Regal v. County of Santa Clara

Opinion

DEVIN REGAL, et al., Case No. 5:22-cv-04321-BLF

Plaintiffs, ORDER ON MOTIONS IN LIMINE v.

COUNTY OF SANTA CLARA, [Re: Dkt. Nos. 146, 147, 148, 149, 150, 151, 152, 153, 154, 155] Defendant.

This is a civil rights action under Section 1983 brought by Devin Regal and his siblings E.R. and C.R., by and through their guardian ad litem Michael Leitchman (collectively, “Plaintiffs”). Plaintiffs bring claims individually and as successors in interest to their father, Frederick Inea Regal (“Regal”), who died by suicide while held in custody at a County of Santa Clara (“Defendant” or “the County”) jail facility. The Court held a Final Pretrial Conference in this case on May 23, 2025, during which the Court issued oral rulings on the Parties’ motions in limine. See Motions, Dkt. Nos. 146, 147, 148, 149, 150, 151, 152, 153, 154, 155. The Court’s rulings on the motions in limine are summarized as follows. A. Plaintiffs’ Motion in Limine No. 1 to Admit Evidence of Subsequent Remedial Suicide Prevention Measures to Prove Feasibility of Such Measures In Plaintiffs’ first motion in limine, they request an order permitting admission of “evidence of subsequent remedial suicide prevention measures defendant County of Santa Clara implemented after July 29, 2020 . . . to prove the feasibility of such measures.” Dkt. No. 146 (“Plfs.’ MIL No. 1”) at 1. Plaintiffs argue that, while Federal Rule of Evidence 407 does not permit introduction of evidence of subsequent remedial measures to prove negligence, culpable “feasibility of precautionary measures.” Id. at 1–2. In this case, Plaintiffs wish to present evidence at least of “suicide-resistant cells in the Elmwood Men’s Facility, relaxed admission criteria for admission to Unit 8A . . . and the use of safety blankets in lieu of bedsheets.” Id. at 2. In opposition, Defendant argues that Plaintiffs have failed to adequately identify the evidence they wish to admit, and that, in any event, it should be excluded as irrelevant and unduly prejudicial. Dkt. No. 161 (“Opp. to Plfs.’ MIL No. 1”). As a preliminary matter, Defendant argues that “Plaintiffs incorrectly frame the County’s construction of suicide-resistant cells at Elmwood as a subsequent remedial measure,” since “it was building suicide-resistant cells across its jail system before, during, and after Regal’s time in custody.” Id. at 2. Accordingly, Defendant “reserves the right to object” to evidence related to that construction effort, but states that it “does not run afoul of Rule 407[].” Id. at 2–3. As to the evidence related to changed 8A admission criteria and the County’s Ferguson gown policy, though, the County argues that this evidence does not fall into the Rule 407 feasibility carve-out. Id. at 3. Regarding 8A, Plaintiffs elicited deposition testimony that at some point after Regal’s death, 8A was changed from a Lanterman-Petris-Short Act (“LPS”) facility for housing individuals on “5150 holds” to a non-LPS facility, which eliminated the attendant LPS admission criteria for individuals housed there. Id. at 3–4. But because Plaintiffs did not conduct further discovery on this issue, Defendant argues, Plaintiffs do not know what the new criteria were, whether Regal would have been admitted to 8A under them, and whether they would have made his death by suicide less likely to occur. Id. at 4. Regarding the County’s use of Ferguson blankets, the County says that it “is unaware of any discovery on this subject, pertaining to this timeframe, and would seek an offer of proof.” Id. Moreover, Defendant argues that “[a]ny probative value of evidence of suicide-prevention measures implemented by the County after Regal’s incarceration” should be excluded under Rule 403, because it would encourage the jurors to measure the adequacy of the County’s performance “against the wisdom of 20/20 hindsight” and might confuse or mislead them. Id. at 5. Under Federal Rule of Evidence 407, “[w]hen measures are taken that would have made an to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction.” Fed. R. Evid. 407. However, “the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.” Id. Regardless of a piece of evidence’s admissibility under Rule 407, under Federal Rule of Evidence 403, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. The Court understands Defendant’s opposition brief to concede that evidence of the County’s construction of suicide-resistant cells is generally relevant and admissible. And the County also will introduce evidence of its jail construction efforts before and after Regal’s death. See Opp. to Plfs.’ MIL No. 1 at 2. Accordingly, the Court GRANTS Plaintiffs’ motion insofar as it pertains to the construction of suicide-resistant cells WITHOUT PREJUDICE to Defendant asserting a Rule 403 or other appropriate objection at trial. However, the Court must defer its ruling regarding the Unit 8A admission criteria and the Ferguson blanket policy until those issues arise at trial. Plaintiffs were unable to clearly identify the evidence they endeavor to admit under this motion at the Final Pretrial Conference, because it pertains to new testimony that they hope to elicit for the first time at trial. Specifically, Plaintiffs’ counsel explained that Plaintiffs intend to question certain witnesses about whether the County changed its policies related to Unit 8A admission and Ferguson blankets after the date on which Regal died. Counsel was uncertain of how the witnesses would respond to these questions, but— based on vague deposition testimony—expects the line of questioning to reveal that those policies did change after Regal’s death. Without knowing whether any such subsequent policy changes would have had an impact on Regal’s housing placement or the preventative measures adopted to abate his risk of suicide, the Court is unable to rule on whether the evidence is admissible to show feasibility. As a preliminary matter, Plaintiffs will need to lay a proper foundation for their belief that the witnesses able to consider whether the evidence is relevant, whether it demonstrates feasibility, and whether it should be excluded under Rule 403. In short, once the evidence Plaintiffs aim to admit is made more concrete at trial, the County may object and seek a ruling from the Court. Until then, the Court DEFERS ruling on Plaintiffs’ first motion in limine insofar as it concerns Unit 8A admission criteria and the County’s Ferguson blanket policy. B. Plaintiffs’ Motion in Limine No. 2 to Exclude Video Recording of July 27, 2020 Conversation Between Decedent Frederick Regal and Plaintiff Eliana Regal (Bates No. PLTFS_000805) In their second motion in limine, Plaintiffs seek to exclude a video produced by Plaintiffs in discovery at Bates No. PLTFS_000805, which “depicts a telephone conversation between plaintiff Eliana Regal, aged 13 at the time, and her father, decedent Frederick Regal.”1 Dkt. No. 147 (“Plfs.’ MIL No. 2”) at 1. Plaintiffs argue that the video must be excluded under the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., because neither Eliana nor her father “consented to or even knew about [Eliana’s mother] having recorded their conversation.” Id. at 2. Moreover, Plaintiffs argue that Eliana’s mother could not have consented on Eliana’s behalf, because the Ninth Circuit does not recognize a parental vicarious consent doctrine under the Act. Id. Plaintiffs also argue that the video should be excluded under Rule 403, because the evidence is cumulative of the County’s ability to ask Eliana directly about her last conversation with her father and/or to read deposition transcript testimony to the contents of that conversation. Id. at 3–4. In opposition, the County argues that Plaintiffs waived their objection under the Federal Wiretap Act and that, regardless, the Federal Wiretap Act does not prohibit the use of the evidence. Dkt. No. 162 (“Opp. to Plfs.’ MIL No. 2”). On the first point, Defendant argues that Plaintiffs’ written objections in response to the Request for Production seeking this evidence “made no mention of Plaintiffs’ objection under the Wiretap Act,” meaning that the objection is waived. Id. at 1–2. On the second point, Defendant argues that Plaintiffs’ mother was a “party to the communication” that was being recorded, meaning that it is subject to an exception from the Federal Wiretap Act. Id. at 2 (citing Caro v. Weintraub, 618 F.3d 94, 96 (2d Cir. 2010)). In addition, Defendant argues that vicarious consent is the rule under California law, and that Plaintiffs’ Ninth Circuit case to the contrary was based on Nevada law. Id. at 3. Finally, Defendant argues that the video is highly relevant to both Regal’s history of suicidality and his relationship to his family, and that presentation of the video is not cumulative of testimony from Eliana, because she does not clearly recall the contents of the conversation. Id. at 4–5. “The Federal Wiretap Act . . . prohibits the intentional interception, disclosure, or use of any oral communication without the consent of at least one party to the conversation.” Pyankovska v. Abid, 65 F.4th 1067, 1074 (9th Cir. 2023), cert. denied sub nom. Jones v. Pyankovska, 144 S. Ct. 354 (2023). “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . . if the disclosure of that information would be in violation of” the Act. 18 U.S.C. § 2515. Both Eliana and her mother submitted declarations in support of the motion attesting that the conversation between Eliana and her father was recorded without either participant’s knowledge or consent. Dkt. No. 147-1, Declaration of Rachel Regal in Support of Plaintiffs’ Motion in Limine No. 2 to Exclude July 27, 2020 Recorded Conversation Between Decedent Frederick Regal and Plaintiff Eliana Regal (“R.R. Decl.”) ¶ 4 (“I did not have permission from either Frederick Regal or Eliana Regal to record their communication. At the time of the conversation, neither Frederick nor Eliana was aware that I was recording.”); Dkt. No. 147-2, Declaration of Eliana Regal in Support of Plaintiffs’ Motion in Limine No. 2 to Exclude July 27, 2020 Recorded Conversation Between Decedent Frederick Regal and Plaintiff Eliana Regal (“E.R. Decl.”) ¶ 5 (“My mother, Rachel Regal, never asked me for permission to record my conversation with my father, and I was never aware that she had recorded it until after my father’s death.”). Thus, the Court concludes that the recording must be excluded unless any exception applies. No exception does. First, the Ninth Circuit has expressly held that “[t]he vicarious-consent doctrine is not the law of . . . this Circuit.” Pyankovska, 65 F.4th at 1075. As such, the recording cannot be admitted “consent to the recording” of the conversation on her daughter’s behalf. See id. To the extent that the County attempts to suggest that the Pyankovska decision was based upon Nevada law and that the outcome would differ for a recording made in California, the Court disagrees. The Court reads the opinion to say that neither Nevada law nor Ninth Circuit authority on the Federal Wiretap Act provided a basis for admitting the challenged recording in Pyankovska. The opinion does not suggest that the applicability of a vicarious consent exception to the Federal Wiretap Act would vary based on the underlying state’s own wiretap law. Second, the Court finds that this is not a case in which the person making the challenged recording “[was] a party to the communication.” 18 U.S.C. § 2511(2)(d); see Planned Parenthood Fed’n of Am., Inc. v. Newman, 51 F.4th 1125, 1135 (9th Cir. 2022) (noting that “a person may record a conversation in which he or she is a party unless the ‘communication is intercepted for the purpose of committing any criminal or tortious act’”). The County cites Caro v. Weintraub, 618 F.3d 94 (2d Cir. 2010), in support of its position that Rachel Regal gave consent to the recording as a “party” to Eliana and her father’s conversation. Specifically, the County argues that Rachel Regal spoke with Frederick both before and after the recording took place, and thus that it was “all one conversation to which Frederick, Rachel, and Eliana were [all] parties.” Opp. to Plfs.’ MIL No. 2 at 3. If that is the case, the County asserts that it does not matter that Eliana was unaware of the recording. See id. It is true that the relevant “party” in the Caro case recorded the conversation without the knowledge of other parties. Caro, 618 F.3d at 96. But he also “spoke up a few times”—a detail that the Second Circuit emphasized in its finding that he “[took] part in the conversation” and thus was a “party.” Id. at 97–98. Here, in contrast, deposition testimony from Rachel Regal reveals that Eliana overheard her mother’s conversation with her father and then “grabbed the phone . . . and ran off.” Dkt. No. 162-2 (“R.R. Dep. Tr.”) at 127:1–5. There is no assertion that Rachel Regal spoke up or otherwise took part in the conversation between Frederick Regal and their daughter once Eliana took the phone to her room. Instead, it appears that—unbeknownst to Eliana—Rachel followed Eliana to the doorway of her bedroom and surreptitiously recorded the distinguishes the present situation from that in Caro, and the Court finds that Eliana’s conversation with her father was a separate conversation to which Rachel Regal was not a party. Thus, the party-consent exception does not apply in this case and the recording must be excluded. Accordingly, the Court GRANTS Plaintiffs’ second motion in limine. C. Plaintiffs’ Motion in Limine No. 3 to Exclude Defense Life Care Planning Expert Witness Cloie Johnson In their third motion in limine, Plaintiffs move to exclude defense life care planning expert Cloie Johnson under Federal Rules of Evidence 401 and 403. Dkt. No. 148 (“Plfs.’ MIL No. 3”) at 1. Plaintiffs argue that Ms. Johnson’s “testimony pertains only to economic damages,” but Plaintiffs seek only noneconomic damages at trial. Id. Thus, Plaintiffs argue that Ms. Johnson’s testimony is “irrelevant because the amount of money future psychotherapy would cost . . . does not bear on whether or even how much Plaintiffs have suffered emotionally from the loss of their father.” Id. at 2. In addition, Plaintiffs argue that Ms. Johnson’s testimony should be excluded under Rule 403 because it might confuse the jury by suggesting “that all of Plaintiffs’ non- economic damages can be addressed with a small sum of economic damages for mental health therapy.” Id. at 3. This might permit Defendant to “artificially deflate” any noneconomic damages award “by using economic damages as a psychological anchor to weigh down the value of the damages Plaintiffs are actually claiming.” Id. at 4. In opposition, Defendant argues that Ms. Johnson’s “testimony is relevant because her opinions regarding the cost of Plaintiffs’ future mental health care [] will provide the jury with a helpful, reliable data point in determining the extent of Plaintiffs’ noneconomic damages.” Dkt. No. 163 (“Opp. to Plfs.’ MIL No. 3”) at 1. The County accepts that it is difficult to calculate emotional damages, and that the value of psychological treatment for Plaintiffs is not equivalent to the value of their noneconomic damages. Id. at 2. However, Defendant argues that the award of noneconomic damages must be based on something more exacting than speculation, and that Ms. Johnson’s life care planning testimony will provide a relevant “data point” that the jury can consider in valuing Plaintiffs’ damages. Id. at 2–3. Moreover, Defendant argues that Ms. relevant as the testimony that Plaintiffs seek to introduce from their neurologist expert, Dr. Swanson. Id. at 3–4. Finally, Defendant argues that Ms. Johnson’s testimony should not be excluded under Rule 403, because the County will not suggest that her calculations “cover the totality” of Plaintiffs’ damages or that Plaintiffs can only recover for specifically calculable economic damages. Id. at 4. Under Federal Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. Under Federal Rule of Evidence 403, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. The Court concludes that defense expert Ms. Johnson’s testimony is not relevant—and even if it was marginally relevant, that relevance would be substantially outweighed by the risk of confusing the issues or misleading the jury. As the defense acknowledges, “Plaintiffs in this action have made clear that they ‘do not seek any economic or special damages.’” Opp. to Plfs.’ MIL No. 3 at 1. And Ms. Johnson, understandably, “will not opine on the amount or purport to quantify Plaintiffs’ noneconomic damages,” id. at 2, since such damages “are oftentimes not readily amenable to computation.” See Creswell v. HCAL Corp., No. 04-cv-388, 2007 WL 628036, at *2 (S.D. Cal. Feb. 12, 2007). As a result, there is no throughline between (1) Ms. Johnson’s testimony about the cost of mental health treatment and (2) the value of Plaintiffs’ Loss of Familial Association claim, because there is no suggestion that such a cost is at all proportional to or otherwise indicative of the value of any noneconomic damages suffered. Similarly, the County cites no testimony or caselaw in support of the idea that the noneconomic damages sought may be mitigated or reduced through therapy. Further, the County has no evidence as to the effect of the proposed mental health counseling on reducing Plaintiffs’ damages. The County is correct that the jury should not assign the value of any noneconomic damages awarded randomly, but the proper considerations are those related to “the pecuniary family unit, the depth of their love and affection, and the character of the deceased as kind, attentive, and loving,” K.J.P. v. Cnty. of San Diego, 621 F. Supp. 3d 1097, 1155 (S.D. Cal. 2022)—not the dollar amount of mental health treatment. For this reason, the Court concludes that even if Ms. Johnson’s testimony was very marginally relevant as a “data point,” it should be excluded under Rule 403. Presenting the specific figures that Ms. Johnson prepared is very likely to confuse or mislead the jurors into believing that they are being asked to compensate Plaintiffs for the costs incurred in seeking mental health treatment, or—as Plaintiffs fear—that Plaintiffs “can only recover for economic damages that they can prove with specific figures.” Plfs.’ MIL No. 3 at 3. As discussed above, neither is true. Plaintiffs’ third motion in limine is GRANTED. D. Plaintiffs’ Motion in Limine No. 4 to Exclude Detailed Evidence Leading to Decedent’s 2016 and 2020 Arrests and Detentions In their fourth motion in limine, Plaintiffs ask the Court to exclude detailed evidence of Regal’s 2016 and 2020 arrests and jail detentions. See Dkt. No. 149 (“Plfs.’ MIL No. 4”) at 1. Plaintiffs anticipate that the County plans to introduce testimony, video, and documentary evidence pertaining to Regal’s arrests, and argue that such evidence should be excluded because it is irrelevant and unduly prejudicial. Id. at 2–4; see Fed. R. Evid. 401, 403. First, Plaintiffs argue that details of the 2016 arrest should be excluded because no County employee considered them in assessing or addressing Regal’s suicide risk. Id. at 3. Since these details were not known to the County employees who made decisions regarding Regal’s suicide risk and suicide prevention interventions, Plaintiffs assert that they are irrelevant to the County’s liability, which is based on the reasonableness of the preventative measures Regal received. Id. Regarding damages, Plaintiffs acknowledge that the details of the 2016 arrest may be relevant in assessing the impact of the incident on Plaintiffs’ relationship with Regal, but Plaintiffs argue that any evidence admitted should be limited to what is actually known by the Plaintiffs. Id. They argue that other sources of evidence would not be relevant and would waste time, confuse the issues, or persuade the jurors to dehumanize Regal. Id. at 3–4. As for the 2020 arrest, Plaintiffs argue that the specific details of that incident are irrelevant and unduly prejudicial because no later arrest were unknown to the Plaintiffs at the time their relationship with Regal ended by his suicide. Id. at 4. In response, the County argues that the details of the arrests are relevant to both liability and damages. See Dkt. No. 164 (“Opp. to Plfs.’ MIL No. 4”) at 1. The County states that the 2016 arrest is relevant to the County’s liability because it was considered during the Classification process to determine Regal’s housing arrangements, a central issue to Plaintiffs’ liability case. Id. at 1–2. Likewise, the County argues that the details of the 2020 arrest are relevant to liability, because (1) Regal’s mental-health condition and presentation depicted in video footage are relevant to the Plaintiffs’ claims regarding the County’s treatment of Regal, (2) arresting Officer Ortega’s interview with Regal in the footage informed his determination that Regal did not meet the criteria for an involuntary hold, and (3) Regal is calm and cooperative in the footage, discrediting Plaintiffs’ claims that more drastic measures were necessary. Id. at 2. Moreover, the County states that both arrests are directly relevant to Plaintiffs’ damages for loss of Regal’s care, comfort, and society, because drug usage, involvement with the criminal justice system, and character are all relevant considerations. Id. at 3. Finally, the County argues that evidence of the arrests should not be excluded under Rule 403, as the evidence has high probative value and any prejudicial effect is not unfair. Id. at 5. As a preliminary matter, the Parties agree that the impact of witnessing the events leading to the 2016 arrest is relevant to Plaintiffs’ claim to damages for loss of Regal’s care, comfort, and society. The Court finds, however, that such evidence is not limited to what was actually known by Plaintiffs. In awarding noneconomic damages for Loss of Familial Association, juries are to consider the warmth of feeling between family members, the closeness of the family unit, the depth of their love and affection, the character of the deceased as kind, attentive, and loving. K.J.P., 621 F. Supp. 3d at 1155; see also Krouse v. Graham, 19 Cal. 3d 59, 68 (1977). Juries may also consider “the life expectancy of the deceased,” considering “all relevant factors including the deceased’s health, lifestyle and occupation.” Allen v. Toledo, 109 Cal. App. 3d 415, 424 (1980). The Court concludes that the circumstances surrounding both the 2016 and 2020 arrests provide on his ability to maintain close consistent relationships with his children, as well as on his life expectancy. Thus, the Court finds that the details of both arrests are relevant to show the reality of Plaintiffs’ relationship with Regal for purposes of determining noneconomic damages. That said, the Court finds that such evidence should not be considered for liability. During arguments at the Final Pretrial Conference, Plaintiffs distinguished between Regal’s security risk classification and suicide risk classification. Details of Regal’s 2016 arrest were considered only for Regal’s security risk classification, which Plaintiffs do not challenge. Because those details were not considered in determining which suicide prevention measures to implement, the Court finds that details of this arrest are not relevant to the County’s liability. Details of the 2020 arrest are somewhat differently situated, since Regal’s behavior at the time of his arrest did inform his suicide risk assessment—but this relevance to liability is limited by how little knowledge the County employees who conducted Regal’s formal suicide risk assessments had of those details. Thus, the Court finds that details of the 2020 arrest should be excluded under Rule 403 as regards the County’s liability. For the foregoing reasons, the Court will admit this evidence for damages purposes only. The Court acknowledges that there is some risk of prejudice in discussing instances of Regal’s past interactions with law enforcement, including details about drug usage or domestic violence, but that risk does not substantially outweigh the very high probative value of the evidence to the damages issues. In addition, courts may consider the probable effectiveness of a limiting instruction in decreasing the risk of prejudice. See Fed. R. Evid. 403, advisory committee notes. In this case, the Court invites the Parties to prepare a limiting instruction stating that detailed evidence of Regal’s 2016 and 2020 arrests is only to be considered in determining noneconomic damages. The Parties shall request that the limiting instruction be read at the appropriate time(s) at trial. In sum, Plaintiffs’ motion to exclude detailed evidence of Regal’s 2016 and 2020 arrests is GRANTED insofar as the evidence is sought to be admitted on liability issues, but DENIED insofar as the evidence is sought to be admitted on damages issues. E. Plaintiffs’ Motion in Limine No. 5 to Exclude Evidence of Decedent’s Drug Test Results the County Received After the Hanging In Plaintiffs’ final motion in limine, they seek to exclude evidence of drug test results from Regal that were not received by the County until after his death. Dkt. No. 150 (“Plfs.’ MIL No. 5”) at 1. Plaintiffs argue that the County “seeks to admit into documentary evidence the drug test results it only received after Regal’s hanging and testimony from Philip Sobolesky, a clinical biochemist,” but that the County should not be permitted to do so because those test results are “completely irrelevant” to damages and the issues before the jury. Id. at 1–2. Although it is not disputed that Mr. Regal died due to hanging, Plaintiffs are concerned that the drug test information might confuse or mislead the jury regarding the cause of death. Id. at 2. In addition, Plaintiffs argue that this evidence might “unduly prejudice the jury against awarding noneconomic damages for Regal or his children.” Id. In opposition, the County argues that “Regal’s history of drug use, as well as his drug use on and just before July 28, 2020, is ‘of consequence to determining the action.’” Dkt. No. 165 (“Opp. to Plfs.’ MIL No. 5”) at 1. According to the County, this evidence bears upon Regal’s state of mind at the time of his arrest, which in turn bears upon the appropriateness of the County’s response to the risk of suicide he presented. Id. at 1–2. Defendant argues that it is also relevant to Plaintiffs’ family loss claim, because closeness, warmth, and life expectancy are all considerations for the valuation of such emotional damages. Id. at 2–3. Finally, Defendant argues that the drug test evidence should not be excluded under Rule 403, because the County will not suggest to the jury that Regal’s cause of death was drug related and because “[n]ot everything that hurts is unfairly prejudicial.” Id. at 4 (citing U.S. v. Akpa, 120 F. App’x 717, 720 (9th Cir. 2005)). As with the preceding motion in limine, the Court finds that the challenged evidence is not relevant to liability. Since the specific drug test results were not known to the County’s employees until after Regal had died, this information could not have informed their assessment as to which suicide prevention measures should be adopted to abate Regal’s risk of suicide. For clarity, however, the Court notes that this determination does not serve to exclude all evidence of “Regal’s history of drug use” or his “drug use on and just before July 28, 2020.” Opp. to Plfs.’ employees at the time of Regal’s arrest and intake, including his behavior and other evidence bearing upon those employees’ conclusions that he might be under the influence of drugs. However, the Court finds that the drug test results are relevant to Plaintiffs’ noneconomic damages. In that damages assessment, the jury can consider factors like “the closeness of the family unit,” K.J.P., 621 F. Supp. 3d at 1155, and the “life expectancy of the deceased,” Allen, 109 Cal. App. 3d at 424. These considerations are not limited by the information actually known to the plaintiff claiming the damage, so the jury may properly consider evidence of Regal’s drug use even though his children may not have known the specific drugs or quantities used by Regal at the time of his death. Moreover, the Court finds that the relevance of this evidence to Plaintiffs’ damages is not “substantially outweighed” by the risk of prejudice. Fed. R. Evid. 403. “[A]ll unfavorable evidence” about a party presents a risk of at least “some prejudice,” Akpa, 120 F. App’x at 720, so the critical question is whether the challenged evidence has “an undue tendency to suggest decision on an improper basis.” United States v. Haischer, 780 F.3d 1277, 1281 (9th Cir. 2015). Here it does not. Therefore, Plaintiffs’ fifth motion in limine is GRANTED insofar as the evidence is sought to be admitted on liability issues, but DENIED insofar as the evidence is sought to be admitted on damages issues. As with the preceding motion in limine, the Parties may prepare a limiting instruction and request that the Court read it at the appropriate time(s) at trial. A. Defendant’s Motion in Limine No. 1 to Exclude Certain Testimony of Lisa Boesky, Ph.D. In its first motion in limine, the County seeks to exclude testimony from Plaintiffs’ expert Lisa Boesky, Ph.D., “regarding (1) causation; (2) the standard of care and, relatedly, the suicide- prevention measures she believes the County should have implemented; and (3) the prevalence of suicide-resistant cells.” Dkt. No. 151 (“Deft.’s MIL No. 1”) at 1. Defendant first argues that Dr. Boesky’s causation-related opinions would confuse and mislead the jury because she addresses only “cause-in-fact—which is insufficient for Monell purposes” because causation in Monell claims also requires a showing of proximate causation. Id. at 2. Second, the County argues that established right to a certain level of suicide prevention care, and those opinions are likely to confuse or mislead the jury into believing that her testimony about the standard of care addresses the relevant constitutional standard. Id. at 3–4. Third, the County argues that Dr. Boesky’s testimony about the prevalence of suicide-resistant cells should be excluded because she was unable or unwilling to disclose a basis for her opinion on that topic. Id. at 4–5. In opposition, Plaintiffs argue that “Dr. Boesky’s testimony is relevant to the factual issue of causation” without stating a legal conclusion, and that it is also relevant to “the County’s actual and constructive knowledge of suicide risks and prevention standards in jails.” Dkt. No. 169 (“Opp. to Deft.’s MIL No. 1”) at 1. On the first point, Plaintiffs argue that Dr. Boesky need not testify to all of the elements of Monell causation in order to provide an opinion that is helpful to the jury. Id. at 1–2. On the second point, Plaintiffs argue that Dr. Boesky’s testimony on standards related to jail suicide prevention will help the jury to understand terminology and common suicide prevention practices. Id. at 2–4. Finally, Plaintiffs argue that Dr. Boesky’s opinions regarding the prevalence of suicide-resistant cells is “based on her experience because there is very limited actual data,” and that she is permitted to offer opinions based on facts that she observes through her industry experience. Id. at 4. First, the Court concludes that Dr. Boesky’s testimony regarding causation need not be excluded. True, her opinions do not seem to address both the causation-in-fact and the proximate causation requirements subsumed in the “moving force” element of the Monell test, see Gravelet- Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013)—but as Plaintiffs point out, it would be improper for Dr. Boesky to “give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law,” anyway. See Camenisch v. Umpqua Bank, 763 F. Supp. 3d 871, 881 (N.D. Cal. 2025) (quoting Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004)). Rather, Dr. Boesky may provide testimony based on her expertise regarding whether the County’s conduct was a substantial contributing factor to Regal’s suicide. That her opinion does not cover all of the elements of the claim is a matter that the County may take up in cross examination and closing argument. It is for the Parties’ attorneys to argue whether Plaintiffs have Cnty. of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (quoting Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). The County’s first motion in limine is DENIED insofar as it seeks to exclude Dr. Boesky’s causation opinions. Whether to permit Dr. Boesky’s testimony regarding the standard of care for jail suicide prevention is a closer question. Plaintiffs’ Monell claim requires more than a showing of “mere lack of due care.” Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (quoting Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)); see Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015) (“Deliberate indifference is ‘something more than mere negligence.’” (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994))). And no Supreme Court decision has established a right to a specific suicide prevention protocol or to “the proper implementation of adequate suicide prevention protocols.” Taylor v. Barkes, 575 U.S. 822, 826 (2015). Thus, Plaintiffs may not use Dr. Boesky’s testimony to suggest that the standard of care defines the constitutional parameters of Plaintiffs’ claim. However, the Court agrees with Plaintiffs that suicide prevention standards widely known in the industry are relevant to the issue of notice. See Germaine-McIver v. Cnty. of Orange, No. SACV1601201, 2018 WL 6258896, at *6 (C.D. Cal. Oct. 31, 2018) (“Deliberate indifference may be found ‘[w]here a § 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens.’” (quoting Castro, 833 F.3d at 1076)). In addition, Dr. Boesky’s expertise could be helpful to the jury’s understanding of the various suicide prevention protocols that the County had adopted at the time. Therefore, the County’s motion is DENIED to the extent that it seeks to exclude Dr. Boesky’s testimony regarding suicide-prevention standards and practices widely used in jails. This denial is without prejudice to the County objecting at trial if the questioning suggests that the jury may find the County liable for failing to meet those standards. Finally, the Court finds that it would be premature to prevent Dr. Boesky from testifying regarding the prevalence of suicide-resistant cells at this time. The Court’s “gatekeeping” function under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), “is to ensure the (1999). In relation to that function, “[a]n expert’s specialized knowledge and experience can serve as the requisite ‘facts or data’ on which they render an opinion.” Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1024 (9th Cir. 2022). Here, Plaintiffs assert that Dr. Boesky’s opinion “is based on her experience,” Opp. to Deft.’s MIL No. 1 at 4, and the County had the opportunity to question Dr. Boesky about the opinion during her deposition, see Dkt. No. 151-2 (“Boesky Dep. Tr.”) at 24:18–25:10, 27:14–28:5, 152:3–158:25. Based upon that questioning, the foundation for Dr. Boesky’s testimony about the prevalence of suicide-resistant cells appears weak, but the Court concludes that the County’s motion goes more to the weight or credibility that should be accorded the opinion and therefore declines to exclude it—for now. If, however, the questioning at trial reveals that Dr. Boesky’s opinion is unsupported or speculative, the County may request that the Court strike it. In sum, the County’s first motion in limine is DENIED. B. Defendant’s Motion in Limine No. 2 to Exclude Certain Evidence Relating to the Chavez Federal Consent Decree In its second motion in limine, the County seeks to exclude “any evidence [] about the County’s level of compliance with the [Chavez] consent decree,” and “any evidence showing and/or suggesting that Deputy County Counsel Aryn Paige Harris . . . is also lead counsel for the County in the Chavez matter. Dkt. No. 152 (“Deft.’s MIL No. 2”) at 1. The first part of the County’s motion refers to the consent decree entered in Chavez et al. v. County of Santa Clara, No. 15-cv-05277-RMI (N.D. Cal.), which requires the County to “fully implement all of the remedial measures set forth in the Remedial Plan.” Deft.’s MIL No. 2 at 1. The Remedial Plan is “designed to meet the minimum level of health care necessary to fulfill [the County’s] obligations under the Eighth and Fourteenth Amendments.” Id. (quoting Deft.’s MIL No. 2, Ex. 1 (“Consent Decree”) ¶ 10, and citing Deft.’s MIL No. 2, Ex. 2 (“Remedial Plan”)). The County acknowledges that the existence of the consent decree is “a relevant background fact,” and indeed, states that “[c]ertain facts relevant to the County’s defenses also require an understanding that the consent decree existed at the time of Regal’s death.” Id. at 2. However, the County argues that its right secured by the Constitution or laws of the United States” and often “go beyond” minimum constitutional requirements. Id. at 3 (quoting Garcia v. Stewart, No. 06-cv-6735, 2009 WL 688887, at *7 (N.D. Cal. Mar. 16, 2009), and Cagle v. Sutherland, 334 F.3d 980, 986–87 (11th Cir. 2003)). Regarding the second part of the County’s motion, the County argues that Attorney Harris’s name appears on certain exhibit documents related to Chavez, and that seeing her name there might confuse the jury. Id. at 4–5. In their opposition brief, Plaintiffs acknowledge that they “are not suing the County under the Consent Decree or for its lack of compliance with the Consent Decree.” Dkt. No. 170 (“Opp. to Deft.’s MIL No. 2”) at 1. However, they argue that the consent decree is relevant evidence in the case because it “put the County on notice of what suicide prevention interventions were necessary.” Id. at 2. In addition, Plaintiffs argue that it would be unfair to permit Defendant to “use the Consent Decree as a shield” while preventing Plaintiffs from using it as evidence of notice. Id. at 2–3. Plaintiffs do not oppose the redaction of Attorney Harris’s name from any Chavez documents that are used at trial. Id. at 4. For similar reasons as discussed with regard to the County’s first motion in limine, the Court concludes that the Chavez consent decree is relevant to the issue of notice. See Germaine- McIver, 2018 WL 6258896, at *6 (“Deliberate indifference may be found ‘[w]here a § 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens.’” (quoting Castro, 833 F.3d at 1076)). That said, the County is correct that “a remedial court decree does not provide a right secured by the Constitution or laws of the United States.” Garcia, 2009 WL 688887, at *7; Mitchell v. CDCR, No. 21-cv-01781, 2021 WL 5206135, at *3 (S.D. Cal. Nov. 9, 2021) (“Section 1983 provides a vehicle for plaintiffs to seek redress for injuries to their own constitutional rights, not to enforce prophylactic measures or technical requirements of state law, policy, remedial decree, or settlement agreements.” (quoting Rader v. County of Placer, No. 19-cv-1265, 2021 WL 3662411, at *5 (E.D. Cal. Aug. 18, 2021))). As with Dr. Boesky’s testimony regarding suicide prevention that the