BECERRA v. SCHULTZ (2020)

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.

Background

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.)

Standard of Review

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 (holding Daubert applies even when an expert's opinion relies on skill or experience-based observation). 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.

Discussion

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.

A. 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 opinion, and how that experience is reliably applied to the facts.” Id. (internal quotations and citations omitted). Upon review of Mr. Montgomery's report, in connection with his deposition testimony, the Court concludes he has set forth an adequate explanation of how his experience as a Colorado law enforcement officer and other policing experience led him to the conclusions he reached about Officer Schultz's conduct.

Mr. Montgomery was questioned thoroughly on this issue during his deposition, and he indicated he has extensive personal law enforcement knowledge and experience with making off-duty arrests and the use of force in an arrest. Notably, Mr. Montgomery also spent a significant portion of his law enforcement career in Lakewood, Colorado, where Defendant is certified as a police officer. (See Montgomery Dep. 21:25-22:19.) In determining the reasonableness of Officer Schultz's conduct, he indicates he relied on several documents and the 911 call that were provided to him, then applied his personal experiences as well as general policing standards to decide whether she used excessive force or made an improper off-duty arrest. (See id. 149:4–7 (“Q․ [I]n formulating your opinions in your report, you relied on your training and experience as a police officer; right? A. Yes.”)). Mr. Montgomery appears to have developed his conclusions based upon general practices or procedures that, in his experience, a reasonable officer would follow. (See, e.g., Montgomery Dep. 105:11–13 (stating in reference to the suspiciousness of an individual returning along the same route exited that “in my experience over 58 years, if it's a robbery and she reported a home invasion, they are long gone. They are not going to be coming back and circling back”)). Accordingly, the Court cannot conclude Mr. Montgomery's “opinion evidence is connected to existing data only by the ipse dixit of the expert.” Kumho Tire, 526 U.S. at 157, 119 S.Ct. 1167.

Defendant also takes issue with the particular facts relied upon by Mr. Montgomery, arguing they impermissibly adopt Plaintiff's version of events and fail to consider any of Officer Schultz's observations. (See Def.'s Mot. to Strike at 9.) However, Defendant's concerns in this regard ultimately appear to go to the weight of this evidence, not its admissibility. Any shortcomings in the facts and data relied upon by Mr. Montgomery is best addressed through vigorous cross examination, rebuttal expert testimony, and presentation of contrary evidence, whereby the trier of fact will determine what weight, if any, should be attributed to his opinions. See Troudt v. Oracle Corp., 369 F. Supp. 3d 1134, 1144 (D. Colo. 2019) (“To the extent defendants believe Mr. Geist's narrative is based on an incomplete and skewed interpretation of the evidence, ‘[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the appropriate means for pointing out such flaws.’ ” (quoting Daubert, 113 S.Ct. at 2798)). The parties can question Mr. Montgomery and allow the finder of fact to reach its own conclusions, as “it is up to the jury to decide whether the expert used the best or most reliable methodology, what weight to accord to his testimony and which of competing experts' opinions should be credited.” Cook v. Rockwell Int'l Corp., 580 F. Supp. 2d 1071, 1085 (D. Colo. 2006).

Accordingly, the Court finds Mr. Montgomery's methodology lends a sufficient indicium of reliability such that his opinions do not require exclusion on this ground. However, it bears noting the Court is not necessarily saying all of Mr. Montgomery's testimony in this area will be admissible. Rather, Mr. Montgomery may offer testimony subject to laying a proper foundation and at the Court's sound discretion.

B. Relevance

An expert's testimony must also assist “the trier of fact to understand the evidence or determine a fact in issue.” Fed. R. Evid. 702. “Relevant expert testimony must ‘logically advance[ ] a material aspect of the case,’ ․ and be ‘sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.’ ” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (internal citations omitted). “In assessing whether testimony will assist the trier of fact, district courts consider several factors, including whether the testimony is within the juror's common knowledge and experience, and whether it will usurp the juror's role of evaluating a witness's credibility.” Id. at 476–77 (quoting United States v. Rodriguez–Felix, 450 F.3d 1117, 1123 (10th Cir. 2006)). “Pursuant to Rule 702, courts must conduct a ‘common-sense inquiry’ into whether a juror would be able to understand certain evidence without specialized knowledge.” Garcia, 635 F.3d at 476 (citing United States v. Becker, 230 F.3d 1224, 1231 (10th Cir. 2000)).

