                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


YVON WAGNER, as the personal               No. 10-15501
representative of the Estate of Eric
Vogel,                                       D.C. No.
                   Plaintiff-Appellant,   2:07-cv-00819-
                                               EHC
                  v.

COUNTY OF MARICOPA , a political           ORDER AND
subdivision of the State of Arizona;        AMENDED
JOSEPH M. ARPAIO , husband;                  OPINION
UNKNOWN ARPAIO , Named as Jane
Doe Arpaio - wife,
               Defendants-Appellees.


      Appeal from the United States District Court
               for the District of Arizona
     Earl H. Carroll, Senior District Judge, Presiding

                 Argued and Submitted
       April 15, 2011—San Francisco, California

                 Filed March 7, 2012
              Amended November 16, 2012
2                 WAGNER V . MARICOPA COUNTY

        Before: John T. Noonan and N. Randy Smith, Circuit
         Judges, and Frederic Block, Senior District Judge.*

                              Order;
                    Opinion by Judge Noonan;
                   Dissent by Judge N.R. Smith


                           SUMMARY**


    The panel withdrew its prior opinion and in a newly filed
opinion reversed the district court’s judgment, entered
following a jury trial, and remanded in an action brought by
the Estate of Eric Vogel asserting that jail officials were
partially responsible for Vogel’s death from acute cardiac
arrhythmia following his release from jail.

    The Estate alleged that County of Maricopa jail officers
subjected Vogel, who suffered from a mental illness, to an
unreasonable search and seizure while he was a pretrial
detainee. Prior to transferring Vogel into the jail’s
psychiatric unit, defendants subjected him to a “dress out,”
during which they forced him on the ground, stripped him of
all his clothes, and changed him into the jail outfit, which
included pink underwear. The panel held that the district
court erred by limiting the testimony of Vogel’s sister at trial
under the hearsay rule because her statements were offered to


    *
    T he Honorable Frederic Block, Senior District Judge for the U.S.
District Court for Eastern New York, Brooklyn, sitting by designation.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              WAGNER V . MARICOPA COUNTY                      3

establish Vogel’s state of mind. The panel further held that
the district court erred by excluding references to the pink
underwear, and that, unexplained and undefended, the dress-
out in pink appeared to be punishment without legal
justification. The panel held that it appeared that this due
process question was still open for exploration at trial on
remand. Alternatively, the panel held that plaintiff may
prevail on the narrower issue of whether defendants were
deliberately indifferent to Vogel’s serious medical needs.
Finally, the panel held that the district court should have
permitted Vogel’s expert to offer the opinion that the stress of
the dress-out incident could have exacerbated Vogel’s mental
illness.

    Dissenting, Judge N. Smith stated that the majority failed
to correctly construe the hearsay rule and failed to give the
proper deference to the district court’s other evidentiary
rulings.


                         COUNSEL

John M. Curtain, Phoenix, Arizona, for plaintiff-appellant.

Eileen D. Gilbride, Phoenix, Arizona, for defendants-
appellees.
4             WAGNER V . MARICOPA COUNTY

                          ORDER

    The opinion and dissent filed on March 7, 2012 are
hereby WITHDRAWN.

    The majority of the panel votes to deny the petition for
rehearing. Judge N.R. Smith votes to grant the petition for
rehearing and petition for rehearing en banc. Judge Noonan
and Judge Block recommend denying the petition for
rehearing en banc.

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

    The petition for rehearing is DENIED and the petition for
rehearing en banc is DENIED.


                         OPINION

NOONAN, Circuit Judge:

    The central figure in this case, Eric Vogel, suffered from
mental illness. Our system of laws is administered by
rational human beings. It has always been a challenge to the
legal system to interact with the irrational.

    Yvon Wagner, as the personal representative of the estate
of her brother, Eric Vogel, appeals the judgment of the
district court in favor of the defendants, County of Maricopa
and Joseph Arpaio. We reverse the judgment and remand for
a new trial.
              WAGNER V . MARICOPA COUNTY                      5

                           FACTS

    Eric Vogel was born on December 21, 1964. By the age
of six, he was showing signs of potential illness. His parents
withdrew him from school when he was in the second grade,
and he was thereafter home-schooled until he graduated from
high school. He attended a community college for two
semesters and part of a semester at Arizona State University.
Thereafter, he simply lived at home.

     Living at home, without further formal education, Vogel
had no gainful employment and lived a remarkably restricted
life. The windows of his home itself were covered with
blankets and tape so that no one could see in. After his
father’s death or departure, he lived alone with his mother.
He left the home no more than two or three times to attend
the funerals of relatives. In October 2001, when Vogel was
36, his sister, Yvon Wagner, visited the home and found him
to be delusional, imagining that a snake was around his neck.

    On the morning of November 12, 2001, for no apparent
reason, Vogel left his home. Police responded to a report of
a burglar in the neighborhood and spotted Vogel as a possible
suspect. The first officer on the scene struggled to get control
of him while Vogel shouted, “Kill me.” When a second
officer arrived, Vogel stated that he, Vogel, must see the
president. The police said they would accommodate him. He
calmed down and they drove him to the Phoenix jail.

    In Arizona, common jails are kept by the sheriff of the
county. Ariz. Rev. Stat. § 31-101. Joseph Arpaio, as the
sheriff of Maricopa County, kept the jail to which Vogel was
brought.
6             WAGNER V . MARICOPA COUNTY

    Vogel was put under arrest for assaulting a police officer.
He completed a medical questionnaire, indicating that he had
high blood pressure but no other health problems. A
classification counselor interviewed him and placed a
psychiatric hold on him. A psychological counselor
examined him and concluded that he needed psychiatric care.

