Ronald Weekley, Jr. v. City of Los Angeles , 656 F. App'x 824 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD WEEKLEY, Jr., No. 14-56210
Plaintiff-Appellant, D.C. No. 2:13-cv-04760-RZ
v.
MEMORANDUM*
CITY OF LOS ANGELES,
Defendant,
and
MIGUEL REYNOSO, Officer; ARTURO
GONZALEZ, Officer; FRANCISCO
ULLOA; AQUILES MORALES, Sergeant,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Ralph Zarefsky, Magistrate Judge, Presiding
Submitted July 6, 2016**
Pasadena, California
Before: FERNANDEZ, CLIFTON, and FRIEDLAND, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiff-Appellant Ronald Weekley, Jr. appeals following a nine-day jury
trial, which resulted in a verdict in favor of Defendants the City of Los Angeles
and Los Angeles Police Department (“LAPD”) Officers Reynoso, Gonzalez, Ulloa,
and Morales.1 Weekley claims that the trial court erred in allowing some of the
testimony of a defense expert, psychiatrist Dr. Rosenberg, and that the jury
instructions misstated the law and misled the jury. We affirm.
The events giving rise to this lawsuit began in August 2012 as Weekley was
riding home on his skateboard. At trial, Weekley testified that he got off his
skateboard at an intersection and was walking on the sidewalk with his skateboard
in hand when a patrol vehicle passed him. In contrast, LAPD Officers Reynoso
and Gonzalez, the two officers initially at the scene, testified that they saw
Weekley skateboarding in the street (rather than carrying it on the sidewalk) and
that they had to brake their police vehicle suddenly to avoid being hit by Weekley.
Officer Gonzalez testified that he exited his patrol to try to talk to Weekley.
When Weekley failed to stop, Gonzalez reached out to Weekley and Weekley
pulled away. Weekley continued to resist, and a fight ensued, which ultimately
resulted in Weekley suffering a fractured cheekbone. Weekley subsequently filed
suit against Defendants, alleging excessive force in violation of his constitutional
rights and seeking damages for the injuries he suffered as a result of the altercation.
1
The parties consented to proceeding before a magistrate judge in this matter.
2
To discuss the extent of the physical and emotional injuries alleged by
Weekley, both sides offered expert testimony. Before trial, Weekley had objected
in a motion in limine to admitting testimony by Dr. Rosenberg that Weekley had
exaggerated certain symptoms during Dr. Rosenberg’s examination of him. The
court denied the motion. Weekley argues on appeal that the court abused its
discretion by denying the motion and allowing Dr. Rosenberg to testify on what
Weekley characterizes as the subject of Weekley’s credibility. We disagree.
As an initial matter, even if Dr. Rosenberg’s testimony would have been
inadmissible, it appears that Weekley opened the door to Dr. Rosenberg’s
testimony by initially eliciting testimony from his own expert, neurologist Dr. Fisk,
relating to his sincerity in answering questions during Dr. Fisk’s examination.
“Under the rule of curative admissibility, or the ‘opening the door’ doctrine, the
introduction of inadmissible evidence by one party allows an opponent, in the
court’s discretion, to introduce evidence on the same issue to rebut any false
impression that might have resulted from the earlier admission.” United States v.
Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988). The testimony offered by Dr.
Rosenberg was also on the subject of the reliability to Weekley’s responses during
his medical exam. Dr. Rosenberg testified, “Given the lack of alternative
reasonable explanations” for the elevation of the “fake symptom scale of the
MMPI-II” test he had administered, “and given how high the elevation was, the
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only reasonable explanation from a psychiatric standpoint was the intentional
exaggeration of his symptoms, primarily exaggeration of symptoms related to his
ongoing physical claims.”2 Dr. Rosenberg’s testimony directly responded to the
testimony Weekley had earlier offered from Dr. Fisk, because both addressed
whether Weekley was faking any responses during medical examinations
undertaken to determine the extent of his mental and physical injuries. Dr.
