The opinion
FILED
NOT FOR PUBLICATION JAN 14 2010
MOLLY C. DWYER, CL
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE A
FOR THE NINTH CIRCUIT
FRANCISCO SANCHEZ, No. 08-17272
Plaintiff-Appellant, D.C. No. 4:05-CV-00583-RCC
v. MEMORANDUM *
CLARENCE DUPNIK, Pima County
Sheriff, KARL J. WOOLRIDGE, JANE
DOE DOYLE, DONALD DOYLE,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona,
Raner C. Collins, District Judge, Presiding
Argued and Submitted December 11, 2009
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M.G. Lynn, U.S. District Judge for the
Northern District of Texas, sitting by designation.
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Before: SCHROEDER and CALLAHAN, Circuit Judges, and LYNN, ** District
Judge.
Appellant Francisco Sanchez appeals the district court’s judgment, after a
jury trial, based on the verdict that Appellees Woolridge and Doyle, deputy sheriffs
in the Pima County Sheriff’s Department, were entitled to qualified immunity on a
claim for excessive force asserted under 42 U.S.C. § 1983. This court has
jurisdiction under 28 U.S.C. § 1291. Appellant complains of the district court’s
rulings on discovery issues and on the admission of evidence. We review those
rulings for abuse of discretion. See Childress v. Darby Lumber, Inc., 357 F.3d
1000, 1009 (9th Cir. 2004); United States v. Curtin, 489 F.3d 935, 943 (9th Cir.
2007) (en banc).
I.
The district court did not abuse its discretion by not reopening discovery to
allow Sanchez to designate a new expert witness. Sanchez did not show
substantial justification for his failure to timely disclose an expert, nor did he
demonstrate that there would be no harm to the Defendants from the late
designation. See Fed. R. Civ. P. 37(c)(1). Sanchez did not disclose an expert by
the court-ordered August 9, 2006 deadline nor by the stipulated April 1, 2007
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deadline, established by agreement in light of the death of Sanchez’s original
expert. The Rule 16 Scheduling Order had set the deadline for pretrial motions,
and the disruption to the court’s and the opposing parties’ schedules, which would
occur by lifting the deadlines, was not harmless, although the trial date was months
away. See generally Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062
(9th Cir. 2005). The fact that Sanchez’s prior counsel was dilatory in identifying a
new expert does not show substantial justification. We cannot say that the district
court abused its discretion in adhering to the deadlines in place.
II.
The district court acted within its discretion by denying Sanchez’s request to
call the opposing party’s expert as his own expert during his case-in-chief.
Sanchez failed to comply with the disclosure requirements of Fed. R. Civ. P.
26(a)(2) and requested to call his opponent’s expert only fifteen days before trial.
Although some courts have held that once a witness is designated as an expert, he
or she may be called by the opposing party, although not designated by that party,
those decisions did not address the issue of whether a district court abuses its
discretion by denying a request to call an opponent’s expert. See, e.g., Nat’l R.R.
Passenger Corp. v. Certain Temp. Easements, 357 F.3d 36, 42 (1st Cir. 2004);
Kerns v. Pro-Foam of South Alabama, Inc., 572 F. Supp. 2d 1303, 1305, 1308-10
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(S.D. Ala. 2007). At the time of the request, Sanchez’s counsel stated that “I don’t
know that it adds one way or another” to call opponent’s expert, but noted that “[i]t
looks weird that we don’t have an expert . . . .” Sanchez was permitted to fully
cross-examine his opponent’s expert during trial. The district court properly could
have concluded that the flimsy reasons for altering the order of presentation of
evidence so soon before trial were outweighed by the risk of unfair surprise and
prejudice to Defendants’ anticipated presentation of their case. Accordingly, the
district court’s decision did not lie “beyond the pale of reasonable justification
under the circumstances.” See Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir.
2000).
III.
The district court did not abuse its discretion by excluding evidence of
Sanchez’s acquittal on the charges arising out of his arrest. Sanchez offered the
acquittal as relevant to the arresting officers’ state of mind. Since state of mind is
legally irrelevant to a claim of excessive force, which is analyzed for objective
reasonableness, the district court was within its discretion to exclude evidence of
Sanchez’s acquittal. See generally Graham v. Connor, 490 U.S. 386, 391-92, 397-
99 (1981).
AFFIRMED.
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