    He was put in an isolation cell with a huge window
opening the cell to the view of the jailers and to inmates. The
next morning, November 13, Vogel was assessed by a
psychological counselor as disoriented, paranoid, and
psychotic. He told her that he was at the World Trade Center
getting messages from satellites. She obtained an order for
his transfer to the inpatient psychiatric unit at the jail.

    That afternoon, Vogel was informed that he must “dress-
out.” In the argot of the jail, “to dress-out” was to change
from one’s civilian clothes to prison garb approved by Sheriff
Arpaio. The prison outfit included pink underwear. Vogel
declined to change.

    The “dress-out” prison officer summoned assistance –
four other officers, each to hold an arm or a leg while Vogel’s
clothes were changed. He was placed on the ground, stripped
of all his clothes, and forced into the jail ensemble including
the pink underwear. As the process went on, he shouted that
he was being raped. The officers were aware that he was
being transferred to the Psychiatric Unit. At the end of the
“dress-out” Vogel was wheeled there in “a restraint chair.”

    Vogel received treatment for a week and was then bailed
out by his mother. On December 6, 2001, he was in his
mother’s car when she had a minor traffic accident. The
police were summoned. Before they arrived, however, Vogel
              WAGNER V . MARICOPA COUNTY                     7

left the scene and attempted to walk four or five miles to his
home. He died the next day. The cause, according to the
Maricopa County Medical Examiner, was acute cardiac
arrhythmia.

                     PROCEEDINGS

    On December 6, 2002, Vogel’s mother as representative
of his estate began this action in Arizona Superior Court. It
was removed by the defendants to the federal district court,
which eventually returned the case to the state court. The
plaintiff amended to assert a claim against the defendants for
violation of 42 U.S.C. § 1983 by subjecting Vogel to an
unreasonable search and seizure, denying due process and the
equal protection of the laws, and acting with deliberate
indifference to his serious medical needs. A claim was also
asserted under the Americans with Disability Act, 42 U.S.C.
§ 12131, et seq., and the Rehabilitation Act of 1973,
29 U.S.C. § 794, as well as several claims under Arizona law.
The case was transferred back to the federal district court.

    In limine, the district court ruled that Vogel’s mother and
sister could not testify to what he told them about events at
the jail. The court also ruled that counsel could not refer to
“pink underwear” unless he could show that the record
contained “credible evidence” that Vogel was aware of the
color of the underwear. The court also precluded the
testimony of the plaintiff’s expert Dr. Spitz that Vogel’s
death was in part caused by the “dress-out,” thereby
preventing the issue of liability for the death from reaching
the jury. The court also limited the testimony of Dr. Esplin.

   Before trial began, Vogel’s mother died and his sister
Yvon Wagner replaced her as the representative of the estate.
8             WAGNER V . MARICOPA COUNTY

   At the close of the trial, the court denied plaintiff’s
counsel the opportunity to make a rebuttal.

   The jury returned a verdict for the defendants on each
count. This appeal followed.

                       DISCUSSION

    We review evidentiary rulings for abuse of discretion and
reverse if the exercise of discretion is both erroneous and
prejudicial. As Judge Smith points out, it is not entirely clear
whether construction of a hearsay rule is a matter of
discretion or a legal issue subject to de novo review.
Compare United States v. Stinson, 647 F.3d 1196, 1210-11
(9th Cir. 2011), with United States v. Ortega, 203 F.3d 675,
682 (9th Cir. 2000). We need not resolve the ambiguity here
because our conclusions would be the same under either
standard. We begin with the ruling limiting the testimony of
Yvon Wagner.

   Exclusion of Wagner’s testimony.            Wagner in her
deposition stated:

          He [her brother] felt he was being raped.
       He felt one of the officers attempted to put his
       penis in his mouth and that he had to keep his
       mouth so tight that he bruised his outer lips to
       avoid being accosted that way.

           He was sure they were going to rape him.
       He hollered to people. He was sure that all
       the inmates heard him saying who he was and
       that he was being raped and please help him.
              WAGNER V . MARICOPA COUNTY                      9

       And they were, you know, have [sic] a party
       at his expense. . . .

           He believed he had been raped. He
       believed somebody took their penis out of
       their pants and attempted to insert it in his
       mouth. And that’s as close to – my brother
       was a virgin. He – 36 years old, never
       touched another woman. This was very, I’m
       sure, frightening for him.

    In response to the motion in limine, Wagner made the
same argument she makes now. She argued that her
statements were

       not being offered to prove the details of the
       incident at the jail. Her testimony is not to
       prove an actual rape, but instead to show her
       brother’s state of mind following his
       incarceration. Her testimony establish[es] the
       impact that the event had on Eric. Yvon can
       testify as to the statements he made, his tone
       of voice, and his state of mind in making
       them.

      Federal Rule of Evidence 803(3) excepts from the
general exclusion of hearsay “statement[s] of the declarant’s
then-existing state of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such as mental
feeling, pain, or bodily health), but not including a statement
of memory or belief to prove the fact remembered or
believed[.]” The “declarant” is the person who made the out-
of-court statement. See Fed. R. Evid. 801(b).
10           WAGNER V . MARICOPA COUNTY

    Indisputably, Wagner could have testified at trial about
the impact the jail incident had on Vogel, how his mood was
following the incident, how disturbed he seemed, and even
what he thought happened to him during the incident, all
without putting inadmissible hearsay before the jury. None
of this testimony would have been put forth in order to
establish the truth of what he had said. Wagner proposed to
testify about how extremely delusional Vogel was following
the incident, and more importantly, the emotional impact the
incident had on him, including how humiliated he now felt by
the pink underwear. She was not asserting the truth of
anything that Vogel said had happened to him in jail.

