Becerra v. Schultz
| Decision Date | 14 July 2020 |
| Docket Number | Case No. 19-CV-118-SWS |
| Citation | 499 F.Supp.3d 1142 |
| Parties | Gerardo BECERRA, Plaintiff, v. Vanessa SCHULTZ, Defendant. |
| Court | U.S. District Court — District of Wyoming |
Alexander F. Freeburg, Freeburg Law, Jackson, WY, for Plaintiff.
Daniel A. Jacobs, Pro Hac Vice, Michael T Lowe, Pro Hac Vice, Bruno Colin & Lowe PC, Denver, CO, Gay Vanderpoel Woodhouse, Mary Katherine Brown, Woodhouse Roden Nethercott LLC, Cheyenne, WY, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STRIKE EXPERT TESTIMONY OF DAN MONTGOMERY
This matter comes before the Court on Defendant Vanessa Schultz's Motion to Strike Expert Testimony of Dan Montgomery (ECF No. 32). Defendant challenges certain opinions rendered by Plaintiff's expert witness Dan Montgomery in his expert report, arguing they are inadmissible and should be excluded at trial. The Court, having considered the parties' arguments, the record herein, and being otherwise fully advised, finds Defendant's motion should be GRANTED IN PART and DENIED IN PART.
This case arises from an allegedly improper arrest of Plaintiff Gerardo Becerra. While traveling through Jackson, Wyoming on vacation, Defendant Vanessa Schultz, a Colorado police officer, incorrectly believed Plaintiff to have been fleeing a burglary and detained him at gunpoint. Following these events, Plaintiff filed suit against Officer Schultz, asserting claims of false arrest and excessive force under the Fourth Amendment pursuant to 42 U.S.C. § 1983, as well as state law claims of assault, battery, false imprisonment, and outrage. The precise facts of this case are set forth in detail in the Court's Order on Summary Judgment and for Certification , filed herewith, and therefore will not be restated here.
Plaintiff has retained Dan Montgomery to testify as an expert witness on police practices and procedures in this matter. Mr. Montgomery prepared an expert report, which was submitted to the Court in accordance with Federal Rule of Civil Procedure 26 on March 23, 2020 (see ECF No. 18). In this report, Mr. Montgomery renders four discrete opinions. In particular, Mr. Montgomery concludes Officer Schultz's actions "were not prudent and in concert with established police practices" with regard to: (1) "seizing Mr. Becerra at gunpoint," (2) "knowingly placing into service and using a firearm that she had never qualified with," (3) her "pre-action situation assessment," and (4) her overall "actions" which failed to "reflect good judgment [and] exhibit attentiveness, care and thoroughness in the conduct of her assignment and responsibilities." (Montgomery Report at 5–8, ECF No. 18-1.)
Defendant seeks to exclude Mr. Montgomery's opinions and testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), arguing his opinions are irrelevant, unreliable, confusing to the trier of fact, and will usurp the province of the jury. (See Def.'s Mot. to Strike, ECF No. 32.) Plaintiff in turn argues Mr. Montgomery based his opinions on sufficient facts and data, and Defendant improperly attempts to attack the weight of Mr. Montgomery's opinions, not their admissibility. (See Pl.'s Resp., ECF No. 36.)
A district court has broad discretion in determining the admissibility of expert testimony. Taylor v. Cooper Tire & Rubber Co. , 130 F.3d 1395, 1397 (10th Cir. 1997). The proponent of the expert testimony bears the burden of proving the foundational requirements of Rule 702 of the Federal Rules of Evidence by a preponderance of the evidence. Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which provides:
[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. Each expert's opinions are subject to the same standards of reliability that govern the opinions of strictly scientific experts retained for the purposes of litigation. See Kumho Tire Co., Ltd. , 526 U.S. at 151, 119 S.Ct. 1167 (). Rule 702 and Daubert require courts to act as gatekeepers by ensuring all expert testimony, whether scientific, technical, or any other specialized knowledge, is both reliable and relevant. Id. at 152–53, 119 S.Ct. 1167. In order to make the requisite findings, the Court "must first determine whether the expert is qualified ‘by knowledge, skill, experience, training, or education’ to render an opinion." United States v. Nacchio , 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc) (quoting Fed. R. Evid. 702 ). Second, the Court must determine whether the expert's opinions are sufficiently reliable "by assessing the underlying reasoning and methodology." Id. ; Fed. R. Evid. 702 ; Kumho Tire Co. , 526 U.S. at 152–53, 119 S.Ct. 1167. Finally, the Court must determine whether the proposed expert testimony will assist the trier of fact. Fed. R. Evid. 702.