Defendant argues Mr. Montgomery's opinions are irrelevant and unhelpful to the jury because they “exclusively rely on alleged violations of local and national police standard operating procedures and policies.” (Def.'s Mot. to Strike at 4.) Claims alleging false arrest and excessive force by a police officer are analyzed under the Fourth Amendment “objective reasonableness” standard. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Cortez v. McCauley, 478 F.3d 1108, 1120 (10th Cir. 2007). Precedent from the Tenth Circuit and the Supreme Court are the controlling authority on the Fourth Amendment, therefore “violations of state law and police procedure generally do not give rise to a 1983 claim” for excessive force or false arrest. Marquez v. City of Albuquerque, 399 F.3d 1216, 1222 (10th Cir. 2005) (quoting Romero v. Board of County Comm'rs, 60 F.3d 702, 705 (10th Cir. 1995)); see also Estate of Smart v. City of Wichita, 2020 WL 3618850 at 4 (D. Kan. July 2, 2020). The Tenth Circuit has expressly held a violation of standard operating procedures in this context “does not make it more or less likely that the arrest implicates the Fourth Amendment, and evidence of the violation is therefore irrelevant.” Tanberg v. Sholtis, 401 F.3d 1151, 1167 (10th Cir. 2005). Moreover, the fact that Officer Schultz may have violated standard operating procedures is also not directly relevant to Plaintiffs claims arising under state law, which do not incorporate a “reasonableness” component such that comparisons to national standards would assist the jury in making a decision. See Lippe v. Howard, 287 F. Supp. 3d 1271, 1281 (W.D. Okla. 2018) (“If a defendant violates the standard operating procedure (“SOP”) governing the use of force, that fact may be pertinent to the police department's future decision to promote, retain or discipline the officer; it is not, however, relevant to determining whether the seizure violated the reasonableness requirement of the Fourth Amendment.”).

In his report, Mr. Montgomery indicates he intends to testify that Officer Schultz's conduct violated national model policies for off-duty police conduct as well as Lakewood Police Department's policies and procedures. (Montgomery Report at 6-8.) The Court finds this testimony would not “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a); Marquez v. City of Albuquerque, 399 F.3d 1216, 1222 (10th Cir. 2005). Plaintiff asserts, however, that Mr. Montgomery does not rely solely on standard operating procedures; he also relied upon and may testify as to his extensive experience in policing and law enforcement to formulate his opinions as to what a reasonable officer under the circumstances would have done. (See Pl.'s Resp. at 36.) To the extent Mr. Montgomery opines as to what is reasonable conduct in the context of his own training and experience as a police officer, he may offer testimony on this issue. (See Montgomery Dep. 142:10–143:6, ECF No. 36-8.) Expert testimony to this effect may be beneficial to the trier of fact in determining the ultimate “reasonableness” of Officer Schultz's conduct under the Fourth Amendment. See Estate of Smart, 2020 WL 3618850 at *5. However, this testimony would be subject to a potential limiting instruction, if requested. Id. To the extent Mr. Montgomery is unable to separate his personal experiences and explanation of police training and protocols from “nationally accepted police standards” or “standard operating procedures,” he will be precluded from testifying on the matter so as not to improperly confuse the jury.

Defendant finally contends the basis for Mr. Montgomery's first opinion contains “multiple improper legal conclusions.” (Def.'s Mot. to Strike at 6.) Defendant points to portions of Mr. Montgomery's report in which he states Officer Schultz “did not have police officer authority in the State of Wyoming” and further indicates burglary was not a “serious crime.” (Montgomery Report at 6.) It is well-settled that an expert may not state legal conclusions drawn by applying the law to the facts. See United States v. Jensen, 608 F.2d 1349, 1356 (10th Cir. 1979). It is the role of the jury to decide what result should be reached based on the evidence presented and the Court's instructions on the law. See id.