    Her testimony was admissible not to prove “the fact
remembered or believed” but the “mental feeling” of Vogel.
As our dissenting colleague points out, the limiting language
of Rule 803(3) bars “‘statements as to why [the declarant]
held the particular state of mind, or what he might have
believed that would have induced the state of mind.’” United
States v. Emmert, 829 F.2d 805, 810 (9th Cir. 1987) (quoting
United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980)).
The bar applies only when the statements are offered to prove
the truth of the fact underlying the memory or belief. In
Emmert, for example, the defendant sought to introduce his
out-of-court statement that “he was scared because of the
threats made by the agents.” 829 F.2d at 810.

    Here, Vogel’s statements to his sister were offered to
establish his state of mind, not that he was raped or that he
went through the dress-out procedure. The statements were
offered to show his state of mind at the time of the
conversation, thus satisfying any contemporaneity
requirement. See United States v. Ponticelli, 622 F.2d 985,
991 (9th Cir. 1980), overruled on other grounds by United
              WAGNER V . MARICOPA COUNTY                    11

States v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en
banc). That Vogel was subjected to the dress-out was
established by the testimony of the defendants’ employees.
The jury could infer the connection between the dress-out and
Vogel’s mental state. Exclusion of this evidence was
erroneous.

    The defense argument that Wagner lacked personal
knowledge is mistaken. She had personal knowledge of how
Vogel had been impacted by the incident. She testified as a
percipient of what she had observed.

    The court curtailed Yvon Wagner’s testimony further by
not permitting her to testify to Vogel’s conversation with her
where he gave his sense of humiliation at being forced to
wear pink underwear or his sense of having been subjected to
a rape. The court banned any testimony mentioning “rape”
or “gang rape” unless counsel showed that the terms were not
“unduly prejudicial.” As already noted, the court excluded
reference to the color of the clothes put on Vogel unless there
was credible evidence that “Vogel was aware of the color of
the jail-issued underwear.”

    The rulings as to “rape” and “gang rape” misconceived
any testimony Wagner would have offered. She would have
used the words to show her brother’s present state of mind,
not his past experience.

    As to testimony of Vogel’s perception of the color,
Wagner’s testimony was to the current state of her brother’s
mind when he spoke to her. His mind was focused on the
implications of being dressed in pink. That he had been
dressed in pink was not a delusion. It was a fact, essential to
his experience and to the Estate’s deliberate indifference and
12            WAGNER V . MARICOPA COUNTY

due process claims. The jury was asked to evaluate whether
the jail’s measures were taken in furtherance of a legitimate
goal or whether they were, instead, punitive. The exclusion
of any mention of “pink underwear” or “rape” delivered a
second blow to the plaintiff’s case.

     That Vogel was delusional does not mean that he was
incapable of seeing. If you pricked him, he bled. As his eyes
saw the pink, his mind made the association of the color. So
at least a jury could infer from the impact of the dress-out on
Vogel, an impact apparent from his conversation with his
sister.

     Exclusion of references to the color pink. When a color
of such symbolic significance is selected for jail underwear,
it is difficult to believe that the choice of color was random.
The County offers no penological reason, indeed no
explanation whatsoever for its jail’s odd choice. Given the
cultural context, it is a fair inference that the color is chosen
to symbolize a loss of masculine identity and power, to shame
and stigmatize the male prisoners as feminine.

    Unpleasant physical measures – e.g., a strip search – may
be necessary to secure the safety of an institution even though
they impinge on the dignity of innocent inmates. Bull v. City
and County of San Francisco, 595 F.3d 964 (9th Cir. 2010)
(en banc). As the Supreme Court has explained:

        [I]f a particular condition or restriction of
        pretrial detention is reasonably related to a
        legitimate governmental objective, it does not,
        without more, amount to “punishment.”
        Conversely, if a restriction or condition is not
        reasonably related to a legitimate goal--if it is
              WAGNER V . MARICOPA COUNTY                      13

        arbitrary or purposeless--a court permissibly
        may infer that the purpose of the
        governmental action is punishment that may
        not constitutionally be inflicted upon
        detainees qua detainees.

Bell v. Wolfish, 441 U.S. 520, 539 (1979) (citations omitted).
Unexplained and undefended, the dress-out in pink appears to
be punishment without legal justification.

    It appears to us that this due process question is still open
for exploration at trial on remand. Alternatively, the plaintiff
may prevail on the narrower proposition that for the jail to
apply this procedure automatically to a man its own staff had
identified as in need of psychiatric treatment was in deliberate
indifference to his serious medical needs. Because of the
evidentiary rulings of the trial court, neither issue was
properly presented to the jury.

    Medical experts. Wagner presented Daniel Spitz, the
chief medical examiner of Macomb County, Michigan, a
county embracing southern Detroit. In his deposition Spitz
had stated that he had conducted thousands of autopsies; that
he had examined three to five cases where schizophrenia in
relation to cardiac arrhythmia was the cause of death; and that
there was forensic and psychiatric literature on the connection
between schizophrenia and cardiac arrhythmia. He gave the
opinion that the sudden and unexpected death of Vogel was
due to cardiac arrhythmia intensified by an increase in
schizophrenia and that that increase in schizophrenia was
“likely” due to Vogel’s recollection of his treatment at the jail
and his fear of returning to it.
14            WAGNER V . MARICOPA COUNTY

   The district court held that Dr. Spitz failed to meet the
qualifications for an expert set by Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). His testimony
was excluded entirely.

    The defense does not deny the foundation of Spitz’s
opinion. Its Reply Brief states: “No one disputes the general
proposition that persons with severe schizophrenia have an
increased incidence of the kind of arrhythmia that killed
Vogel. Everyone agrees that Vogel’s underlying mental
illness was the factor that induced the cardiac arrhythmia.”
The defendants deny that anyone could determine what
caused the particular increase in the arrhythmia that killed
Vogel.

