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 17-cv-00600-LB

PLAINTIFF’S MOTION IN LIMINE NO. 4 TO PRECLUDE DEFENDANTS FROM OFFERING IMPROPER 

“EXPERT” TESTIMONY BY CAPTAIN CULLEN DODD 

MIRIAM KIM (State Bar No. 238230) 

miriam.kim@mto.com 

EMILY C. CURRAN-HUBERTY (State Bar No. 293065) 

emily.curran-huberty@mto.com 

SKYLAR D. BROOKS (State Bar No. 310707) 

skylar.brooks@mto.com 

MUNGER, TOLLES & OLSON LLP 

560 Mission Street 

Twenty-Seventh Floor 

San Francisco, California 94105-2907 

Telephone: (415) 512-4000 

Facsimile: (415) 512-4077 

Attorneys for Plaintiff 

RENEE LEPAGE 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 

RENEE LEPAGE, an individual, 

Plaintiff, 

vs. 

COUNTY OF NAPA; COUNTY OF NAPA 

SHERIFF’S DEPARTMENT; AND DEPUTY 

TIMOTHY REID, 

Defendants. 

 Case No. 3:17-cv-00600-LB 

PLAINTIFF’S MOTION IN LIMINE NO. 4

TO PRECLUDE DEFENDANTS FROM 

OFFERING IMPROPER “EXPERT” 

TESTIMONY BY CAPTAIN CULLEN 

DODD 

Judge: Hon. Laurel Beeler 

Date: September 26, 2019 

Time: 1:30 p.m. 

Crtrm.: B – 15th Floor 

Trial Date.: October 15, 2019 

Case 3:17-cv-00600-LB Document 118 Filed 09/06/19 Page 1 of 5
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 -1- 17-cv-00600-LB

PLAINTIFF’S MOTION IN LIMINE NO. 4 TO PRECLUDE DEFENDANTS FROM OFFERING IMPROPER 

“EXPERT” TESTIMONY BY CAPTAIN CULLEN DODD 

I. INTRODUCTION 

Plaintiff Renee LePage herein moves to preclude Defendants County of Napa, County of 

Napa Sheriff’s Department, and Deputy Timothy Reid (collectively, “Defendants”) from 

presenting their employee, Captain Cullen Dodd, as an “expert” witness or characterizing his 

testimony as expert opinion. To date, Defendants have failed to disclose or otherwise identify 

what expert opinion or testimony Captain Dodd intends to offer that has any relevance to any 

claim or defense in this action. In the absence of any concrete expert opinion or testimony that is 

both relevant and admissible, the vague presentation of Captain Dodd as an “expert” testifying on 

Defendants’ behalf risks creating unfair prejudice and jury confusion. The Court should therefore 

preclude Defendants from presenting Captain Dodd as an expert witness as to any subject pursuant 

to Federal Rules of Evidence 402, 403, and 702. 

II. BACKGROUND 

Captain (then-Lieutenant) Dodd was first disclosed by Defendants when they produced 

him as 30(b)(6) witness in response to Ms. LePage’s Notice of 30(b)(6) Deposition regarding 

Napa County’s training, policies, and procedures. Ex. A (Pl.’s 30(b)(6) Notice),1

 Attachment A at 

2. 

Several weeks after his deposition, Defendants disclosed Captain Dodd as a “non-retained 

expert” under Federal Rule of Civil Procedure 26(a)(2)(C), stating as follows: 

Lt. Dodd is expected to testify regarding Sheriff’s Office customs, practices, 

procedures, and policies as they pertain to the incident, and the subjectmatter of the incident related investigation. A summary of his facts and 

opinions which he is expected to testify to may be found in his deposition 

testimony. 

Ex. B (Defs.’ Expert Disclosures). 

Ms. LePage initially objected to this disclosure to the extent it suggested that Captain Dodd 

intended to opine on the reasonableness or appropriateness of Defendant Reid’s or the County’s 

actions or conduct during the incident or in the investigation that followed. Because Captain 

Dodd had no percipient knowledge of the incident or the County’s investigation, Ms. LePage’s 

 

1

 Unless otherwise indicated, all exhibit numbers refer to the Declaration of Emily C. CurranHuberty, filed concurrently herewith. 

Case 3:17-cv-00600-LB Document 118 Filed 09/06/19 Page 2 of 5
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 -2- 17-cv-00600-LB

PLAINTIFF’S MOTION IN LIMINE NO. 4 TO PRECLUDE DEFENDANTS FROM OFFERING IMPROPER 

“EXPERT” TESTIMONY BY CAPTAIN CULLEN DODD 

position was that Captain Dodd could not offer opinions specific to the incident or investigation 

without providing a written report. Ex. C (July 24, 2018 email). 

In response, Defendants clarified that Captain Dodd did not intend to offer any opinion 

specific to the incident itself or the subsequent investigation and would not opine, for instance, 

that Deputy Reid’s actions toward Ms. LePage were reasonable or in compliance with Napa 

County policy. Ex. D (Aug. 2018 email chain) at 1-2. Defendants further clarified that: “[Dodd] 

is being offered to opine at to the Monell related issues, e.g. the County’s customs, practices, and 

policies; to include, e.g., their sufficiency under and compliance with requirements set forth by the 

California Penal Code and POST.” Id. at 1. 

