*1 Before the Court are (A) six motions in limine to exclude certain evidence from the jury's consideration at trial; and (B) Plaintiff Jeffrey Michael Cook (“Plaintiff”)'s motion to include exhibits. The Court's rulings are set forth below.

A. PLEADINGS

On July 6, 2018, Plaintiff commenced the instant action by filing a Complaint against defendants San Bernardino Sheriff's Deputies Does 1-15 pursuant to 42 U.S.C. § 1983 (“Section 1983”). ECF Docket No. (“Dkt.”) 1.

On September 26, 2018, Plaintiff filed the operative First Amended Complaint (“FAC”) against San Bernardino County Sheriff's Deputies Cipriano Lopez, Chris Jones, and Does 4-15 (collectively, “Defendants”).[1] Dkt. 13. The FAC raises the following two causes of action: (1) “42 U.S.C. § 1983 Unreasonable Seizure (Detention/Arrest) Against All Defendant Officers”; and (2) “42 U.S.C. § 1983 Unreasonable Seizure (Excessive Force) Against All Defendant Officers.” Id. Plaintiff alleges Defendants unlawfully detained Plaintiff as they were investigating an incident at a home owned by Plaintiff's mother in the early morning hours of September 21 and September 22, 2017. Id. at 9. Plaintiff further alleges that during this unlawful detention, Defendants used excessive force to beat Plaintiff, causing physical and emotional injuries. Id. at 9-10. Plaintiff seeks punitive and compensatory damages for the resulting injuries and “such other and further relief as the Court may deem[ ] proper.” Id. at 11.

B. MOTIONS IN LIMINE

On December 16, 2019, Defendants filed the following motions in limine:

(1) Motion in Limine No. 1 to Exclude Plaintiff's Opinion Testimony, seeking to exclude Plaintiff's opinions “regarding positional asphyxiation, medical conditions and treatment, and law enforcement equipment and techniques” (“Def. MIL No. 1,” dkt. 43);

(2) Motion in Limine No. 2 to Exclude Documents Not Produced by Plaintiff in Discovery, seeking to exclude documents previously requested in discovery but not disclosed, namely (i) Ethel Cook's cell phone pictures, (ii) Desi V. Guerrero's Facebook page, (iii) front fixed camera data from defendant Lopez's vehicle, (iv) back seat fixed camera data from defendant Jones's vehicle, (v) “personal recordings of Cook and Desmuke depositions,” (vi) cell phone records for defendant Jones, (vii) cell phone records for Officer Cantu, (viii) video of Scott McCune, (ix) “McMahon letter,” (x) “autonomy/Hippocratic oath letter,” and (xi) Dr. El Haggar's deposition questions and answers. (“Def. MIL No. 2,” dkt. 44); and

(3) Motion in Limine No. 3 to Exclude Evidence of Damages, seeking to preclude Plaintiff from presenting any evidence at trial regarding his claimed damages (“Def. MIL No. 3,” dkt. 45).

On January 15, 2020, Plaintiff filed the following motions in limine:

(1) Motion in Limine No. 1 seeking to exclude testimony and evidence of Plaintiff's past convictions for senior abuse and drug possession (“Pls. MIL No. 1,” dkt. 52);

*2 (2) Motion in Limine No. 2 seeking to exclude evidence of urine toxicology results (“Pls. MIL No. 2,” dkt. 53); and

(3) Motion in Limine No. 3 seeking to exclude medical evidence from Dr. Ferreras (“Pls. MIL No. 3,” dkt. 51).

On February 12, 2020, Plaintiff filed a motion to include exhibits, seeking to use a picture purporting to show Plaintiff's alleged injuries and a psychiatric report at trial. Dkt. 66.

On February 13, 2020, Plaintiff filed an Opposition purportedly opposing each of Defendants' motions in limine but addressing only Defendants' motion to exclude the cell phone records of defendant Jones and Officer Cantu. Dkt. 68.

On February 19, 2020, Defendants filed Oppositions to Plaintiff's motion to include exhibits and each of Plaintiff's motions in limine. Dkt. 69 (“Def. Opp. Exhs.”); Dkt. 70 (“Def. Opp. 1”); Dkt. 71 (“Def. Opp. 2”); Dkt. 72 (“Def. Opp. 3”).