    The purpose of expert testimony is to “assist the trier of
fact to understand the evidence or to determine a fact in
issue” by providing opinions on “scientific, technical, or other
specialized knowledge[.]” Fed. R. Evid. 702 (2008). To
guard against the risk that jurors will accept an expert’s
testimony simply because he or she is an expert, a district
court must ensure that all expert testimony is “not only
relevant, but reliable.” Daubert, 509 U.S. at 589 (1993); see
also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147
(1999) (holding that Daubert applies to “all expert
testimony”). The test for reliability is flexible and depends
on the discipline involved. See Kumho, 526 U.S. at 150.
“[T]he law grants a district court the same broad latitude
when it decides how to determine reliability as it enjoys in
respect to its ultimate reliability determination.” Id. at 142.

    The district court’s decision to exclude Dr. Spitz’s
opinion as to a likelihood that the dress-out procedure
actually caused Vogel’s death was a reasonable application of
              WAGNER V . MARICOPA COUNTY                    15

Daubert. This opinion by Dr. Spitz was not supported by the
typical Daubert factors—testing, peer review and general
acceptance. Dr. Spitz did not explain, for example, how the
generally accepted facts, – (1) that the incidence of cardiac
arrhythmia is disproportionately high among schizophrenics
and (2) that stress can render the condition fatal – allowed
him to determine the specific event that triggered Vogel’s
death. Nor did he explain how having seen four or five cases
of fatal cardiac arrhythmia in schizophrenics helped him
reach his conclusion.

    Generally accepted facts and experience might lead a
medical expert to reliably opine (as Dr. Ehrlich did) that the
dress-out procedure could have been a triggering stressor.
Although Dr. Spitz’s and Dr. Ehrlich’s opinions are similar
in that respect, Dr. Spitz went farther and offered an opinion
as to an actual cause. It is this leap that dispositively
distinguishes the two experts.

    However, the district court should not have excluded Dr.
Spitz’s testimony in its entirety. Dr. Spitz should have been
permitted to offer the opinion that the stress of the dress-out
incident could have exacerbated Vogel’s mental illness.
From this, the jury could infer that the dress-out was a cause
of the heart attack. It was for the jury, not for the court as
gatekeeper, to determine whether or not the stress of the
incident was an actual cause of Vogel’s heart attack.

    The plaintiff also offered the testimony of Phillip Esplin,
a Phoenix psychologist. Esplin had originally been proposed
as a witness by the County and had prepared a report as
required by Fed. R. Civ. P. 26(a)(2). Taking his deposition,
Wagner found his testimony favorable to her position and
16             WAGNER V . MARICOPA COUNTY

sought him as a witness at trial. The district court permitted
but significantly curtailed his testimony.

    In both of its rulings the district court pointed out the
dependence of the two proposed experts on Wagner’s
reported conversations with her brother. As the district court
excluded Wagner’s testimony as to the conversations, so it
found that the experts could not base their opinions upon
Wagner’s accounts. As we have already indicated, the
exclusion of testimony showing Vogel’s state of mind was
both error and prejudicial to the plaintiff. It was equally error
and prejudicial to exclude the two experts’ opinions based on
that testimony.

    Argument to the Jury. The district court abruptly
eliminated the plaintiff’s opportunity for rebuttal argument.
No good reason was given for this disappointment of the
plaintiff’s legitimate expectation. If the court intends to
restrict rebuttal, the litigants should be so advised prior to the
argument.

    Counsel for the county suggested that Vogel’s family had
not provided adequate care for Eric Vogel. The argument
was irrelevant and improper.

    For the reasons stated, the judgment of the district court
is REVERSED and the case is REMANDED for proceedings
in accordance with this opinion.


N.R. SMITH, Circuit Judge, dissenting:

   In its opinion, the majority fails to correctly construe the
hearsay rule and fails to give the proper deference to the
              WAGNER V . MARICOPA COUNTY                     17

district court’s other evidentiary rulings. I must therefore
dissent because:

    1. Assuming (but not deciding) that a de novo standard
of review applies when determining whether a statement is
hearsay, the majority fails to properly construe the hearsay
rule. Under the hearsay rule, statements asserting a
declarant’s beliefs are hearsay, if offered to prove the
declarant’s belief or offered for a purpose that requires the
declarant to believe the matters asserted are true. Therefore,
the district court did not err in concluding that Yvon
Wagner’s testimony was hearsay.

    2. The majority fails to apply the “substantially
deferential” abuse of discretion test, recently elucidated by
our en banc panel in United States v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009) (en banc), for the remaining evidentiary
issues appealed here. Though an appellate jurist may have
ruled differently on these issues, “we may not simply
substitute our view for that of the district court, but rather
must give the district court’s findings deference.” Id.

                               I.

                STANDARD OF REVIEW

     This circuit’s case law is not entirely clear regarding
whether we review de novo a district court’s decision that a
statement is or is not hearsay. Compare United States v.
Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011) (“We review a
district court’s evidentiary rulings for abuse of discretion.”),
and United States v. Tran, 568 F.3d 1156, 1162 (9th Cir.
2009) (applying an abuse of discretion standard in
determining whether a statement is hearsay under Rule 801),
18            WAGNER V . MARICOPA COUNTY

with Mahone v. Lehman, 347 F.3d 1170, 1173–74 (9th Cir.
2003) (“We review the district court’s construction of the
hearsay rule de novo . . . .” (quoting Orr v. Bank of Am., NT
& SA, 285 F.3d 764, 778 (9th Cir. 2002))), United States v.
Collicott, 92 F.3d 973, 978–82 (9th Cir. 1996) (holding that
the district court erred, because the statements at issue were
hearsay and not admissible under Rule 801(d)(1)(B), never
mentioning whether the district court abused its discretion,
but rather seems to have reviewed the hearsay determination
de novo), and United States v. Warren, 25 F.3d 890, 894–95
(9th Cir. 1994) (held that the statements at issue were
admissible under Rule 801(d)(2)(A) because they were not
hearsay, with no mention of an abuse of discretion).

