Meier v. McCoy
| Citation | 119 P.3d 519 |
| Decision Date | 06 September 2005 |
| Docket Number | No. 02CA1348.,02CA1348. |
| Parties | Leonard Louis MEIER, Plaintiff-Appellant, v. Robert McCOY and Mike Gabel, Defendants-Appellees. |
| Court | Supreme Court of Colorado |
Donald Chad Goldy, Denver, Colorado, for Plaintiff-Appellant.
Senter Goldfarb & Rice, L.L.C., Thomas S. Rice, Eric M. Ziporin, Denver, Colorado, for Defendants-Appellees.
In this personal injury action, plaintiff, Leonard Louis Meier, appeals the judgment in favor of defendants, Robert McCoy and Mike Gabel, officers of the Commerce City Police Department. He also appeals the award of attorney fees and costs. We affirm.
Plaintiff was injured while being arrested by defendants. He sued defendants for negligence, assault, and battery, and prayed for punitive damages based on willful and wanton conduct. Plaintiff also alleged defendants used excessive force in violation of his civil rights under 42 U.S.C. § 1983. The jury returned verdicts for defendants on all claims. Thereafter, defendants asked for attorney fees, and the court awarded fees against plaintiff and his attorney, jointly and severally.
Plaintiff contends that the trial court erred when it disqualified his expert witness and denied his motion to strike defendants' expert. We disagree.
CRE 702 governs a trial court's determination regarding the admissibility of expert testimony. When proposed expert testimony involves experience-based specialized knowledge, the court must consider whether the testimony will be helpful to the jury and whether the witness is qualified to render an expert opinion on the subject in question. People v. Shreck, 22 P.3d 68 (Colo.2001); Brooks v. People, 975 P.2d 1105 (Colo.1999). If the testimony is admissible under CRE 702, the court must then determine whether the probative value of that evidence is substantially outweighed by the danger of unfair prejudice. CRE 403; Brooks v. People, supra.
The qualification of an expert witness to testify is within the trial court's discretion and will not be disturbed absent an abuse of that discretion. Southerland v. Argonaut Ins. Co., 794 P.2d 1102 (Colo.App.1990). An abuse of discretion occurs only when the trial court's ruling is manifestly arbitrary, unreasonable, or unfair. Keybank v. Mascarenas, 17 P.3d 209 (Colo.App.2000).
We first reject plaintiff's argument that the trial court improperly excluded the testimony of his expert witness.
Plaintiff argues that the witness was qualified to render the opinion that defendants used excessive and unreasonable force because (1) he is a certified emergency technician (2) he is a founder and owner of a company that performs executive protection and forensic investigations; and (3) he has "extensive" experience in law enforcement as a firearms instructor and bloodhound expert. We are not persuaded.
The trial court concluded that plaintiff's witness was not qualified to testify as an expert on the use of force by law enforcement officers effecting an arrest. The court reasoned that the witness had never (1) been employed in a law enforcement field, (2) participated professionally in a determination of what force a police officer may use in making an arrest, (3) arrested anyone, (4) completed a police officer training course, or (5) been retained by a police department to teach use of force. The court found that although the witness is a certified federal firearms instructor, he considers himself an expert in the use of firearms but not in other aspects of the use of force. The court also found that the only training in emergency medicine the witness had was the EMT basic course.
Claims of excessive use of force are analyzed under a Fourth Amendment objective reasonableness standard. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
Because the record shows that the witness had not been trained or employed as a police officer and did not have any other experience that would have qualified him to assess the reasonableness of the use of force from the perspective of a police officer, he was not qualified to testify regarding the conduct of a reasonable police officer. Thus, we conclude that the trial court's ruling disqualifying plaintiff's witness was not arbitrary, unreasonable, or unfair.
We reject plaintiff's contention that the trial court has a duty to voir dire an expert witness sufficiently to apprise itself of the nature and substance of the proposed expert testimony.