Rosenberg’s testimony was therefore admissible at the discretion of the trial court.
Moreover, even if Dr. Fisk had not testified, the trial court would have been
within its discretion in admitting Dr. Rosenberg’s testimony. Dr. Rosenberg did
not opine as to Weekley’s general credibility as a witness on all matters. Rather,
2
To the extent that Weekley objects to Dr. Rosenberg’s testimony on the basis that
Dr. Rosenberg went beyond responding to Fisk by suggesting a motive for
exaggerating symptoms—in particular, that Weekley was exaggerating his
symptoms for financial gain—his objection fails because Weekley specifically
elicited that aspect of Dr. Rosenberg’s testimony. Statements about Weekley
seeking financial gain were the result of questions on cross-examination by
Weekley’s attorneys like, “He’s intentionally distorting so that he can get more
money from this jury; correct, you think?” Thus, Weekley appears to have invited
any error on himself. United States v. Cazares, 788 F.3d 956, 983 (9th Cir. 2015)
(denying defendants’ Confrontation Clause violation argument based, in part, on
the fact that “defense counsel clearly invited this testimony” on cross-
examination); United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir.), as
amended (Sept. 21, 1994) (“An error under the invited error doctrine is ‘an error
that is caused by the actions of the complaining party.’” (quoting United States v.
Schaff, 948 F.2d 501, 506 (9th Cir. 1991))).
4
Dr. Rosenberg explained, based on his qualifications as an expert,3 that Weekley’s
responses to the testing he conducted suggested that Weekley was exaggerating his
symptoms. Such testimony is properly admitted at the discretion of the trial court.
See United States v. Sine, 493 F.3d 1021, 1033-34 (9th Cir. 2007) (holding that the
government’s use during cross-examination of factual findings from a prior
judicial order was improper because “jurors are likely to defer to findings and
determinations relevant to credibility made by an authoritative, professional
factfinder rather than determine those issues for themselves,” but explaining that
“[o]ur determination . . . does not mean that admission of such facts will always
fail the balancing test of Rule 403.”); United States v. Rohrer, 708 F.2d 429, 434
(9th Cir. 1983) (“Although the credibility of a witness, unlike his competency, is a
question for the jury, admission of expert psychiatric testimony bearing on
credibility lies in the judge’s discretion.”).
Separately, Weekley asserts that the trial court erred in giving Jury
Instruction No. 18 without the clarifying language or instruction suggested by
Weekley. Even if there was error in the instructions, however, any error was
3
Weekley also argues that Dr. Rosenberg never presented a sufficient basis under
Daubert for his testimony as to credibility. Contrary to Weekley’s assertions, the
record is replete with evidence that Dr. Rosenberg provided a sufficient medical
basis for his testimony as to Weekley’s exaggeration of symptoms during his
examination.
5
harmless and therefore does not warrant reversal. Gantt v. City of Los Angeles,
717 F.3d 702, 707 (9th Cir. 2013). The special verdict form in this case first
required the jury to answer whether “Defendants violated [Weekley’s] Fourth
Amendment Constitutional Rights by unlawfully detaining him?” The jury
answered “No” as to all Defendants. This question matches Jury Instruction No.
17, which told jurors that “In general, a seizure of a person for a stop is reasonable
if, under all of the circumstances known to the officers at the time . . . the officers
had a reasonable suspicion that the person seized was engaged in a traffic
infraction,” and explained “[u]nder California law, ‘Every pedestrian upon a
roadway shall yield the right-of-way to all vehicles upon the roadway so near as to
constitute an immediate hazard.’ A person on a skateboard is considered a
pedestrian. A violation of this law constitutes an infraction.” Once the jury
concluded that Weekley was not unlawfully detained for the traffic infraction, as
Jury Instruction No. 17 instructed, it is irrelevant whether the jury could have read
Instruction No. 18 to allow Weekley’s arrest in the absence of an initial lawful
reason to detain.
For the foregoing reasons we AFFIRM.
6