    The Second Circuit and Sixth Circuit have held that a
district court’s determination whether a statement is hearsay
is reviewed de novo. United States. v. Ferguson, 653 F.3d
61, 86 (2d Cir. 2011); Biegas v. Quickway Carriers, Inc.,
573 F.3d 365, 378–381 (6th Cir. 2009). But see Trepel v.
Roadway Exp., Inc., 194 F.3d 708, 716–17 (6th Cir. 1999)
(“Therefore, in disregard of our heretofore well-settled
precedent that hearsay evidentiary rulings are reviewed de
novo, we shall review the district court’s ruling for an abuse
of discretion.” (citation omitted)).

    We review the district court’s remaining evidentiary
rulings for abuse of discretion. Gen. Elec. Co. v. Joiner,
522 U.S. 136, 141 (1997). We do not reverse evidentiary
rulings unless the rulings are “manifestly erroneous and
prejudicial.” Orr, 285 F.3d at 773. “This includes the
exclusion of evidence under a hearsay rule.” Stinson,
647 F.3d at 1210. We also review the district court’s
handling of closing arguments for an abuse of discretion.
                 WAGNER V . MARICOPA COUNTY                            19

United States v. Lazarenko, 564 F.3d 1026, 1043 (9th Cir.
2009).

     Our circuit employs a “significantly deferential” two-step
test to determine whether a district court abused its discretion.
Hinkson, 585 F.3d at 1262. The first step “is to determine de
novo whether the trial court identified the correct legal rule to
apply to the relief requested.” Id. If so, the second step “is
to determine whether the trial court’s application of the
correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’ or
(3) without ‘support in inferences that may be drawn from the
facts in the record.’” Id. (quoting Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 577 (1985)). “If any of
these three apply, only then are we able to have a ‘definite
and firm conviction’ that the district court reached a
conclusion that was a ‘mistake’ or was not among its
‘permissible’ options, and thus that it abused its discretion by
making a clearly erroneous finding of fact.” Id. In other
words, “we do not automatically reverse a district court’s
factual finding if we decide a ‘mistake has been committed.’”
 Id. at 1263.

                                   II.

                  WAGNER’S TESTIMONY

    The majority first concludes that the district court erred
by excluding testimony from Vogel’s sister, Yvon Wagner,
regarding statements made by Vogel (who was deceased
before trial).1 Wagner would have testified regarding Vogel’s


 1
   W agner would have testified that Vogel (1) said the detention officers
dressed him in “pink underwear, in pink slippers and, again, at his expense
they were accosting him” during the dress-out procedure; (2) believed he
20               WAGNER V . MARICOPA COUNTY

thoughts and beliefs during the dress-out procedure based on
statements Vogel purportedly made—after the fact—to
Wagner. The majority finds that the district court erred,
apparently as a matter of law, no matter whether the standard
of review is de novo or abuse of discretion. The majority
erroneously concludes that Wagner’s testimony was not
offered to prove what Vogel asserted.

A. Wagner’s testimony was hearsay evidence

    The Estate argues that Wagner’s testimony was not
hearsay, because it was not offered to prove the details of the
dress-out procedure (i.e., that Vogel was actually raped).
Instead, the Estate argues that Wagner’s testimony was
offered to show Vogel’s state of mind following the dress-out
procedure and the lasting impact the event had on Vogel
following his release. The majority asserts that Wagner “was
not asserting the truth of anything that Vogel said had
happened to him in jail.” Maj. Op. at 10. I disagree with
both. Wagner’s testimony was offered to prove the truth of
the matter asserted—i.e., that Vogel believed the events he
described happened. The district court did not incorrectly
construe or apply the hearsay rule.

   Hearsay “is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Fed. R.
Evid. 801(c). The majority agrees that, if Wagner’s


had been raped; (3) “felt one of the officers attempted to put his penis in
his mouth and that he had to keep his mouth so tight that he bruised his
outer lips to avoid being accosted that way,” and (4) believed the officers
used the pink underwear to put him in a vulnerable position before a
planned sex “party.”
               WAGNER V . MARICOPA COUNTY                      21

testimony—including Vogel’s statements that (1) he was
forcibly undressed by detention officers, (2) he was dressed
in pink underwear and slippers, (3) the officers “manhandled”
him on the floor of his jail cell, and (4) he called out to other
inmates for help—were offered for the truth of the matter
asserted, it would be hearsay. Even if this information were
consistent with other evidence in this case, it could not be
proven by Wagner using hearsay evidence.

    However, the Estate and the majority assert that Wagner’s
testimony is not offered to prove the “truth of anything that
Vogel said had happened to him in jail.” Maj. Op. at 10.
That assertion may be true, but it is not focused on Wagner’s
statements. For example, Wagner testified that Vogel (1)
“felt he was being raped,” (2) “felt one of the officers
attempted to put his penis in his mouth,” (3) “believed he was
being raped,” and (4) “believed the pink underwear was used
to put him in [a] vulnerable position with these officers.”
Wagner’s testimony is offered to prove the truth of what
Vogel asserted—i.e., that he believed what he described
occurred. A statement is hearsay if offered to prove the truth
of the matter asserted. Focusing on Wagner’s statements,
they are hearsay, because they were offered to show that
Vogel actually believed the facts asserted. 30B Michael H.
Graham, Federal Practice & Procedure § 7044 (interim ed.
2000) (explaining that second-hand statements of belief are
hearsay, but may be admissible under Rule 803(3)’s
exception to the hearsay rule). Further, the statements are
hearsay, because it must be proven that Vogel believed the
matters asserted were true for the Estate’s mental state
argument to succeed. Id. § 7006 (“If the declarant must
believe the matter asserted to be true for any inference to
logically flow, . . . the hearsay risks of sincerity and narration
are present. Such statements are thus properly classified as
22             WAGNER V . MARICOPA COUNTY

hearsay.”). The Estate never made an offer of proof to
demonstrate that the proffered testimony complied with the
hearsay rule. Therefore, the district court’s determination
(that Wagner’s testimony was hearsay) was not erroneous and
the district court did not misconstrue the hearsay rule.

