Lindsay Hunt v. City of Portland

ORDER

The prior memorandum disposition filed on October 24, 2012 is hereby amended concurrent with the filing of the amended disposition today. The partial dissent was not amended.

With these amendments, the panel has unanimously voted to deny the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. RApp. P. 35.

The petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc may be filed in response to the amended disposition.

AMENDED MEMORANDUM

Plaintiff-Appellant Lindsay K. Hunt appeals the district court’s order granting the City Defendants motion for summary judgment on Hunt’s First 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…

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 what he characterized as Hunt’s “rigid, compulsive perfectionism” and “paranoid personality disorder,” she is incapable of self-appraisal and…

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

2 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

(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).

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