A. DEFENDANTS' MOTIONS IN LIMINE

1. Defendants' MIL No. 1 to Exclude Plaintiff's Opinion Testimony Is GRANTED

Defendants seek to exclude Plaintiff's opinion testimony about “positional asphyxiation, medical conditions and treatment, and law enforcement equipment and techniques.” Dkt. 43. Plaintiff does not present any argument in opposition to Defendants' motion. See dkt. 68.

The admissibility of expert testimony is governed by Federal Rule of Evidence 702 (“Rule 702”), which provides:

FED. R. EVID. 702. In Daubert v. Merrell Dow Pharm., Inc., the Supreme Court, in addressing admissibility of scientific expert evidence, held that Rule 702 imposes a “gatekeeping” obligation on the trial judge to “ensure that any and all scientific testimony ... is not only relevant, but reliable.” 509 U.S. 579, 589 (1993). In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court “clarified that the gatekeeping function is not limited to ‘scientific’ expert testimony, but applies to all expert testimony[.]” United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000).

The subject of an expert's testimony must have “a grounding in the methods and procedures of science” and be “more than subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590; see also Kumho Tire Co., 526 U.S. at 152 (stating that district court must “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field”). The proponent of expert testimony bears the burden of showing that the expert is qualified to testify competently concerning the matters at issue, that the expert's methodology is sufficiently reliable, and that the testimony would assist the trier of fact. Daubert, 509 U.S. at 592 n.10.

*3 Here, Plaintiff's failure to present any arguments in opposition to Defendants' Motion in Limine No. 1 is deemed consent to the granting of the motion. See L.R. 7-12. In addition, Plaintiff has not shown he has sufficient expertise in positional asphyxiation, medical conditions and treatment, or law enforcement equipment and techniques. Accordingly, the Court GRANTS Defendants' Motion in Limine No. 1.

2. Defendants' MIL No. 2 to Exclude Documents Not Produced by Plaintiff in Discovery Is GRANTED IN PART AND DENIED IN PART

Defendants seek to exclude documents they requested from Plaintiff during discovery but which Plaintiff did not timely disclose, namely: (1) Ethel Cook's cell phone pictures, (2) Desi V. Guerrero's Facebook page, (3) defendant Lopez's vehicle's front fixed camera data, (4) defendant Jones's vehicle's back seat fixed camera data, (5) “personal recordings of Cook and Desmuke depositions,” (6) cell phone records for defendant Jones, (7) cell phone records for Officer Cantu, (8) video of Scott McCune, (9) “McMahon letter,” (10) “autonomy/Hippocratic oath letter,” and (11) Dr. El Haggar's deposition questions and answers. Dkt. 44. Plaintiff has only presented arguments in opposition to the exclusion of the cell phone records of defendant Jones and Officer Cantu. See dkt. 68. In his opposition, Plaintiff does not attempt to justify his failure to disclose this evidence but, rather, argues the cell phone records of defendant Jones and Officer Cantu are critical to his case. Id. at 2-4.

Federal Rules of Civil Procedure 37(c)(1) (“Rule 37(c)(1)”) provides:

FED. R. CIV. P. 37(c)(1). The Ninth Circuit has explained:

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). “[T]he burden of showing harmlessness or substantial justification rests squarely on plaintiff.” Green v. Baca, 226 F.R.D. 624, 655 (C.D. Cal. 2005), order clarified, No. CV 02-204744-MMM (MANx), 2005 WL 283361 (C.D. Cal. Jan. 31, 2005) (citing Yeti by Molly, Ltd., 259 F.3d at 1107).

*4 Once, again Plaintiff's failure to present any arguments in opposition to the majority of Defendants' motion is deemed consent to granting of the motion, except as to the cell phone records of defendant Jones and Officer Cantu. See L.R. 7-12. In addition, Plaintiff fails to offer any justification for his failure to disclose any of this evidence and has not attempted to establish his failure to disclose was harmless. See dkt. 68. Moreover, Plaintiff has not attempted to establish that his failure to disclose this evidence was harmless. Id. Hence, the exclusion of this evidence is generally an “automatic sanction” under Rule 37(c)(1). See Yeti by Molly, Ltd., 259 F.3d at 1106.