B. Wagner’s testimony did not fall under Rule 803(3)’s
then-existing state of mind exception to the hearsay rule

    The Estate argues that, even if Wagner’s testimony were
hearsay, it was admissible as evidence under the state of mind
exception in Federal Rule of Evidence 803(3). The majority
agrees. However, the district court disagreed and, because
this is a discretionary decision, we must afford the district
court’s decision substantial deference. Here, the district
court’s determination that Wagner’s testimony regarding
Vogel’s post-release statements did not fall under Rule
803(3)’s state of mind exception was not illogical,
implausible, or without support in inferences that may be
drawn from the facts in the record. The statements (1) were
statements of memory or belief made at least one week after
the events at issue; and (2) were offered not simply to
demonstrate Vogel’s present mental condition but his past
mental condition (i.e., that he was agitated), and also to
explain why he was agitated (i.e., that he believed he was
being raped). Therefore, although we may have decided this
issue differently, the district court did not abuse its discretion.

    Rule 803(3) creates an exception to the hearsay rule for
“[a] statement of the declarant’s then existing state of mind,
emotion, sensation, or physical condition (such as intent,
plan, motive, design, mental feeling, pain, and bodily health),
but not including a statement of memory or belief to prove the
fact remembered or believed . . . .” Fed. R. Evid. 803(3)
              WAGNER V . MARICOPA COUNTY                   23

(2010) (emphasis added). Vogel’s statements do not meet
Rule 803(3)’s foundational requirements of
“contemporaneousness, [lack of] chance for reflection, and
relevance.” United States v. Ponticelli, 622 F.2d 985, 991
(9th Cir. 1980), overruled on other grounds by United States
v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc).
Vogel explained the dress out procedure to his family
following his release from jail, which was at least seven days
after the procedure took place. These were “statement[s] of
memory,” which are expressly prohibited under Rule 803(3).
The Rules of Evidence exclude statements of memory,
because “[t]he more time that elapses between the declaration
and the period about which the declarant is commenting, the
less reliable is his statement . . . . The state of mind
declaration also has probative value, because the declarant
presumably has no chance for reflection and therefore for
misrepresentation.” Ponticelli, 622 F.2d at 991. Vogel
conceivably could have misrepresented what happened at the
jail (or what he believed happened) to explain or justify his
unruly conduct with the officers. Thus, although detention
officers’ testimony about what Vogel said during the dress-
out procedure is admissible (given its contemporaneity),
Vogel’s statements a week or two after the fact do not
provide the same probative value contemplated by the
exception in Rule 803(3). See United States v. Miller, 874
F.2d 1255, 1265 (9th Cir. 1989) (holding that hearsay
statements made less than 24 hours after an event did not
meet the contemporaneity and lack of reflection requirements
under Rule 803(3)).

   Additionally, Wagner’s statements were offered to show
not only that Vogel was agitated during the dress-out
procedure, but also why he was agitated. Such use of
Wagner’s statements is not permitted under Rule 803(3), as
24            WAGNER V . MARICOPA COUNTY

interpreted by our circuit. We stated in United States v.
Emmert that “the state-of-mind exception does not permit the
witness to relate any of the declarant’s statements as to why
he held the particular state of mind, or what he might have
believed that would have induced the state of mind.”
829 F.2d 805, 810 (9th Cir. 1987) (emphasis added) (quoting
United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980));
see also id. (“[Rule 803(3)] . . . narrowly limit[s] admissible
statements to declarations of condition—‘I’m scared’—and
not belief—‘I’m scared because [someone] threatened me.’”
(emphasis altered) (internal quotation marks omitted)). We
reaffirmed the validity of Emmert in United States v.
Fontenot by holding that hearsay statements did not fall under
the exception in Rule 803(3), because the statements related
why the declarant held the particular state of mind. United
States v. Fontenot, 14 F.3d 1364, 1371 (9th Cir. 1994). The
Fifth Circuit and Tenth Circuit also do not allow statements
that identify why the declarant has the particular state of
mind. See, e.g., United States v. Lin, 960 F.2d 449, 452 (5th
Cir. 1992) (holding that “[e]vidence of . . . fear was
admitted,” but “[p]roperly excluded were the alleged reasons
for that fear” (citing Cohen, 631 F.2d at 1225)); United States
v. Ledford, 443 F.3d 702, 709–10 (10th Cir. 2005) (“The
phrase ‘because the defendant threatened me’ is expressly
outside the state-of-mind exception because the explanation
for the fear expresses a belief different from the state of mind
of being afraid.”).

    The majority contends that we made it clear in Emmert
“that the bar applies only when the statements are offered to
prove the truth of the facts underlying the memory or belief.”
Maj. Op. at 10. However, in Emmert and Fontenot, we did
not indicate that our decisions hinged on the declarant
offering the reasons for the belief in order to prove the events
              WAGNER V . MARICOPA COUNTY                     25

believed. Rather, our decisions identified the reason for the
exclusion to be that the “testimony would have fallen within
the ‘belief category and would not have been limited to [the
declarant’s] current state of mind.” Emmert, 829 F.2d at 810;
see also Fontenot, 14 F.3d at 1371 (noting that “the
statements would have demonstrated that [Fontenot] believed
his and Cathy Fontenot’s lives were in danger” (alterations in
original)).