In October 2018, Ms. LePage voluntarily dismissed her Monell claim with prejudice. ECF 

No. 94. Accordingly, the sufficiency of Napa County’s policies and compliance with the 

California Penal Code and POST are no longer at issue in the case. 

In the meet and confer regarding the parties’ pretrial filings, Defendants again confirmed 

that they do not intend to call Captain Dodd to offer any opinion regarding the incident or 

investigation or the reasonableness of Deputy Reid’s or other officers’ conduct. Defendants 

indicated, however, that they still intend to call Captain Dodd as an expert witness. When asked 

what expert opinions or testimony Captain Dodd would offer given that the Monell claim was no 

longer in the case, Defendants indicated that Captain Dodd would testify to what the County’s 

policies entail. 

III. ARGUMENT 

To be admissible, evidence must relevant, and its probative value must not be substantially 

outweighed by the danger of “unfair prejudice, confusing the issues, misleading the jury, undue 

delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403; see also

id. 402. Moreover, expert testimony is admissible only if it will “help the trier of fact to 

understand the evidence or to determine a fact in issue.” Id. 702(a). 

As the issues have developed in this case, any “expert” testimony Captain Dodd intends to 

offer would be neither relevant nor helpful, and would pose a danger of unfair prejudice and jury 

confusion. After Ms. LePage dismissed her Monell claim, there was no longer any need or basis 

Case 3:17-cv-00600-LB Document 118 Filed 09/06/19 Page 3 of 5
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 -3- 17-cv-00600-LB

PLAINTIFF’S MOTION IN LIMINE NO. 4 TO PRECLUDE DEFENDANTS FROM OFFERING IMPROPER 

“EXPERT” TESTIMONY BY CAPTAIN CULLEN DODD 

for Defendants to offer any witness to opine on the adequacy of Napa County’s policies; indeed, 

Defendants indicated in meet and confer that they would move in limine to exclude any such 

evidence. Ex. E (Aug. 16, 2019 email). 

Defendants have also disavowed any intent to have Captain Dodd opine that Defendant 

Deputy Reid’s actions toward Ms. LePage during the alleged incident were reasonable, consistent 

with Napa County’s policies and procedures, or otherwise appropriate. Ex. D (Aug. 2018 email 

chain). This concession is required by the Federal Rules. The law is clear that a so-called “nonretained” expert who is not required to submit a report under Rule 26(a)(2)(C) may only “offer 

testimony limited to his or her percipient knowledge.” Cantu v. United States, No. CV 14-000219 

MMM, 2015 WL 12743881, at *4 (C.D. Cal. Apr. 6, 2015); see also Goodman v. Staples The 

Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) (same). Captain Dodd has no 

percipient knowledge of the incident that gave rise to this lawsuit, and thus cannot opine as to its 

specifics after having failed to provide a written report. 

If Defendants intend merely for Captain Dodd to testify to what Napa County’s policies 

are, such testimony is classic fact testimony offered by an employee of Defendants who 

previously offered such testimony as a 30(b0(6) witness. Napa County’s policies are not so 

inherently complex, technical, or specialized that they require a so-called “expert” to explain them 

to the jury. 

In the absence of any expert opinion or testimony that could conceivably be relevant and 

helpful to the trier of fact, allowing Defendants to offer Captain Dodd as an expert would risk 

unfair prejudice and jury confusion. Calling Captain Dodd an “expert” when his testimony does 

not meet standards required of expert testimony under Rule 702 may confer a halo of credibility 

and suggest that the jury place undue weight on his testimony. See United States v. Freeman, 498 

F.3d 893, 903 (9th Cir. 2007) (noting the danger that an investigator who testifies as both a fact 

witness and expert will “receive[] unmerited credibility for lay testimony” (internal quotation 

marks omitted)); Jinro Am. Inc. v. Secure Invs., Inc., 266 F.3d 993, 1004 (9th Cir. 2001) (“[A]s the 

opinion of a purported “expert” . . . [a witness’s] statements [a]re likely to carry special weight 

with the jury,” such that “care must be taken to assure that a proffered witness truly qualifies as an 

Case 3:17-cv-00600-LB Document 118 Filed 09/06/19 Page 4 of 5
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PLAINTIFF’S MOTION IN LIMINE NO. 4 TO PRECLUDE DEFENDANTS FROM OFFERING IMPROPER 

“EXPERT” TESTIMONY BY CAPTAIN CULLEN DODD 

expert, and that such testimony meets the requirements of Rule 702.”), op. amended on other 

grounds by 272 F.3d 1289. Alternatively, the jury may simply be confused as to why one of the 

county’s employees is being presented as an “expert,” while others are not. Either possibility 

should be enough to prevent Defendants from proffering Captain Dodd as an “expert,” because the 

probative value of doing so—as compared to simply soliciting the same testimony from him as a 

fact witness—is so slight as to be non-existent. 

IV. CONCLUSION 

For the foregoing reasons, Defendants should be precluded from presenting Captain Dodd 

as an expert witness. 

DATED: August 20, 2019 Respectfully submitted, 

MUNGER, TOLLES & OLSON LLP 

 MIRIAM KIM 

EMILY C. CURRAN-HUBERTY 

SKYLAR D. BROOKS 

By: /s/ Emily C. Curran-Huberty 

 Emily C. Curran-Huberty 

 

 Attorneys for Plaintiff RENEE LEPAGE 

Case 3:17-cv-00600-LB Document 118 Filed 09/06/19 Page 5 of 5