Free Motion in Limine - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFFS' MOTION IN LIMINE NO. 11 RE: PHOENIX POLICE DEPARTMENT COMMANDER JEFFEORY G. HYNES

Plaintiff moves to exclude portions of the expert opinion testimony of Defendant's
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expert, Phoenix Police Department Commander Jeffeory G. Hynes. Hynes appears qualified
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to opine regarding the correct use of the restraint and handcuffing technique by the City of Phoenix Police and has enough experience to qualify as an expert in this limited capacity. (EXHIBIT 1, CV of Jeffeory G. Hynes). However, Hynes is not a doctor or orthopedic

surgeon, and he is not qualified to make statements such as, "The suspect's action and

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resistance determine if an injury is to occur as in this case.... [T]he suspect's
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resistance/noncompliance actions may lead to injuries they receive, as in this case.... If Mrs. August had decided to cooperate with the officers and when told to do so stop resisting and struggling with them I have no doubt that she would not have received this or any other injury to her arm." (EXHIBIT 2, Hynes' July 29, 2004 report). Hynes has admitted he lacks the medical expertise to opine regarding what caused the dislocation of Mrs. August's elbow: A: ... My subjective opinion is that her actions, of the extreme struggle, the

twisting, the noncompliant behavior, resulted in the injury to her arm.
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Q:
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What's your subjective conclusion as to the precise mechanism of injury? Form. Foundation.

Ms. Holsman: A:

if you're asking for a precise breakdown of the medical, I don't have that

expertise, sir. Her arm was injured. (EXHIBIT 3, deposition of Jeffeory G. Hynes, p. 37:13-21). Hyne's CV also establishes that while he has significant experience in community policing issues and "problem solving" on an institutional level as relates to "police in society," he has not a single reference to any training or experience in medical issues. There is not even so much as a reference to a basic first aid call on his CV, and yet he purports to have

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foundation to opine about a complex medical causation issue! This is precisely the type of
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expert opinion that should be excluded:

Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)] invoked an important constraint on expert testimony that is particularly relevant here: Rule 403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury..." Judge Weinstein has Case 2:03-cv-01892-ROS

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explained: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403... exercises more control over experts than lay witnesses." Jinro America Inc. v. Secure Investments, Inc., 266 F.3d. 993, 1005 (9th Cir. 2001) (quoting Daubert, 509 U.S. at 595, 113 S.Ct. 2786, quoting 138 F.R.D. 631, 632 (1991).

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In addition to being unqualified, the "no injury but for her resisting arrest" opinion,
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cloaked under the mantle of expertise, will unfairly prejudice Mrs. August. Hynes cannot opine whether the dislocation was caused by the application of force to Mrs. August, or Mrs. August's bodily movements and therefore, Hynes' speculative opinion regarding the cause of Mrs. August's injury lacks foundation, is highly prejudicial, and should be excluded. DATED this 17th day of November, 2006.

TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on November 17, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

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Kathleen Wieneke:

Jennifer L. Holsman: Randall H. Warner:

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By:

s/ Aly Shomar-Esparza

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