Cole v. Hunter

• Decision Date: 22 December 2014
• Docket Number: Civil Action No. 3:13–cv–02719–O.
• Citation: 68 F.Supp.3d 628
• Parties: Randy COLE and Karen Cole, Individually and as Next Friends of Ryan Cole, Plaintiffs, v. Michael HUNTER, Martin Cassidy, Carl Carson, and the City of Sachse, Texas, Defendants.
• Court: U.S. District Court — Northern District of Texas

68 F.Supp.3d 628

Randy COLE and Karen Cole, Individually and as Next Friends of Ryan Cole, Plaintiffs

v.Michael HUNTER, Martin Cassidy, Carl Carson, and the City of Sachse, Texas, Defendants.

Civil Action No. 3:13–cv–02719–O.

United States District Court, N.D. Texas, Dallas Division.

Signed Dec. 22, 2014.

James Mark Mann, Mann Tindel & Thompson, Henderson, TX, R. Jack Ayres, Jr., Law Offices of R. Jack Ayres Jr., Christopher S. Ayres, Ayres Law Office PC, Addison, TX, for Plaintiff.

James T. Jeffrey, Jr., Law Offices of Jim Jeffrey, Arlington, TX, Norman Ray Giles, William S. Helfand, Chamberlain Hrdlicka White Williams & Martin, Houston, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

REED O'CONNOR, District Judge.

Before the Court are Defendants Hunter and Cassidy's Motion for Summary Judgment and Brief and Appendix in Support (ECF Nos. 112–23), filed September 22, 2014; Plaintiffs' Response (ECF Nos. 145–47), filed October 28, 2014; and Defendants' Reply (ECF No. 148), filed November 7, 2014. Also before the Court are Defendants' Motion to Exclude the Testimony of Plaintiffs' Expert Tom Bevel and Appendix in Support (ECF Nos. 126–28, 132, 135), filed September 25, 2014; Plaintiffs' Response (ECF Nos. 142–44), filed October 28, 2014; Defendants' Reply (ECF No. 149), filed November 7, 2014; Defendants' Motion to Exclude the Testimony of Plaintiffs' Expert Timothy Braaten and Appendix in Support (ECF Nos. 129–31, 136), filed September 25, 2014; Plaintiffs' Response (ECF Nos. 139–41), filed October 28, 2014; and Defendants' Reply (ECF No. 150), filed November 7, 2014.

Having considered the motions, related briefing, evidence, and applicable law, and for the reasons that follow, the Court finds that Defendants' Motion for Summary Judgment and Defendants' Motions to Exclude Expert Testimony should be and are hereby DENIED. The Court further OVERRULES Plaintiffs' Objection on the Basis of Judicial Estoppel, and the Court DEFERS ruling on Plaintiffs' Objections to Defendants' Experts Albert Rodriguez and Gene Henderson insofar as the objections exceed the scope of this summary judgment determination.

I. BACKGROUND

This is an action by Plaintiffs Randy and Karen Cole, individually and as next friends of their son Ryan Cole (“Cole” or “Ryan Cole”), alleging claims under 42 U.S.C. § 1983 and state law against the City of Sachse, Texas (“City of Sachse” or “City”), and Michael Hunter (“Hunter”), Martin Cassidy (“Cassidy”), and Carl Carson (“Carson”), police officers for the City at the time of the incident precipitating this lawsuit. This case arises from the alleged use of deadly force by Officers Hunter and Cassidy (sometimes collectively, “the Officers”) on the morning of October 25, 2010, in the City of Garland, Texas, when they shot Ryan Cole several times, causing profound mental and physical disabilities. Plaintiffs allege causes of action based on unconstitutional use of deadly force, failure to train or supervise, and a subsequent conspiracy by Officers Hunter, Cassidy, and Carson to manufacture evidence and make use of perjured testimony.