Here, Mr. Montgomery's opinion that Officer Schultz “did not have police officer authority in the State of Wyoming” would encroach upon an application of jurisdictional laws given the nature of the issues at hand, and is therefore impermissible. However, Mr. Montgomery is not otherwise precluded from testifying as to the facts underlying this conclusion, such as Officer Schultz's admission that she is not trained or certified as a peace officer in Wyoming. Similarly, Mr. Montgomery's opinion as to the “seriousness” of Plaintiff's alleged crime appears to be in reference to an application of a standard for an off-duty arrest set forth by the International Association of Chiefs of Police (IACP). (See Montgomery Report at 6.) The relationship between a type of crime and any type of national or international standard is problematic for those reasons as previously stated by this Court and as forth by the Tenth Circuit in Marquez. See 399 F.3d at 1222. Mr. Montgomery may therefore testify as to the nature of the crime or illegal activity he understood or believed to have occurred or observed by Defendant and, based upon his training and experience, what amount of force would have been or was reasonable. However, he will not be permitted to testify as to whether burglary, under the law, is a “serious crime” or whether the conduct at issue violated some type of model, national or international policy. Again, the question is not whether policy was violated, but whether under the facts and circumstances Defendant acted reasonably.

C. Opinions on Ultimate Questions of Law

Lastly, Defendant asserts Mr. Montgomery offers opinions as to the “prudence” of Officer Schultz's conduct, and is thus in effect opining on an ultimate question of law in this case, namely, whether Officer Schultz's conduct was reasonable under Fourth Amendment jurisprudence. (Def.'s Mot. to Strike at 10.) Under Federal Rule of Evidence 704(a), an expert witness is permitted to testify in the form of an opinion or inference even if that opinion or inference embraces an ultimate issue to be determined by the trier of fact. See Karns v. Emerson Elec. Co., 817 F.2d 1452, 1459 (10th Cir. 1987). An expert is also generally permitted to refer to the law in expressing his opinion. Specht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988). An expert may not, however, state a legal conclusion by applying the law to the facts of the case, as this Court has already noted. See id.; Lippe v. Howard, 287 F. Supp. 3d 1271, 1285 (W.D. Okla. 2018).

The Court agrees Mr. Montgomery's conclusions that Officer Schultz did not act “prudently” borders on an impermissible legal conclusion and infringes upon the purview of the jury given the nature of the claims and issues presented in this case. However, Mr. Montgomery appears to base this ultimate opinion on his estimation of what a reasonable officer would have done under the same or similar circumstances, as compared the actions taken by Officer Schultz. See Rogers v. Bonnett, No. CIV SA-04-CA-0118-XR, 2009 WL 2461820, at *6 (W.D. Tex. Aug. 11, 2009) (“Testimony about what a reasonable officer would have done under the same circumstances could be helpful to a jury determination on these issues, but Lively's conclusory opinion that Bonnette acted as a reasonable prudent officer would have acted under the same circumstances does nothing more than tell the jury how to decide the case.”). An expert may be properly “called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms.” Specht, 853 F.2d at 810. Reasonableness in the context of the Fourth Amendment is a highly fact-specific inquiry, and expert testimony in this area generally may be helpful for the jury to understand or determine certain facts. See generally Morris v. Noe, 672 F.3d 1185, 1195 (10th Cir. 2012) (noting “[e]xcessive force claims are governed by the Fourth Amendment's ‘objective reasonableness’ standard․ Under this standard, the question is whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” (internal quotations and citations omitted)). Therefore, while Mr. Montgomery may testify, based upon his knowledge, training and experience, as to the factors he considers in making an arrest or determining the level of force to exercise, he may not opine that Defendant used excessive force or made a false arrest. See Lippe, 287 F. Supp. 3d at 1285.

Conclusion

In accordance with the foregoing analysis, the Court will allow Mr. Montgomery to testify as ordered. Any further rulings on individual objections will be left to the sound discretion of the Court at trial. Therefore, it is hereby

ORDERED that Defendant's Motion to Strike Expert Testimony of Dan Montgomery (ECF No. 32) is GRANTED IN PART and DENIED IN PART.

SCOTT W. SKAVDAHL, United States District Judge