    Here, Wagner intended to testify that Vogel was agitated,
because he believed he was being raped and the officers were
dressing him in pink underwear for a sex party. This
testimony was central to the Estate’s theory of causation that
Vogel’s traumatic experience in jail caused his fatal
arrhythmia several weeks later. For these reasons, and in
light of our case law, the district court’s application of Rule
803(3) to the facts of this case was not illogical, implausible,
or without support in inferences that may be drawn from the
facts in the record. The district court did not abuse its
discretion.

C. Wagner’s testimony lacked foundation

    The majority also determines that the district court abused
its discretion in concluding that Wagner lacked personal
knowledge about Vogel’s mental condition during the
jailhouse dress-out procedure. However, the majority again
fails to give any deference to the district court’s decision.
Federal Rule of Evidence 602 provides that a “witness may
not testify to a matter unless evidence is introduced sufficient
to support a finding that the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may,
but need not, consist of the witness’ own testimony.”
(emphasis added). The majority claims Wagner had adequate
26           WAGNER V . MARICOPA COUNTY

foundation, because she had personal knowledge of her
conversation with Vogel and perceived his emotions. The
majority claims Vogel’s statement’s went to establish his
state of mind at the time he spoke to his sister. Maj. Op. at
10. If Wagner’s testimony were only offered to prove
Vogel’s temperament during his conversation with Wagner,
the majority would be correct.

    However, Wagner intended to offer various opinions
regarding Vogel’s state of mind while in jail and why he
reacted the way he did during the dress-out procedure. For
example, Wagner, testified that (1) Vogel “believed he was
being raped,” (2) Vogel “believed the pink underwear was
used to put him in [a] vulnerable position,” (3) Vogel hid
under his bed to protect himself because he was “paranoid”
and “felt he was in extreme harm’s way,” and (4) “this was
very, I’m sure, frightening for him.” The Estate’s entire
theory of liability turns on the purportedly indelible trauma
Vogel endured during his stay at the county jail. Thus, there
is no doubt that Wagner offered this testimony to prove what
Vogel felt and believed while he was in jail—not how he felt
as he described the jailhouse incident a week later. To be
sure, the County objected to Wagner’s testimony, not because
Wagner failed to establish that she actually had a
conversation with Vogel, but because Wagner lacked
foundation to testify about the thoughts and beliefs of her
floridly psychotic brother during the jailhouse incident. For
these reasons, we cannot conclude that the district court
abused its discretion in excluding this testimony, in part,
because of lack of foundation. Its determination was not
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.
              WAGNER V . MARICOPA COUNTY                      27

                              III.

        EXCLUDING REFERENCES TO PINK
                UNDERWEAR

    The Estate failed to specifically and distinctly argue in its
opening brief that the district court erred in excluding
evidence related to pink underwear. Therefore, we should
consider such an argument waived, and we should not address
it. See Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998).
While the Estate mentions the issue in its statement of issues
and summary of the argument sections of its opening brief,
the Estate fails to discuss and argue the point in the body of
the arguments section in the opening brief. Such a deficiency
waives the issue. See Martinez-Serrano v. I.N.S., 94 F.3d
1256, 1259 (9th Cir. 1996) (“[A]n issue referred to in the
appellant’s statement of the case but not discussed in the body
of the opening brief is deemed waived.”).

    I fail to understand why the majority addresses the issue.
The sheriff’s use of pink underwear is a policy consideration,
with which we may disagree but should not review, especially
when the issue is not properly before us. Sadly however, the
majority’s consideration of the issue is consistent with its
failure to apply the appropriate standard of review (i.e., abuse
of discretion) to the evidentiary issues discussed in other
sections of this dissent.
28             WAGNER V . MARICOPA COUNTY

                               IV.

                  EXPERT TESTIMONY

A. The district court did not abuse its discretion by
excluding Dr. Daniel Spitz’s expert testimony

     Neither party disputed Dr. Spitz’s preliminary
conclusions that (1) Vogel’s death was caused by acute
cardiac arrhythmia, and (2) people with severe schizophrenia
have an increased chance of dying from cardiac arrhythmia.
The district court excluded Dr. Spitz’s testimony, because
there was no reliable scientific basis for his supplemental
conclusion that Vogel’s dress-out experience at the county
jail caused his cardiac arrhythmia three weeks later. The
majority concludes that the district court erred in excluding
Dr. Daniel Spitz’s testimony. I disagree.

    Under Daubert v. Merrell Dow Pharmaceuticals, Inc., a
court must determine whether an expert is “proposing to
testify to (1) scientific knowledge that (2) will assist the trier
of fact to understand or determine a fact in issue.” 509 U.S.
579, 592–93 (1993). This analysis “entails a preliminary
assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether
that reasoning or methodology properly can be applied to the
facts in issue.” Id. Among other things, a court should
consider (1) whether a theory or technique “can be (and has
been) tested,” (2) “whether the theory or technique has been
subjected to peer review and publication,” (3) “the known or
potential rate of error,” and (4) whether it is generally
accepted in the scientific community. Id. at 593–94. After
examining Dr. Spitz’s deposition testimony, the district court
determined that the scientific theories underlying his
                 WAGNER V . MARICOPA COUNTY                             29

proposed testimony did not satisfy the standards in Daubert.
The Estate failed to demonstrate that Dr. Spitz’s three-week-
later causation theory (1) could be or had been tested, (2) had
been subjected to peer review or publication, or (3) was
generally accepted in the scientific community. It was also
unclear what evidence Dr. Spitz considered when forming his
opinion and whether he considered all of the relevant
evidence in the case.