However, with respect to (1) defendant Lopez's vehicle's front fixed camera data, (2) defendant Jones's vehicle's back seat fixed camera data, and (3) the cell phone records of Defendant Jones, the Court finds these are records within Defendants' custody and control; hence, the Court finds any failure to disclose harmless.

Accordingly, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion in Limine No. 2. Evidence of (1) Ethel Cook's cell phone pictures, (2) Desi V. Guerrero's Facebook page, (3) “personal recordings of Cook and Desmuke depositions,” (4) cell phone records for Officer Cantu, (5) video of Scott McCune, (6) “McMahon letter,” (7) “autonomy/Hippocratic oath letter,” and (8) Dr. El Haggar's deposition questions and answers shall be excluded. However, evidence of (1) defendant Lopez's vehicle's front fixed camera data, (2) defendant Jones's vehicle's back seat fixed camera data, and (3) the cell phone records of Defendant Jones may be introduced at trial.

3. Defendants' MIL No. 3 to Exclude Evidence of Damages Is GRANTED IN PART AND DENIED IN PART

Defendants seek to exclude evidence of damages because Plaintiff failed to timely disclose a specific calculation/computation of damages and the untimely calculation/computation of damages he provided has no evidentiary or factual support. Dkt. 45 at 5-6. Plaintiff does not present any argument in opposition to Defendants' motion. See dkt. 68.

Federal Rule of Civil Procedure 26 provides:

FED. R. CIV. P. 26(a)(1)(A)(iii). Pursuant to Federal Rule of Civil Procedure 37(c)(1), “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). This sanction is a “self-executing,” “automatic” sanction to “provide[ ] a strong inducement for disclosure of material ....” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Nevertheless, Rule 37(c)(1)'s exclusion sanctions are not mandatory. Id.; see also Bonzani v. Shinseki, No. 2:11-CV-0007-EFB, 2014 WL 66529, at *3 (E.D. Cal. Jan. 8, 2014) (finding Rule 37(c)(1) exclusion sanctions are not mandatory, even when the insufficient disclosures are not substantially justified or harmless).

A court's decision to exclude evidence is discretionary and the court is given “particularly wide latitude ... to issue sanctions under Rule 37(c)(1).” Yeti by Molly, Ltd., 259 F.3d at 1106. “In exercising that discretion [ ] the court is also guided by the requirement that where imposing a Rule 37(c)(1) sanction amounts to dismissal of a claim, the court is required to consider whether noncompliance involved willfulness, fault, or bad faith, and also the availability of lesser sanctions.” Bonzani, 2014 WL 66529, at *3 (citing R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1247 (9th Cir. 2012) (reversing district court grant of evidentiary sanctions excluding evidence of damages and remanding for consideration of willfulness, fault, or bad faith, and availability of lesser sanctions).

*5 Plaintiff's initial disclosure identified his damages as follows: “Plaintiffs [sic] seek to recover damages for any medical expenses incurred and reasonably expected to be incurred in the future, pain and suffering, emotional distress, and punitive damages, together with attorneys fees and costs pursuant to 42 U.S.C. § 1988. These amounts cannot be calculated at this time.” Dkt. 45 at 7-8, Declaration of Laura Crane (“Crane Decl.”), ¶ 2. Plaintiff, however, failed to supplement this disclosure with any specific amount of damages, until on December 9, 2019, three days before the discovery cut-off, Plaintiff emailed defense counsel:

Id., ¶ 3.

Defendants argue Plaintiff's failure to provide a calculation or explanation for his damages prejudices Defendants “because they have not had the opportunity to conduct discovery into the basis for Plaintiff's claims.” Dkt. 45 at 3.

