Ellis v. Hobbs Police Dep't

472 F.Supp.3d 1087

Brandon ELLIS, Jeremy Artis, and Vasshawn Robinson, Plaintiffs,

v.HOBBS POLICE DEPARTMENT, Jason Herrera, Chad Wright, Shane Blevins, Jeremy Kirk, Matthew Burleson, Jimmy Grimes, Christopher McCall, and J.J. Murphy, Defendants.

Case No. 2:17-cv-01011 KWR/GBW

United States District Court, D. New Mexico.

Filed July 13, 2020

Adam C. Flores, Joseph P. Kennedy, Shannon L. Kennedy, Erin L. Chavez, Kennedy Kennedy & Ives, LLC, Albuquerque, NM, for Plaintiffs.

David Anthony Roman, Marcus J. Rael, Jr., Luis E. Robles, Taylor Sauer Rahn, Robles Rael & Anaya PC, Albuquerque, NM, David Smith, John McLandrich, Pro Hac Vice, Todd Raskin, Mazanec, Raskin & Ryder Co., L.P.A., Cleveland, OH, for Defendants.

MEMORANDUM OPINION AND ORDER

KEA W. RIGGS, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court upon Defendants’ Motion in Limine to Exclude Expert Testimony and Report of Robert L. Stewart, filed on November 21, 2019 (Doc. 189) . Having reviewed the parties’ pleadings and the applicable law, the Court finds that Defendants’ motion is well-taken in part and, therefore, is GRANTED IN PART and DENIED IN PART.

BACKGROUND

This case arises out of alleged racial discrimination in the Hobbs Police Department ("HPD") and retaliation for Plaintiffs’ opposition to racial discrimination within the Hobbs Police Department. Plaintiffs, former HPD Officers, allege they were retaliated against for (1) opposing or reporting HPD's racial discrimination and (2) opposing alleged discriminatory police practices against African Americans. Defendants include Hobbs Police Department, Chief McCall, and several supervisors and officers.

Plaintiffs filed this case under 42 U.S.C. § 1981 and 1983, and the New Mexico Whistleblower Protection Act. Plaintiffs’ complaint asserts the following claims:

Count I: New Mexico Whistleblower Protection Act

Count II: First Amendment Retaliation under § 1983 ; and

Count III: Racial Discrimination pursuant to § 1981.

Mr. Stewart is an expert in police procedures and practices. Mr. Stewart is extensively familiar with the facts of this case and reviewed a number of documents, including numerous depositions, CAD reports and call logs.

Defendants filed a motion seeking to exclude Mr. Stewart as an expert witness. The parties asserted that an evidentiary hearing is unnecessary and requested the Court rule on the papers. Docs. 251, 252. Therefore, the Court considers the parties’ briefing and attached exhibits.

LEGAL STANDARD

Federal Rule of Evidence 702 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. The touchstone of admissibility under Rule 702 is helpfulness to the trier of fact. See Werth v. Makita Elec. Works, Ltd. , 950 F.2d 643, 648 (10th Cir. 1991).

The gatekeeping function involves a two-step analysis. Milne v. USA Cycling Inc. , 575 F.3d 1120, 1134 (10th Cir. 2009). First, the Court must determine whether the witness may be qualified as an expert. To qualify as an expert, the witness must possess such "knowledge, skill, experience, training, or education" in the particular field so that it appears that his or her opinion rests on a substantial foundation and tends to aid the trier of fact in its search for the truth. LifeWise Master Funding v. Telebank , 374 F.3d 917, 928 (10th Cir. 2004). " Rule 702 thus dictates a common-sense inquiry of whether a juror would be able to understand the evidence without specialized knowledge concerning the subject." United States v. McDonald , 933 F.2d 1519, 1522 (10th Cir. 1991).

Second, the Court must determine whether the witness’ opinions are reliable under the principles set forth in Daubert and Kumho Tire. Ralston v. Smith & Nephew Richards, Inc. , 275 F.3d 965, 969 (10th Cir. 2001). In Daubert , the Supreme Court identified five factors that may or may not be pertinent in assessing reliability: (1) the theory or technique in question can be and has been tested; (2) it has been subjected to peer review and publication; (3) it has a known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. 509 U.S. at 593–94, 113 S.Ct. 2786. When assessing the reliability of a proposed expert's testimony, the Court may consider the Daubert factors to the extent relevant, which will depend on the nature of the issue, the expert's particular expertise, and the subject of his testimony. Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 150-51, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). "[W]hether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Kumho , 526 U.S. at 139, 119 S.Ct. 1167.

