might not call him 25 as a witness (see Docket No. 130-2 at 22); and (2) defense counsel did in fact issue a trial subpoena to Dr. Tovar. 26 Plaintiffs’ counsel speculated at the hearing on this motion that 27 Mr. Praet manufactured a scheduling conflict in order to call his witness during plaintiffs’ case in chief and disrupt plaintiffs’ 28 presentation. There is no evidence to support this speculation. 1 Nevertheless, the court has no trouble determining that the 2 verdict in this case was not against the clear weight of the 3 evidence, even taking away Dr. Tovar’s testimony. While the case 4 was well litigated on both sides, there was ample evidence 5 supporting the jury’s determination that no excessive force was 6 used, particularly the body cam video of the decedent’s arrest. 7 Given the circumstances surrounding the incident, the jury 8 reasonably determined that the officers used an appropriate 9 amount of force to restraint the decedent. 10 The court also cannot help but note that Dr. Tovar’s 11 testimony was limited to addressing his autopsy and the ultimate 12 cause of the decedent’s death. However, the jury did not reach 13 the issue of causation in its verdict, given its determination 14 that no excessive force was used and that defendants were not 15 negligent. (Verdict Form (Docket No. 114).) 4 Plaintiffs’ 16 counsel opined at oral argument that the jury’s determination on 17 excessive force may have been influenced by Dr. Tovar’s testimony 18 that the cause of death was a heart attack and methamphetamine 19 overdose. While that may have been conceivably possible, the 20 court finds it highly unlikely given the clarity of the court’s 21 instructions and the verdict form. 22 4 The verdict form, agreed upon by the parties, 23 instructed the jury to answer, among other things, (1) whether defendants used excessive force, (2) whether any excessive force 24 was a cause of injury to the decedent, (3) whether defendants acted negligently, and (4) whether any negligence was a 25 substantial factor in causing the decedent’s death. (Docket No. 114). The verdict form instructed the jury not to answer whether 26 defendants’ excessive force caused the decedent’s harm if it 27 found that defendants did not use excessive force, and not to answer whether defendants’ negligence was a substantial factor in 28 the decedent’s death if it found defendants were not negligent. IE IIE IE IERIE ROIS IRIN OI IR OE OS OSE ED ee

1 The court has serious questions about the propriety of 2 Dr. Tovar’s ability to personally charge $400 an hour for his 3 trial testimony relating to his work as a public servant. 4 However, on the motion for new trial, at issue is whether defense 5 counsel’s conduct during discovery or trial intentionally or 6 inadvertently resulted in the presentation of materially false or 7 misleading evidence or a miscarriage of justice. Plaintiffs have 8 not shown that this to be the case. 9 IT IS THEREFORE ORDERED that plaintiff’s Motion for New 10 Trial (Docket No. 130) be, and the same hereby is, DENIED. 11 Dated: November 4, 2022 ttle “ ak “a / iE 12 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10