Again, Plaintiff has not offered any argument in opposition to the motion, see L.R. 7-12, has failed to provide any justification for his failure to disclose, and has not attempted to show his failure to disclose this evidence was harmless. See dkt. 68. However, Plaintiff's initial disclosures are sufficiently complete at this time to fulfill the purpose of providing an assessment of damages “in light of the information currently available to [him] in sufficient detail so as to enable ... Defendant[ ] ... to understand the contours of its potential exposure and make informed decisions as to settlement and discovery.” City & Cty. of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221 (N.D. Cal. 2003). Moreover, intangible damages such as pain and suffering, mental anguish, and lowered quality of life, are generally based on a plaintiff's testimony. See Estate of Gonzalez v. Hickman, No. 05-00660-MMM (RCx), 2007 WL 3237635, at *4 (C.D. Cal. June 28, 2007) (finding plaintiffs' disclosures regarding mental anguish and pain and suffering were sufficient where plaintiffs identified the type of damages sought because their losses would “be proved predominately (if not exclusively) through testimony they offer regarding the emotional suffering they have experienced”). Defendants may argue Plaintiff has not suffered $450,000 worth of such damages, but more specific analysis is not required by Rule 26(a)(1)(C). Id. Finally, even assuming Plaintiff's delay is neither substantially justified nor harmless, the Court finds exclusion sanctions are unreasonably harsh at this time and Defendant has not shown the unavailability of lesser sanctions. See Bonzani, 2014 WL 66529, at *5.

Nevertheless, Plaintiff will be precluded from introducing any documents or testimony from witnesses other than himself regarding his calculation or computation of damages. Hence, any evidence of calculation/computation of damages must be excluded. Accordingly, Defendants' Motion in Limine No. 3 is GRANTED IN PART and DENIED IN PART. Plaintiff may testify regarding his general and intangible damages, but may not introduce any previously undisclosed evidence regarding calculation or computation of damages.

B. PLAINTIFF'S MOTIONS IN LIMINE

1. Plaintiff's MIL No. 1 to Exclude Plaintiff's Criminal History Is GRANTED

*6 Plaintiff seeks to exclude evidence of his history of felony convictions for senior abuse and drug possession because they “are irrelevant and prejudicial to this case.” Dkt. 52 at 2. Defendants argue the evidence is relevant to the deputies' state of mind “if the deputies testify that they knew of the convictions before or during their interactions with Plaintiff,” to Plaintiff's credibility because his account of the events surrounding the senior abuse conviction differs from that he gave in his deposition, and to a conversation between defendant Jones and Plaintiff regarding potential charges and how they might be aggravated by Plaintiff's criminal history. Dkt. 70 at 2-4.

The general rule is character evidence is not admissible when offered to prove that on a particular occasion the person acted in accordance with the character or trait. FED. R. EVID. 404(a)(1). Federal Rule of Evidence 404(b) provides that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” FED. R. EVID. 404(b). However, such evidence may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. at 404(b)(2). In addition, evidence is relevant if “it has any tendency to make a fact more or less probable than it would without the evidence” and that fact “is of consequence in determining the action.” FED. R. EVID. 401. Only relevant evidence is admissible. FED. R. EVID. 402.

Even assuming Defendants knew of Plaintiff's prior convictions, this knowledge has little or no bearing on the lawfulness of the current detention or any force used during this incident. Taylor v. Lemus, No. CV 11-9614 FMO (SSx), 2015 WL 12698306, at *8 (C.D. Cal. June 17, 2015) (finding plaintiff's prior conviction “is not relevant to the [ ] action, as it does not go to any matter at issue,” including “whether defendants used excessive force against plaintiff”); but see Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995) (finding in an excessive force case, the district court did not abuse its discretion by allowing officers to testify about their prior personal contacts with plaintiff and the facts known to them about plaintiff's criminal past). For the same reasons, any conversation between defendant Jones and Plaintiff about his criminal history and how it could aggravate the ultimate sentence Plaintiff might receive for the current charges is not relevant to the detention and use of force at issue here. Finally, the circumstances of Plaintiff's prior convictions are not entirely apparent from the record before the Court so as to make any discrepancies in Plaintiff's descriptions of past events clearly relevant to his credibility. Any attempts to develop the facts underlying Plaintiff's prior convictions so that they might show discrepancies in his characterizations of those events would confuse the issues, potentially mislead the jury, and result in undue delay and wasted time. Hence, the Court finds Plaintiff's prior convictions have limited, if any, relevance to Defendants' liability for unlawful detention and excessive force; the prejudice outweighs any potential probative value of such evidence; and the introduction of such evidence could confuse the issues and result in undue delay. See FED. R. EVID. 403. Accordingly, Plaintiff's MIL No. 1 is GRANTED.