Rule 702 further requires that expert testimony is relevant. One aspect of relevance is that the opinions have a sufficient factual basis and a reliable application of the methodology to the facts. Daubert , 509 U.S. at 591, 113 S.Ct. 2786.

Expert witnesses may testify about ultimate issues of fact, but an expert may not state legal conclusions drawn by applying the law to the facts. United States v. Richter , 796 F.3d 1173, 1195 (10th Cir. 2015). Although an expert may not give an impermissible legal conclusion, an expert may give testimony that embraces an ultimate issue so long as the expert's testimony assists, rather than supplants, the jury's judgment. Id. (quoting United States v. Dazey , 403 F.3d 1147, 1171-72 (10th Cir. 2005) ); United States v. Schneider , 704 F.3d 1287, 1293 (10th Cir. 2013) (stating that Rule 704(a) allows expert opinion on an ultimate issue so long as he explains basis for any summary opinion and does not simply tell the jury what result to reach). "Permissible testimony provides the jury with the tools to evaluate an expert's ultimate conclusion and focuses on questions of fact that are amenable to the scientific, technical, or other specialized knowledge within the expert's field." Richter , 796 F.3d at 1195.

Where an expert witness's testimony is based on experience, the expert witness must explain how his 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. See United States v. Nacchio , 555 F.3d 1234, 1258 (10th Cir. 2009) (quoting Fed. R. Evid. 702 advisory committee's note (2000)).

So long as the district court has enough evidence to perform its duty in assessing the relevance and reliability of an expert's proposed testimony, a hearing is not required. See United States v. Call , 129 F.3d 1402, 1405 (10th Cir. 1997) ; See Goebel , 215 F.3d at 1087 (noting that a Daubert hearing "is not mandated" and that a district court may "satisfy its gatekeeper role when asked to rule on a motion in limine"); United States v. Nacchio , 555 F.3d 1234, 1251 (10th Cir. 2009). The proponent of the expert bears the burden by a preponderance of the evidence to establish that the requirements for admissibility have been met. Id.

Although the Court is required to conduct a Daubert examination of all experts before it, it need only expressly address the specific objections before it. United States v. Avitia-Guillen , 680 F.3d 1253, 1259 (10th Cir. 2012) ("When a party fails to object to an expert's methodology, the district court need not make explicit findings."), citing United States v. Velarde, 214 F.3d 1204, 1209 n.3 (10th Cir. 2000) (noting the defendant did not challenge the doctor's "credentials, expertise, or qualifications to testify as an expert"); Macsenti v. Becker , 237 F.3d 1223, 1233 (10th Cir. 2001) (specific findings on the record only required on party's objection); Goebel v. Denver & Rio Grande W. R.R. Co. , 215 F.3d 1083, 1088 n.2 (10th Cir. 2000) (when no objection is raised, district courts are not required to make "explicit on-the-record rulings" and, "we assume that the district court consistently and continually performed a trustworthiness analysis sub silentio of all evidence introduced at trial.").

DISCUSSION

Defendants concede that Mr. Stewart is qualified to testify as an expert. Doc. 189 at 3. Rather, Defendants argue that Mr. Stewart's opinions should be excluded because (1) they are not based on facts or data; (2) they will not be helpful to the jury; (3) they are unfairly prejudicial to Defendants; and (4) the opinions improperly apply the law to the facts to reach a legal conclusion. The Court agrees with Defendants in part and will exclude certain opinions as impermissible legal conclusions and credibility vouching. However, the Court will allow Mr. Stewart to discuss (1) HPD's buddy system and (2) HPD's policies and procedures and whether they fell below a standard of practice. Doc. 203 at 5.

A. Mr. Stewart's proposed testimony.

Plaintiffs do not address Defendants’ arguments. Rather, Plaintiffs appear to request that a limited subset of Mr. Stewart's opinions be admitted instead. Plaintiff request that the Court allow Mr. Stewart to testify about the Hobbs’ police "buddy system" and Hobbs’ policies and procedures. They also request he be allowed to opine whether Hobbs’ policies and procedures fell below a standard of practice. In their reply, Defendants did not address whether these narrow opinions are inadmissible but noted that Plaintiffs failed to rebut the arguments in their motion.

Plaintiffs assert that Mr. Stewart will provide insight into a reasonable police...