Magno J. Ortega v. Dennis M. O'connor, Director Napa State Hospital Dorothy Owen, and Richard Friday
Docket: 93-15813
Court: Court of Appeals for the Ninth Circuit; March 24, 1995; Federal Appellate Court
The case involves Dr. Magno J. Ortega, who filed a lawsuit against Dr. Dennis M. O'Connor, the Director of Napa State Hospital, and other employees, claiming a Fourth Amendment violation due to an office search. Initially, the district court ruled against Ortega, but the Ninth Circuit reversed this decision. The Supreme Court then remanded the case for further evaluation of the search's justification and scope. During the trial, the district court excluded Ortega's witnesses as a sanction for allegedly failing to serve a witness list to opposing counsel, which led to Ortega's appeal. The court had issued a pretrial order requiring witness lists, and although Ortega filed his list, the district court found no evidence of service to opposing counsel. However, the record shows a declaration of service by mail confirming that Ortega had sent the witness list to opposing counsel, which the district court overlooked. The Ninth Circuit emphasized that the trial court has discretion to exclude witnesses for noncompliance, but in this instance, no actual noncompliance was demonstrated.
Dr. Ortega's compliance with service requirements is upheld despite opposing counsel not receiving the witness list, as Local Rule 229-2 mandates service according to Rule 5 of the Federal Rules of Civil Procedure, which allows for service by mail. Consequently, Dr. Ortega's declaration of service is deemed sufficient, and sanctions against him for non-compliance are deemed erroneous. However, mere judicial error does not warrant a reversal unless it is shown to have likely affected the verdict. In this case, the prohibition of over twenty witnesses from testifying and restrictions on Dr. Ortega's case presentation significantly prejudiced his position, leading to a decision to reverse and remand for a new trial.
Although remand is necessary, Dr. Ortega's argument for reinstating Asher Rubin as a defendant is rejected. Rubin was dismissed in the original lawsuit on grounds of prosecutorial immunity, and the appellate court's reversal only addresses the Fourth Amendment issues specifically discussed, leaving Rubin's dismissal intact. Dr. Ortega is barred from challenging this dismissal now, having failed to do so in earlier appeals. The district court's dismissal of Rubin is affirmed.
The overall judgment is AFFIRMED in part, REVERSED in part, and REMANDED, with each party to bear its own costs. Notably, Dr. Ortega did not file his witness list by the required deadline, although the defense also missed its deadline, which mitigates the grounds for exclusion based on this delay.
The Ninth Circuit has established two distinct tests for assessing prejudice in civil cases. The Kisor standard requires the reviewing court to determine whether the lower court's error likely affected the verdict, while the Haddad standard mandates that prejudice is presumed unless the reviewing court believes the lower court's outcome was untainted by error. These differing standards create conflicting presumptions in close cases where the impact of an evidentiary error on the jury's verdict is uncertain. In this instance, the exclusion of Dr. Ortega's witnesses is deemed prejudicial under both tests. Additionally, Dr. Ortega raises a claim of judicial bias, which necessitates evidence showing that the judge's conduct indicated a predisposition to treat him unfairly based on external sources. However, Dr. Ortega fails to provide such evidence.