2. Plaintiffs' MIL No. 2 to Exclude Toxicology Results Is GRANTED

Plaintiff seeks to exclude the results of urine drug testing that was conducted without a gas chromatography confirmation analysis. Dkt. 53 at 2. Defendants argue the test results are relevant to Plaintiff's credibility in light of the fact that he has denied using illicit drugs. Dkt. 71 at 2.

*7 Even if the urine drug tests at issue here were not confirmed through gas chromatology analysis, Plaintiff has not established that this would render the test results inadmissible. Plaintiff's objections to the evidence go to its weight rather than its admissibility. See United States v. Chischilly, 30 F.3d 1144, 1154 (9th Cir. 1994) (“The impact of imperfectly conducted laboratory procedures might therefore be approached more properly as an issue not going to the admissibility, but to the weight of the ... evidence.”), overruled on other grounds by United States v. Preston, 751 F.3d 1008 (9th Cir. 2014); see also Johns v. Bayer Corp., No. 09cv1935 AJB (DHB), 2013 WL 1498965, at *9 (S.D. Cal. Apr. 10, 2013) (finding the objections to evidence based on lack of substantiation and unsound methodology “go to the weight rather than the admissibility” of expert's testimony). However, it is unclear how evidence of positive drug tests – on dates other than those at issue, i.e. September 21 and September 22, 2017 -- are relevant. To the extent Defendants argue such evidence is relevant as general impeachment evidence, the Court finds any limited probative value outweighed by the danger of prejudice, confusing the issues, and wasting time. See FED. R. EVID. 403. Accordingly, Plaintiff's MIL No. 2 is GRANTED.

3. Plaintiffs' MIL No. 3 to Exclude Evidence from Dr. Ferreras Is DENIED

Plaintiff seeks to exclude “[a]necdotal evidence by Dr. Ferreras in 2015 [that] has permeated and prejudiced [Plaintiff's] medical records.” Dkt. 51 at 2. Defendants object to the exclusion of this evidence, arguing it is relevant to Plaintiff's behavior on the night of the incident and to Plaintiff's credibility. Dkt. 72 at 2.

Plaintiff appears to object to the medical records of Dr. Ferreras on grounds that the medical records are inaccurate. See dkt. 51. Such objections go to the weight, rather than the admissibility, of the evidence. Cf. Allen v. Am. Cap. Ltd., 287 F. Supp. 3d 763, 790 (D. Ariz. 2017) (“when a doctor offers a reasonable medical opinion, grounded in their relevant experience, appropriate analysis, and in the medical literature, their opinions should not be excluded”). Accordingly, Plaintiff's MIL No. 3 is DENIED.

C. PLAINTIFF'S MOTION TO INCLUDE EXHIBITS IS DENIED

Finally, Plaintiff seeks to admit as exhibits a photograph purportedly showing the injuries he suffered as a result of the Defendants' conduct and a report of a psychiatric evaluation of Plaintiff. Dkt. 66. Defendants object to the admission of the exhibits, arguing Plaintiff's motion amounts to an untimely motion in limine, Plaintiff failed to timely disclose the psychiatric report, Plaintiff failed to timely disclose the photograph, and a photograph purporting to depict Plaintiff's injuries is already included in the record. Dkt. 69 at 2-3.

As with other items of evidence discussed herein, Plaintiff has failed to timely disclose these exhibits pursuant to Rule 26 of the Federal Rules of Civil Procedure. See FED. R. CIV. P.26 (a)(1)(C) (“A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference[.]”). In addition, Plaintiff has failed to justify his failure to disclose these exhibits and has not attempted to show that his failure to disclose them is harmless. Hence, pursuant to Rule 37(c)(1), these exhibits are subject to automatic exclusion. See Yeti by Molly, Ltd., 259 F.3d at 1106-07. Accordingly, Plaintiff's Motion to Include Exhibits is DENIED.

IT IS SO ORDERED.

On October 18, 2018, Plaintiff dismissed defendant San Bernardino County Sheriff's Deputy Alexander Stumbo from the FAC. Dkt. 23.