Defendant takes issue with the reliability and relevance of the opinions rendered by Mr. Montgomery in his report, but does not otherwise appear to challenge Mr. Montgomery's qualifications to render those opinions as a former law enforcement officer. Accordingly, the Court limits its considerations under Rule 702 to those issues presented under the second prong of the Court's gatekeeping function, turning first to reliability.
Rule 702 permits the admission of expert testimony that is "based on sufficient facts or data" and is "the product of reliable principles and methods" that have been "reliably applied" to the facts of the case. Fed. R. Evid. 702. To determine if this reliability standard has been satisfied, a district court must first consider "whether the reasoning or methodology underlying the testimony is scientifically valid." Daubert , 509 U.S. at 592–93, 113 S.Ct. 2786. In Daubert , the Supreme Court listed four non-exhaustive factors for a trial court to consider in making its reliability assessment: (1) whether the expert's technique or theory can be and has been tested; (2) whether the theory has been subjected to peer review or publication; (3) whether the technique has a known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory has been generally accepted in the relevant scientific community. Kumho Tire , 526 U.S. at 149–150, 119 S.Ct. 1167. However, in non-scientific cases, the Daubert factors "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho Tire , 526 U.S. at 150, 119 S.Ct. 1167. Generally, the opinion must be based on "good grounds." In re Paoli R.R. Yard PCB Litigation , 35 F.3d 717, 742 (3d Cir. 1994).
An expert opinion also "must be based on facts which enable [the expert] to express a reasonably accurate conclusion as opposed to conjecture or speculation," although "absolute certainty is not required." Gomez v. Martin Marietta Corp. , 50 F.3d 1511, 1519 (10th Cir. 1995) (quotation omitted). "The plaintiff need not prove that the expert is [i]ndisputably correct or that the expert's theory is ‘generally accepted’ in the scientific community." Mitchell v. Gencorp Inc. , 165 F.3d 778, 781 (10th Cir. 1999). Instead, the plaintiff must show the method employed by the expert in reaching the conclusion is sound and the opinion is based on facts which satisfy Rule 702's reliability requirements. Id. "Generally, the district court should focus on an expert's methodology rather than the conclusions it generates." Dodge v. Cotter Corp. , 328 F.3d 1212, 1222 (10th Cir. 2003). The court may, however, reasonably "conclude that there is simply too great an analytical gap between the data and the opinion proffered" and exclude the expert's testimony. Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).
Mr. Montgomery intends to testify that Officer Schultz's actions were not prudent or in accordance with established police practices. Defendant argues the opinions Mr. Montgomery rendered in this regard are "based on insufficient and irrelevant facts and ipse dixit conclusions, rather than a reliable application of his expertise in police practices." (Def.'s Mot. to Strike at 7.) In his report, Mr. Montgomery indicates his opinions are "based on [his] education, training, and experience over a 57-year career in the business of policing, and the information [he] [has] reviewed concerning this case." (Montgomery Report at 5.) Defendant contends, however, that Mr. Montgomery's opinions do not fully explain how the information he reviewed, or his education, training, and experience, supports the conclusions reached in his report.
The Tenth Circuit has observed that "police officers can acquire specialized knowledge of criminal practices and thus the expertise to opine on such matters." United States v. Medina-Copete , 757 F.3d 1092, 1104 (10th Cir. 2014) (internal quotations and citations omitted). However, "witnesses relying solely or primarily on experience ... must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the...
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