In Count One of the First Amended Complaint, Plaintiffs assert a claim under 42 U.S.C. § 1983 for Officers Hunter and Cassidy's use of deadly force in violation of Ryan Cole's Fourth Amendment rights. In Counts Two and Three, Plaintiffs assert a claim under 42 U.S.C. § 1983 against the City of Sachse based on its facially unconstitutional policies on the use of deadly force (Count Two), and inadequate training, supervision, policies and practices (Count Three) that resulted in the unlawful shooting of Ryan Cole. In Count Four, Plaintiffs bring a claim under § 1983 against the Officers Hunter, Cassidy, and Carson for causing and participating in the unlawful prosecution of criminal charges using manufactured evidence and perjured testimony, without probable cause, in violation of Cole's Fourth and Fourteenth Amendment rights, and for conspiracy to deprive Cole of his constitutional rights. Count Four also seeks relief under state law for malicious prosecution. In addition to these claims, Plaintiffs Randy and Karen Cole also bring individual federal and state law bystander claims for mental anguish.

On January 24, 2014, the Court granted Defendants' motion to dismiss Plaintiffs' state law malicious prosecution claims and bystander claims against Officers Hunter, Cassidy, and Carson, as well as Plaintiffs' federal law bystander claims against the three officers and the City. Mem. Op. & Order, Jan. 24, 2014, ECF No. 85, 2014 WL 266501. The Court denied Defendants' motion to dismiss Plaintiffs' remaining claims. Id. The denial of Defendant Carson's motion to dismiss Count Four on the basis of qualified immunity and failure to state a claim is now pending before the United States Court of Appeals for the Fifth Circuit. See Def. Carson's Notice Appeal, ECF No. 87.

On April 18, 2014, the Court ordered that “all proceedings concerning Count IV, including discovery, are hereby stayed pending the resolution of Defendant Carson's interlocutory appeal of this claim or further order of this Court.” Order 11–12, Apr. 18, 2014, ECF No. 100. However, the Court permitted narrowly tailored discovery regarding Count One, provided that it is reasonably calculated to assist the Court in determining whether Defendants Hunter and Cassidy are entitled to qualified immunity on Count One at the summary judgment stage. Id.

Defendants Hunter and Cassidy now move for summary judgment, and both parties seek to exclude expert testimony. Plaintiff further objects to Defendants' motion for summary judgment on the basis of judicial estoppel. The motions and objections have been fully briefed and are ripe for determination.

II. LEGAL STANDARDS

A. Motion for Summary Judgment

Summary judgment is proper when the pleadings and evidence on file show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The movant makes a showing that there is no genuine issue of material fact by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Fed.R.Civ.P. 56(c).

When reviewing the evidence on a motion for summary judgment, the court must decide all reasonable doubts and inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988). The court cannot make a credibility determination in light of conflicting evidence or competing inferences. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. As long as there appears to be some support for the disputed allegations such that “reasonable minds could differ as to the import of the evidence,” the motion for summary judgment must be denied. Id. at 250, 106 S.Ct. 2505.

B. Admissibility of Expert Testimony

“The admissibility of expert testimony is governed by the same rules, whether at trial or on summary judgment.” First United Fin. Corp. v. U.S. Fid. & Guar. Co., 96 F.3d 135, 136–37 (5th Cir.1996). “In rulings on the admissibility of expert opinion evidence the trial court has broad discretion and its rulings must be sustained unless manifestly erroneous.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir.1987).

Federal Rule of Evidence 702 governs the admissibility of expert testimony. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.2009). This rule provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. Effective December 1, 2000, Rule 702 was amended to incorporate the principles first articulated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Fed.R.Evid. 702, adv. comm. notes (2000). UnderDaubert, expert testimony is admissible only if the proponent demonstrates that: (1) the expert is qualified; (2) the evidence is relevant to the suit; and (3) the evidence is reliable. See Watkins v. Telsmith, Inc., 121 F.3d 984, 988–89 (5th Cir.1997). The trial court is charged with making this preliminary determination under Fed.R.Evid. 104(a).¹ Andrade Garcia v. Columbia Medical Center of Sherman, 996 F.Supp. 617, 620 (E.D.Tex.1998) ; see also Fed.R.Evid., adv. comm. notes (2000).

Daubert lists five non-exclusive factors to consider when assessing the scientific validity or reliability of expert testimony: (1) whether the theory or technique 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 of the method used; (4) the existence and maintenance of standards and controls in the methodology; and (5) whether the theory or method has been generally accepted by the scientific community. Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786. These factors are not necessarily limited to scientific evidence and may be applicable to testimony offered by non-scientific experts, depending upon “the particular circumstances of the particular case at issue.” Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In either case, the D...