County’s noncompliance provides a basis for finding liability on Plaintiffs’ claims. Regarding the exclusion of evidence of Deputy County Counsel Aryn Paige Harris’s involvement in the Chavez action, the Parties are in agreement that Counsel Harris’s name may be redacted from any Chavez documents used at trial. See Opp. to Deft.’s MIL No. 2 at 4. Therefore, the Court GRANTS IN PART AND DENIES IN PART the County’s second motion in limine. The Court will exclude as irrelevant testimony and other evidence addressing the County’s level of compliance or noncompliance with the consent decree, and Counsel Harris’s name SHALL be redacted from any Chavez documents used at trial. However, the Court will allow evidence related to the Chavez consent decree for purposes of demonstrating notice, and either side is permitted to discuss the conditions and policies in effect at the time that Regal was held in County custody. To help address the risk of confusing or misleading the jury as to the proper use for this evidence, the Parties may prepare a limiting instruction and request that the Court read it at the appropriate time(s) during trial. C. Defendant’s Motion in Limine No. 3 to Exclude Testimony of Raymond A. Swanson, M.D. In its third motion in limine, the County moves to exclude the testimony of Plaintiffs’ expert Raymond A. Swanson, M.D., who is “a neurologist whom Plaintiffs disclosed to opine on the duration of Frederick Regal’s pre-death pain and suffering.” Dkt. No. 153 (“Deft.’s MIL No. 3”) at 2. Defendant argues that Dr. Swanson is not qualified to opine on Regal’s pre-death pain and suffering because he “lacks experience treating patients with the type of injury Regal had when he died,” and only conducted literature research on the topic of how long Regal might have suffered after he was retained by Plaintiffs in this case. Id. at 3. Moreover, Defendant contends that even if Dr. Swanson is qualified to testify on this subject, “his testimony would also be excludable because it is not ‘based on sufficient facts or data.’” Id. at 4 (quoting Elosu, 26 F.4th at 1023). In opposition, Plaintiffs argue that Dr. Swanson is a highly qualified expert with regard to “neuronal death and loss of consciousness” and that his testimony will assist the jury. Dkt. No. with regard to hanging-related deaths, and that Dr. Swanson has reviewed and considered the information available in relation to his own experiences to come to his conclusions. Id. at 2–3. Under Federal Rule of Evidence 702, “[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 the proponent demonstrates to the court that it is more likely than not that”: (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’s opinion reflects a reliable application of the principles and methods to the facts of the case. Fed. R. Evid. 702. On the preliminary question about whether Dr. Swanson is qualified, see Fed. R. Evid. 104(a), the Court concludes that he is. While patients with hypoxic/ischemic brain injury may have made up a relatively small part of Dr. Swanson’s clinical practice, the Court finds that he still has substantial knowledge and experience related to this kind of brain injury. See Dkt. No. 153-2 at 22, 24–58. And, as Plaintiffs argue, Opp. to Deft.’s MIL No. 3 at 3, it is not surprising that the literature on deaths by hanging is more limited than literature in other research areas might be. This limitation should not impugn Dr. Swanson’s neurology expertise and ability to provide helpful expert testimony regarding the mechanics of hypoxic/ischemic brain injuries. Likewise, the fact that Dr. Swanson conducted research on the subject of loss of consciousness during hanging after he was retained by Plaintiffs’ counsel does not—in and of itself—undermine a finding that he is qualified as an expert in this matter. However, the Court concludes that certain of Dr. Swanson’s opinions are not based on sufficient facts or data and should be excluded. Specifically, Plaintiffs seek to admit Dr. Swanson’s opinions that individuals experiencing “partial hanging[s]” will take “much longer to lose consciousness,” and that Regal might have remained conscious for “up to 10 minutes.” Dkt. No. 153-2 (“Swanson Dep. Tr.”) at 32:16–23; id. at 37:23–38:13. But Dr. Swanson admitted at his deposition that the support for his conclusion that Regal could have remained conscious for up to 10 minutes was “an editorial written for . . . a London newspaper,” Swanson Dep. Tr. at 43:5– “suicide user-guide[]” that did not, in turn, provide the source for the statement, Dkt. No. 153-3 at 3. Dr. Swanson also remarked that “[f]or all [he] [knew] [the commentator] made the whole thing up.” Swanson Dep. Tr. at 45:25–46:8. Further, Dr. Swanson stated that, beyond a range of about 13–25 seconds, “[n]obody knows” how long someone would stay conscious during a partial hanging. Swanson Dep. Tr. at 43:23–44:12. And the scientific study on which Dr. Swanson relied in forming his opinions does not provide support for the conclusion that individuals experiencing partial hangings take longer to lose consciousness. See Dkt. No. 153-2 at 64 (“It is generally thought in the forensic community that . . . hangings with complete suspension of the body lead[] to death more quickly than hangings in which the body is partially supported (e.g., feet or knees on the floor). . . . However, this study does not support this assumption.”). Even Dr. Swanson’s conclusion that an individual would remain conscious for 13–25 seconds is only tenuously supported by that study, which concluded that the likely range for consciousness was 8– 18 seconds. See id. at 62. But because 13 seconds is within the supported range and 25 seconds departs by only 7 seconds, the Court will permit Dr. Swanson to offer that testimony, and the County is free to probe his opinion on cross-examination. Accordingly, the County’s third motion in limine is GRANTED IN PART AND DENIED IN PART. The Court finds that Dr. Swanson is qualified to provide expert testimony regarding hypoxic/ischemic brain injury, but Dr. Swanson may not offer his opinions that (1) Regal might have remained conscious for longer than 25 seconds, or (2) individuals experiencing partial hangings take longer to lose consciousness, since neither of those opinions is supported by sufficient facts or data. D. Defendant’s Motion in Limine No. 4 to Exclude Certain Evidence Relating to Frederick Regal’s 15-Minute Checks In its fourth motion in limine, the County moves to exclude “evidence regarding any alleged deficiencies