The cases plaintiff relies on in support of his proposition are inapposite. It was plaintiff's burden to demonstrate the qualifications of the witness and the relevance of his testimony, not the court's duty to ferret out that information.
To the extent plaintiff argues that the court's bases for disqualifying his witness are contrary to the decision in People v. Bornman, 953 P.2d 952 (Colo.App.1997), we disagree. Contrary to plaintiff's assertion, the Bornman witness was not disqualified because he had never been previously qualified as an expert or because he did not belong to any particular organization, but because he was not qualified by experience.
We also disagree with plaintiff's contention that an expert witness's lack of qualification goes to the weight of the witness's testimony rather than to its admissibility. See People v. Shreck, supra; Brooks v. People, supra (). We also reject plaintiff's contention that the court employed "flawed" reasoning in disqualifying the witness.
Plaintiff next contends that the trial court erred when it denied his motion to strike defendants' expert witness. Plaintiff argues that he reasonably believed that defendants' witness would not testify because that witness was endorsed as a rebuttal witness and, after the court disqualified plaintiff's expert witness, there was no expert testimony to rebut. We are not persuaded.
Defendants' C.R.C.P. 26(a)(2) disclosure stated that the witness would testify in the fields of law enforcement policy and procedure and, specifically, regarding the appropriate use of force by defendants. Defendants produced the witness's narrative report summarizing the proposed testimony. It also stated that "[i]n addition, [the witness] may be called to rebut the opinions of Plaintiff's expert . . . once those opinions become fully disclosed through deposition."
Defendants later filed an amended designation of witnesses stating that the witness "will be called as an expert in law enforcement policy and procedure." The amended designation did not state that the witness would be called only in rebuttal.
On the day the court excluded plaintiff's expert witness, the parties filed a proposed trial management order in which defendants again stated that they "will call" the expert witness.
We conclude that defendants' disclosures clearly state defendants' intention to call the witness and do not imply that they would only call him if plaintiff's expert testified. Therefore, we reject plaintiff's contention.
Because plaintiff did not raise the issues at trial, we decline to address his argument that defendants' witness was not qualified to testify as an expert because (1) his testimony was not based on any methodology or independent investigation, and (2) he did not have sufficient education. See Denver Urban Renewal Auth. v. Berglund-Cherne Co., 37 Colo.App. 360, 553 P.2d 99 (1976), aff'd, 193 Colo. 562, 568 P.2d 478 (1977).
To the extent plaintiff contends that by allowing defendants' expert witness to testify, the court violated plaintiff's right to a fair trial, plaintiff provides no basis in law to support this contention.
We also reject plaintiff's contention that the trial court committed reversible error by assuming the role of advocate.
During cross-examination of defendants' expert on plaintiff's damages, plaintiff's counsel probed the expert's opinion that plaintiff had suffered no damages and asked the witness to consider that plaintiff had been out of work for six months. The expert opined that plaintiff had suffered no economic damage over his remaining work life because plaintiff's remaining work life "is no different than what had already been demonstrated in prior history." He explained that it was appropriate to look at plaintiff's work pattern from age twenty to the present, his "rate of incarceration," and "the amount of time he has to take off because of alcoholism" because,
The court granted plaintiff's motion to strike and instructed the jury to disregard the "comment about a number of DUIs." After the jury was excused, plaintiff's counsel asked for a mistrial on the ground that it was improper to accuse plaintiff of driving while he had been drinking.
Before ruling on the motion, the court asked plaintiff's counsel whether he had discussed the ramifications of the motion with his client and whether he had told him "that [a mistrial] would likely result in another two-year delay and probably cost him thousands upon thousands of dollars to get back to the position he's in today." The court further commented that counsel should tell his client that he had already unequivocally admitted that he should not have been driving because he was under revocation, the evidence was overwhelming that he was intoxicated, and the expert's comment had been struck. The court also stated that the implication that plaintiff should not have been driving and was driving while intoxicated was "smeared all over the record." The court again told plaintiff's counsel to determine whether his client wanted "to take another couple years and spend all this...
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