    In addition to the district court’s findings above, Dr. Spitz
admitted that he (1) did not interview any witnesses, (2) did
not consult any relevant treatises or literature, and (3) only
had experience investigating the deaths of possibly four or
five schizophrenics where the cause of death was acute
arrhythmia. Dr. Spitz also based his opinion, in part, on
statements from Vogel’s relatives (which the court deemed
unreliable and inadmissible) and what he termed “common
sense.” Further, although Dr. Spitz testified that the dress-out
procedure played a role in Vogel’s death, he could not
explain why other events—such as the car accident
immediately preceding Vogel’s death—had not caused acute
arrhythmia earlier, explaining that “[w]hy [Vogel] died when
he did is something probably nobody knows.”2


 2
    Other experts concurred in this assessment. For example, when asked
about the possibility that the dress-out incident had some influence on the
arrhythmia, Dr. Ira Ehrlich responded, “Anything is possible. Of course
it’s possible.” W hen asked again whether Vogel may have been obsessing
about the jail incident when he died, Dr. Ehrlich explained, “He could
have. I would certainly not ever dismiss that as a possibility. I just don’t
see how anybody can point at that one incident and say that’s what did it;
in all likelihood, medical certainty, that’s what did it. I think that’s
impossible.” Dr. Ehrlich also expressed serious doubts about anyone’s
“ability to say, with any degree of certainty, what was going on in Mr.
Vogel’s brain at the time that he developed his fatal arrythmia[.] . . . Mr.
30              WAGNER V . MARICOPA COUNTY

    Plainly stated, Dr. Spitz’s general qualifications as a
medical examiner do not provide him license to speculate
regarding the environmental—as distinct from the
medical—factors that caused Vogel’s death. Dr. Spitz
provided no scientific theory or method that could
substantiate his purportedly “common sense” idea that the
jailhouse dress-out procedure three weeks earlier was the
cause of Vogel’s heart arrhythmia. Though Dr. Spitz could
testify to the medical causes of Vogel’s death, his speculation
as to which of the many environmental stressors in Vogel’s
life “likely” or “probably” caused death did not meet
Daubert’s threshold standard for scientifically valid
reasoning or methodology. Given the many glaring
deficiencies in Dr. Spitz’s proposed testimony, the district
court’s ruling cannot be an abuse of discretion.

B. The district court did not abuse its discretion by
excluding portions of Dr. Phillip Esplin’s expert testimony

    The majority concludes that the district court abused its
discretion in excluding certain portions of the expert
testimony of Dr. Phillip Esplin. The district court determined
that Dr. Esplin’s testimony was (1) “[un]supported by
evidence;” (2) wholly “uncredible,” because, by Dr. Esplin’s
own admission, no one can know what a floridly psychotic
person was thinking; (3) lacking foundation; (4) “more
prejudicial than probative;” and (5) going to “puzzle” the
jury. Given these deficiencies, I cannot say the district
court’s ruling was illogical, implausible, or without support
in inferences that may be drawn from the facts in the record.



Vogel’s brain is a salad bowl of stuff that has been tossed— unkindly
perhaps, but— tossed so that there is no organization there whatsoever.”
              WAGNER V . MARICOPA COUNTY                    31

     The majority’s cursory treatment of the district court’s
ruling on Dr. Esplin’s testimony never explains how the
district court applied an erroneous legal standard or relied on
a clearly erroneous finding of fact. No reliable evidence in
the record—apart from Wagner’s testimony—supported Dr.
Esplin’s claim that Vogel thought the pink coloring of the
jail-issued underwear was significant. Dr. Esplin himself
admitted that no one could know or understand what was
going on inside the mind of a floridly psychotic
schizophrenic, suggesting that, even with Wagner’s
testimony, his testimony on causation would be purely
speculative. Given these foundation and methodological
deficiencies, the district court acted within its discretion to
exclude this testimony under Federal Rules of Evidence 702
and 703.

                              V.

                 CLOSING ARGUMENT

    Lastly, the majority hastily concluded that the district
court abused its discretion by denying the Estate a rebuttal
closing argument at trial. However, the majority never
explains what law gives a plaintiff in the District of Arizona
an inalienable right to rebuttal argument, much less how the
district court abused its discretion in shaping closing
arguments under District of Arizona Local Rule 39.1(d).
Rule 39.1(d) guarantees a “right to close” to the party bearing
the burden of proof, but that rule has never been defined to
provide the right to speak last. The district court permitted
the Estate to make a “thorough,” 60-minute closing argument.
Following a short recess, the court explained to counsel that
“[t]he closing is going to end with [the County]. There isn’t
going to be any rebuttal. I just did a little research, it’s
32             WAGNER V . MARICOPA COUNTY

discretionary. [The Estate] had a thorough, complete effort
at it, and [the County] is entitled to that as well. But we’re
not going to have a rebuttal.” The court also noted, “I don’t
think there was anything that [the Estate] could have touched
on that [the Estate] didn’t explore, several times.”

    It is well established that a “trial court has broad
discretion in controlling closing arguments.” United States
v. Spillone, 879 F.2d 514, 518 (9th Cir. 1989); accord
Fernandez v. Corporacion Insula De Seguros, 79 F.3d 207,
209–10 (1st Cir. 1996) (“The decision to permit rebuttal [in
a civil action] is a procedural matter which rests within the
sound discretion of the trial judge and rarely (if ever)
provides fertile ground for appeal.” (internal citation
omitted)). Because the Estate closed with a 60-minute
argument pursuant to Rule 39.1(d), the district court did not
abuse its “broad” discretion in denying the Estate a rebuttal
closing argument.

     I would therefore affirm.
