Cobarrubia v. Edwards

Background

The court held a pretrial conference on September 15, 2021, and issued this order to memorialize rulings made at the conference and on submitted motions in limine. A motion in limine is a request to decide before trial whether particular evidence or arguments may be presented to the jury.

The case concerns the use of a police K9 during the incident involving Nicole Cobarrubia and Defendant Jeffery Edwards. The court stated that Cobarrubia had abandoned her claim that the use of distraction blows was excessive. She therefore was precluded from introducing evidence or seeking recovery for injuries incurred from those blows. The court overruled her objection to facts identified as undisputed in the joint pretrial statement, while ordering the parties to meet and confer and submit neutral-language stipulated facts.

Motions Concerning Plaintiff’s Evidence

Plaintiff’s Motion No. 1—Don S. Cameron. Cobarrubia initially sought to exclude Defendant’s use-of-force expert, Don S. Cameron, under Federal Rule of Evidence 702. The court found Cameron qualified to testify about use of force and the reasonableness of the K9 bite’s duration. At the pretrial conference, Cobarrubia stated that she no longer objected to Cameron’s testimony and essentially withdrew the motion.

Plaintiff’s Motion No. 2—Dave Reaver. Cobarrubia sought to exclude Dave Reaver as an allegedly improperly disclosed unretained expert. The court concluded that Reaver was not a retained expert because his company selected and provided police K9s and training to the County of Alameda, including training for Edwards and the K9 involved in the case. The court also noted that Reaver would not be given the case facts or asked to give an opinion about the reasonableness of the bite’s duration. The motion was denied.

Plaintiff’s Motion No. 3—Prior bad acts. Cobarrubia sought to exclude evidence of prior bad acts, including criminal history and unrelated encounters with law enforcement. The court ruled that the identified 2016 incident was relevant, was not unfairly prejudicial, and could be admitted for purposes including motive, opportunity, intent, plan, and knowledge. The court also overruled a hearsay objection because the statement was offered to show what deputies, including Edwards, knew at the time, rather than to prove the statement’s truth.

Under the parties’ stipulation, the court excluded several categories of listed criminal charges unless Cobarrubia opened the door to that evidence. Those categories included her then-pending charges; March 2, 2020 probation-violation charges; specified petty-theft charges from 2009, 2016, and 2018; February 11, 2003 charges involving driving on a suspended license and hit-and-run; and August 13, 2002 charges involving driving with a high blood-alcohol concentration and hit-and-run. The court stated that Cobarrubia had not identified all prior acts she wanted excluded, so disputed acts not covered by the stipulation would be addressed during trial. The motion was granted in part and denied insofar as it sought to exclude the 2016 incident based on prejudice.

Plaintiff’s Motion No. 4—Remote medical testimony. Cobarrubia sought permission for all medical providers to testify by videoconference. The court found that she had not shown good cause or compelling circumstances on the motion as presented. The motion was denied without prejudice, and the parties were ordered to meet and confer about whether Dr. Amber Jones should testify remotely.

Defendant’s Motions in Limine

Defendant’s Motion No. 1—Unrelated incidents. Edwards sought to exclude evidence or argument about unrelated incidents, lawsuits, or complaints involving him, the County, or other law-enforcement entities, including references to Black Lives Matter, Oscar Grant, and George Floyd. Because Cobarrubia stated that she did not intend to introduce such material, the court deemed her not to oppose the motion. The motion was granted.

Defendant’s Motion No. 2—Undisclosed damages. Edwards sought to exclude witnesses and evidence concerning damages that had not been disclosed, particularly special damages, lost wages, and lost earning capacity. The court noted that Cobarrubia affirmatively stated she would not introduce evidence of special damages and had not shown that her failure to comply with disclosure requirements was substantially justified or harmless. The motion was granted.

Defendant’s Motion No. 3—Ernest Burwell. Edwards sought to exclude or limit Cobarrubia’s police-practices expert, Ernest Burwell. The court declined to exclude all of Burwell’s testimony but precluded opinions that contradicted the prior summary-judgment order, addressed matters no longer relevant after the County’s dismissal, or were speculative, unreliable, medical, or related to damages beyond Burwell’s training and experience.

Burwell could testify about the reasonableness of the K9 bite’s duration, K9 use-of-force policies, K9-handler training, the general use of police K9s, and when Cobarrubia may have stopped resisting, if that was his opinion. He could not offer legal conclusions such as whether Edwards used excessive force, testify about Cobarrubia’s subjective pain, determine the medical cause or disfigurement of her injuries, vouch for witnesses, or opine that she was passive during the initial bite-hold. The court also limited his opinions generally to the K9’s use after Cobarrubia ceased injuring the K9, while permitting testimony about County policies on using police K9s as a method of force. The motion was granted in part, and the court denied the request to limit Burwell strictly to his written report.

Defendant’s Motion No. 4—Post-incident review. Edwards sought to exclude evidence, testimony, or argument about the County’s post-incident review. Cobarrubia did not intend to introduce that material, and the court also found it excludable under Federal Rules of Evidence 403 and 407. The motion was granted.

Defendant’s Motion No. 5—“Reptile” or “Golden Rule” arguments. Edwards sought to bar arguments asking jurors to place themselves in the position of either party. The court said counsel must avoid improper closing arguments but would not categorically prohibit the particular trial strategy described as “reptile” theory. The motion was denied.

Dr. Amber Jones’s Testimony

The court treated Edwards’s objection to the scope of Dr. Jones’s testimony as a motion in limine. Because Jones was disclosed as a non-retained treating doctor and no expert report was provided, the court limited her testimony to opinions formed during the treatment she performed. The motion was granted. Jones’s testimony was limited to the surgery she performed and what she observed, which could include an opinion about the bite’s severity. She could not opine about causation, prognosis, mitigation of damages, recovery, or rehabilitation unless she formed those opinions during her treatment. The court also stated that she should generally avoid comparisons to other dog bites.

Trial Bifurcation and Jury Instructions

Although Edwards did not file a formal motion to bifurcate, the court denied his proposal to divide the trial into separate liability and damages phases. The court found separate phases would not be economical or efficient because Cobarrubia was already precluded from introducing evidence of special damages and damages related to the distraction blows. The court stated that it would provide proposed preliminary and final jury instructions before the relevant stages of trial and allow the parties to address them before finalization.

Overall Disposition

This order resolved pretrial evidentiary, testimony, argument, and trial-structure issues. It did not decide the remaining excessive-force claim on the merits. The rulings were: Cobarrubia’s objection was overruled; her first motion was withdrawn; her second motion was denied; her third motion was granted in part and denied as to the 2016 incident; her fourth motion was denied without prejudice; Edwards’s first, second, and fourth motions were granted; his third motion was granted in part; his fifth motion was denied; the motion concerning Dr. Jones was granted; and the proposal to bifurcate the trial was denied.