FILED
NOT FOR PUBLICATION OCT 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDSAY K. HUNT, No. 11-35600
Plaintiff-Appellant, D.C. No. 3:08-cv-00802-AC
v.
MEMORANDUM1
CITY OF PORTLAND, an Oregon
municipal corporation; WILLIAM
HUBNER; JOSEPH SCHILLING; ERIC
HENDRICKS; BRYAN PARMAN; JUDY
BRUMFIELD, individuals,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted October 10, 2012
Portland, Oregon
Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.
Plaintiff-Appellant Lindsay K. Hunt appeals the district court’s order
granting the City Defendants motion for summary judgment on Hunt’s First
1
This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-
3.
Amendment claim, and evidentiary rulings at trial pertaining to the admission of
expert testimony and the expert’s written report. We have jurisdiction pursuant to
28 U.S.C. § 1291. For the reasons set forth below, we affirm the district court.
1. We review the district court’s grant of summary judgment de novo.
Davis v. Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007). The Supreme Court has
held that “when public employees make statements pursuant to their official duties,
the employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.”
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). As a Portland Police Bureau
Officer, Hunt had the duty to report misconduct by other officers. Viewing the
facts in the light most favorable to Hunt (thereby eliminating any alleged disputed
facts), a practical inquiry demonstrates that this duty was not altered by an alleged
“unwritten policy” or statements made to Hunt by her supervising officers, who
had no authority to change the policy. Because Hunt had a duty to report such
misconduct, her speech was not protected under the First Amendment and the
district court’s grant of summary judgment was proper.
2. We review evidentiary rulings on the admissibility of expert witness
testimony for abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141
2
(1997). Evidentiary rulings should not be reversed “absent some prejudice.”
Defenders of Wildlife v. Bernal, 204 F.3d 920, 927-28 (9th Cir. 2000).
Under Federal Rule of Evidence 702, an expert witness “may testify in the
form of an opinion or otherwise if . . . the expert’s . . . specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in issue . . . .”
Fed. R. Evid. 702. Under Federal Rule of Evidence 704(a), an expert opinion “is
not objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704(a).
Before the medical expert was allowed to testify, the district court
circumscribed the scope of his testimony. The district court ruled that the expert
could not opine on Hunt’s believability. Accordingly, the district court excluded
the testimony to the extent it related to liability and allowed it only as to damages
causation. Because the district court circumscribed the scope of trial testimony,
and because the district court limited the testimony to the issue of damages
causation, allowing the testimony was not an abuse of discretion. While the expert
testified that Hunt suffered from PPD, and that she had this condition before
becoming a police officer, the district court did not allow the expert to connect any
inference that might be drawn regarding what effect, if any, PPD had on Hunt’s
3
perception of the relevant events. The issue of Hunt’s credibility was left to the
jury.
3. With respect to the expert’s written report, we conclude that the report is
hearsay to which no hearsay exception applies. The district court did not explain
its basis for admitting the report at trial. Therefore, we conclude that it was error
for the district court to admit the inadmissible report. However, we decline to
reverse the jury’s verdict because Hunt has not shown that “more probably than
not, the lower court’s error tainted the verdict.” Tennison v. Circus Circus
Enterprises, Inc., 244 F.3d 684, 688 (9th Cir. 2001).
The district court heavily redacted the expert’s written report, and the
written report was largely cumulative of the expert’s trial testimony. While
cumulative testimony may be excluded under Federal Rule of Evidence 403, we
cannot conclude that the admission of cumulative testimony in this case was
prejudicial. Hunt’s counsel participated in redaction of the written report, and
therefore provided input on the limitations placed on the expert’s testimony.
Moreover, counsel objected to only a single statement made by the expert at trial.
While the district court’s ruling on this statement is not clear, even if the district
court overruled the objection in error, Hunt has not shown that she was prejudiced
4
by this single statement. Because the report was cumulative of the trial testimony,
and because counsel participated in limiting the scope of such testimony, we
conclude that the district court’s error in admitting the written report was not
prejudicial.
AFFIRMED.
5
FILED
Hunt v. City of Portland, 11-35600 OCT 24 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SILVERMAN, Circuit Judge, concurring in part and dissenting in part:
The majority holds that Dr. Klecan’s report was inadmissible hearsay. I
agree. The majority also holds that the admission of the report, although
erroneous, did no harm That is where I respectfully disagree.
Hunt presented psychological testimony with respect to the damages she
claimed to have sustained as a result of the City’s alleged unlawful treatment of
her. Because Hunt claimed to have suffered anxiety and related psychological
trauma caused by the defendants’ actions, the defendants were well within their
rights to offer psychiatric evidence to rebut her claim. Indeed, defense expert
Eugene Klecan, M.D., a psychiatrist, opined that Hunt did not suffer “any
mental/emotional disorder acquired from her employment at the Portland Police.”
So far so good.
But Dr Klecan went much further. In his 24-page report, Dr. Klecan opined
in writing and in excruciating detail about Hunt’s character and her credibility,
including her inability to accurately perceive events. Dr. Klecan wrote that due to
-2-
what he characterized as Hunt’s “rigid, compulsive perfectionism” and “paranoid
personality disorder,” she is incapable of self-appraisal and learning from others.
She prefers to “focus with angry, self-righteous intensity upon the misdeeds of
others as she perceives them, in contrast to her own perfections of thoughts and
conduct as she perceives it.” People like her are given to “extreme suspiciousness”
and “hysterical overreacting.” Dr. Klecan even pointed out what he deemed to be
an inconsistency in Hunt’s account to him of how she came to leave the police
department.
All of this was objected-to inadmissible hearsay, as the majority
acknowledges. It was also inadmissible character evidence to which Hunt also
objected on relevancy grounds. Although Dr. Klecan’s opinions should have been
confined to whether she suffered psychological harm as a result of her
employment, Dr. Klecan effectively opined that Hunt failed to succeed as a police
officer – not because of any shortcomings of the police department – but due to her
own personality disorders. And what’s more, she can’t even accurately perceive
what went wrong. Given that Hunt’s credibility was a key issue, I fail to see how
this highly prejudicial and irrelevant hearsay, which the majority agrees was
wholly inadmissible, can been deemed harmless. To make matters worse, this
-3-
detailed written report was received into evidence as an exhibit and allowed to go
into the jury room, where it could be poured over word-for-word during the
deliberations, further magnifying its significance.
It is no answer to say that the report had been partially redacted. In the first
place, none of the report should have come in, as the majority acknowledges. Hunt
had made a timely, well-taken objection to the report in its entirety. Secondly, as
recounted only briefly above, very damaging information survived the redaction.
Finally, although Hunt’s lawyer was allowed to be heard regarding the redactions,
he did not in any way, shape, or form stipulate that the redacted report could come
in. To the contrary, Hunt’s lawyer, having been dealt lemons by the district judge,
attempted to make lemonade as best he could.
I agree with the majority that the district court correctly granted summary
judgment in favor of the defendants on the First Amendment issue. However,
because Dr. Klecan’s report was both inadmissible and extremely prejudicial, I
would reverse and remand for a new trial.