in the County correctional deputies’ 15-minute checks of Plaintiffs’ father,” such as “untimely or missed checks.” Dkt. No. 154 (“Deft.’s MIL No. 4”) at 1. The County argues that this evidence is irrelevant to Plaintiffs’ Monell claim, because that claim does not checks. Id. at 2–3. In addition, the County asserts that evidence of isolated incidents of deficient checks cannot support Monell liability. Id. at 3. Finally, the County argues that any relevance this evidence might have is substantially outweighed by the risk of unfair prejudice because it might confuse the issues and “poison the jury against the County.” Id. In response, Plaintiffs argue that “evidence of the County’s untimely and missed checks is highly probative evidence regarding the sole suicide risk reduction measure the County permitted its mental health clinician to give Regal.” Dkt. No. 172 (“Opp. to Deft.’s MIL No. 4”) at 1. Plaintiffs assert that they should be permitted to introduce this evidence to challenge the County’s argument that its practices were reasonable, and as impeachment evidence. Id. at 2–3. Plaintiffs’ theory in this case is that the County had a custom and practice of housing individuals with a known risk of suicide in cells with obvious hanging points and without reasonable measures in place to abate that risk. Opp. to Deft.’s MIL No. 4 at 2. Related to that theory, Plaintiffs have specifically challenged whether the County’s 15-minute check intervention should have involved “staggered” checks—but they have not alleged that there were systemic issues involving County employees’ failure to adequately carry out the checks. See, e.g., Dkt. No. 142 (“SAC”) ¶¶ 21, 29, 42. Evidence of individual County employees missing checks or conducting them in an untimely matter is thus not relevant to Plaintiffs’ theory. And even if it was marginally relevant, the risk that the evidence would confuse or mislead the jury into believing that the County’s liability should be based on those individual instances of missed or untimely checks substantially outweighs the relevance. A “custom and practice” theory must be based on “persistent and widespread” conduct effectively constituting a “well settled [municipal] policy;” it “may not be predicated on isolated or sporadic incidents” such as one officer conducting the welfare check intervention inadequately. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Accordingly, the Court GRANTS the County’s fourth motion in limine. This Order does not prevent Plaintiffs from introducing the evidence for impeachment purposes. E. Defendant’s Motion in Limine No. 5 to Confine Scope of Plaintiffs’ Cross- Examination of Edward Kaftarian, M.D. examination of the County’s expert, Dr. Edward Kaftarian, M.D.” Dkt. No. 155 (“Deft.’s MIL No. 5”) at 1. The County argues that Dr. Kaftarian opined in his expert report only on the “care and treatment provide[d] by the County of Santa Clara’s suicide prevention program” and “Plaintiffs’ allegations of the inadequacy of” that program. Id. Because “Plaintiffs’ counsel went far beyond the scope” of those opinions during Dr. Kaftarian’s deposition, the County aims to tether the scope of his opinions at trial to that laid out in his expert report, in order to prevent Plaintiffs from “unfairly weaponiz[ing]” the County’s expert against it. Id. at 2–3. In opposition, Plaintiffs argue that they should be permitted to question Dr. Kaftarian about his opinions in light of facts related to Regal’s drug use and risk of suicide, as well as “about the increase in suicide risk specifically for jail inmates . . . because jail inmates are more likely to be detoxing from drugs obtained outside of jail.” Dkt. No. 173 (“Opp. to Deft.’s MIL No. 5”) at 1–2. Plaintiffs argue that such questioning is “highly probative of risk of suicide in jails” and is an appropriate line of questioning based on Dr. Kaftarian’s expertise. Id. at 2. In general, “[c]ross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.” Fed. R. Evid. 611(b). When it comes to expert testimony, the scope of a direct examination is defined by that of the expert’s pretrial disclosures and reports. See Am. Airlines Flow-Thru Pilots Coal. v. Allied Pilots Ass’n, No. 15-cv-03125, 2021 WL 2930095, at *5 (N.D. Cal. May 6, 2021), aff’d, No. 21-16131, 2022 WL 4481533 (9th Cir. Sept. 27, 2022) (citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). These guideposts limit the extent to which a party can commandeer another party’s expert to procure favorable opinion testimony on a topic outside of those addressed by the party offering the expert. In this case, Dr. Kaftarian was disclosed to offer expert opinions related to the care and treatment provided to individuals in custody through the County’s suicide prevention program. See Dkt. No. 155-2 at 1 (“At your request, I am offering a professional evaluation of the care and treatment provided by County of Santa Clara’s suicide prevention program . . . and Plaintiffs’ allegations of the inadequacy of the County’s suicide prevention program.”). Plaintiffs are entitled 1 untethered from Dr. Kaftarian’s report and opinions—for example, if Plaintiffs seek testimony on 2 a standard of care or on how Dr. Kaftarian treats, or trains clinicians to treat, a detoxing patient— 3 then Plaintiffs have gone too far. Because it is difficult to draw the line separating proper from 4 improper cross-examination in a vacuum, the Court must DEFER ruling on the County’s fifth 5 motion in limine until trial. If the County wishes to challenge a particular line of Plaintiffs’ 6 questioning, the County may object and/or request a sidebar to discuss whether the questioning 7 falls properly within the scope of Dr. Kaftarian’s report and opinions given in this case. 8 I. ORDER 9 For the foregoing reasons, IT IS HEREBY ORDERED that: 10 1. Plaintiffs’ first motion in limine is GRANTED IN PART AND DEFERRED IN 12 2. Plaintiffs’ second motion in limine is GRANTED. 13 3. Plaintiffs’ third motion in limine is GRANTED. 14 4. Plaintiffs’ fourth motion in limine is GRANTED IN PART AND DENIED IN 16 5. Plaintiffs’ fifth motion in limine is GRANTED IN PART AND DENIED IN PART. S 18 6. Defendant’s first motion in limine is DENIED. 19 7. Defendant’s second motion in limine is GRANTED IN PART AND DENIED 21 8. Defendant’s third motion in limine is GRANTED IN PART AND DENIED IN 23 9. Defendant’s fourth motion in limine is GRANTED. 24 10. Defendant’s fifth motion in limine is DEFERRED. 26 Dated: May 31, 2025

TH LABSON FREEMAN 28 United States District Judge