R. BROOKE JACKSON, District Judge.
This order addresses four "Daubert" motions to exclude expert testimony and two other evidentiary motions.
James Davies, an agent (officer) with the Lakewood, Colorado Police Department, was shot and killed by a fellow officer on November 9, 2012 during the course of an attempt by numerous agents to clear a residence where gunshots had been reported. His widow, Tamara Davies, as personal representative of Agent Davies' Estate, alleges that the City of Lakewood, the officer who shot Mr. Davies, and two supervising sergeants who were present are liable in money damages for violating Agent Davies' constitutional rights. Motions for summary judgment are pending and will be addressed separately.
Under Rule 702 of the Federal Rules of Evidence, a qualified expert may provide opinion testimony if the evidence is both relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Expert opinions are
Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (citing Daubert, 509 U.S. at 593-94).
But Daubert's principles apply not only to scientific testimony but also to other specialized knowledge. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). "Federal Rules 702 and 703 grant expert witnesses testimonial latitude unavailable to other witnesses on the `assumption that the expert's opinion will have a reliable basis in the knowledge and experience his discipline.'" Id. at 148 (quoting Daubert, 509 U.S. at 592). The framework for assessing reliability is flexible. Kechi Township v. Freightliner, LLC, 592 F. App'x 657, 668 (10th Cir. 2014) (unpublished). Reliability generally focuses on the methodology, not the ultimate conclusions of the expert. Ho v. Michelin North America, Inc., 520 F. App'x 658, 663 (10th Cir. 2013) (unpublished).
The proponent of expert testimony has the burden to show that the testimony is admissible. U.S. v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). The trial court plays a "gatekeeping" role, but it has discretion as to how to perform that role. Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). Rule 702 was amended in 2000 in response to Daubert. The Advisory Committee observed at that time that post-Daubert case law had shown that "rejection of expert testimony is the exception rather than the rule." Pointedly, in view of the present case, the Committee stated that the amendment was "not intended to provide an excuse for an automatic challenge to the testimony of every expert." Id.
With those broad principles in mind, I turn to the task of assessing the relevance, reliability, and, ultimately, the admissibility of the challenged testimony. I will address the Daubert motions in the order in which they were heard and then turn to the two non-Daubert motions.
This motion was fully briefed upon the filing of defendants' reply brief on January 12, 2016. An evidentiary hearing was held on January 13, 2016. Dan Montgomery is a retired police chief. His CV and report may be found at ECF No. 166-1.
Chief Montgomery's opinions, in summary form, are that
Defendants City of Lakewood, Sgt. Current and Sgt. Grady assert a multitude of arguments as to why Chief Montgomery's opinions should be excluded. I will address their arguments in terms of their relevance and reliability.
For purposes of Rule 702, whether Mr. Montgomery's opinions are "relevant" depends on whether they would help the jury understand the evidence. In my view it is beyond dispute that a lay juror is unlikely to have more than a vague notion of the standards applicable to police officers without the testimony of a qualified expert.
Defendants argue that Chief Montgomery's comparison of the officers' conduct to "professional police practices" is irrelevant because "professional police practices" amounts to Chief Montgomery's own personal standard and is designed to establish liability. I disagree. It is evident from a review of his report, see, e.g., ECF No. 166-1 at 3 (definition of "professional police practices"), and from his testimony at the hearing, that what Chief Montgomery calls "professional police standards" is simply his way of describing what he believes to be the standard of care applicable to police officers.
Whether Agent Braley used excessive force when he shot Agent Davies turns on whether Braley's conduct was "objectively reasonable in light of the circumstances confronting him." Zuchel v. Spinharney, 890 F.2d 273, 275 (10th Cir. 1989) (Zuchel I).
Defendants argue that Chief Montgomery's opinions might confuse the jury because violation of the applicable standard of care is not ipso facto a Fourth Amendment violation. I agree that the legal standard for an excessive force determination under the Fourth Amendment is different from the violation of the standard of care. I do not agree that the jury will be confused, any more than the jury was confused in Zuchel II. The Court will give the jury clear instructions on the elements of the alleged constitutional violation. I note as well, as discussed below, that defendant Braley is the proponent of expert testimony from an expert named William Everett who — unlike Chief Montgomery — is a lawyer as well as a law enforcement officer and whose opinions appear to be based both on the standard of care and the constitutional standard. That defendant, at least, appears not to be worried about jury confusion.
Defendants suggest that Chief Montgomery is providing opinions on the applicable law, and that such testimony is inadmissible under Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988). As plaintiff points out, the Tenth Circuit rejected the same argument in Zuchel II. The court observed that the argument overlooks the "critical" distinction between an expert who was a lawyer specializing in constitutional law (Specht) and an expert who "had a doctorate in criminal justice and was an expert in police training, tactics and the use of deadly force." 997 F.2d at 742. "Courts generally allow experts in this area to state an opinion on whether the conduct at issue fell below accepted standards in the field of law enforcement." Id. Chief Montgomery does not purport to express an opinion on the law, see ECF No. 166-1 at 20, nor would this Court permit him to do so.
I do agree with defendants to the extent that Chief Montgomery's opinions that the actions of the individual officers were inconsistent with the policies, procedures and rules of the Lakewood Police Department are not admissible. See, e.g., Tanberg v. Sholtis, 401 F.3d 1151, 1163-64 (10th Cir. 2005). I will address that subject in more detail below in my discussion of defendant's motion to exclude consideration of inadmissible evidence in its determination of their motion for summary judgment.
Earlier I noted that opinions are generally deemed reliable for purposes of Rule 702 if the expert is qualified by knowledge, education or experience, and the opinions are scientifically valid, if they are of a scientific nature, or otherwise have a reliable basis in the knowledge and experience of the expert's discipline. Dan Montgomery has spent 53 years in law enforcement, serving five police departments in California and Colorado. He retired in 2007 as the Chief of Police in Westminster, Colorado. He has a number of degrees in related subjects, including an MS Degree from the University of Colorado in Criminal Justice Administration, and many training courses. His lists of certifications, trainings, awards, and professional writings are lengthy. He began consulting on a part-time basis while still serving as Westminster's police chief, and after retiring he formed his own consulting business in Arvada, Colorado. He has been qualified as an expert in police practices in numerous federal and state courts, citing some 211 cases in 15 states during which he has been hired by police officers and governmental entities defending against misconduct allegations, citizens asserting police misconduct, and other matters. Unsurprisingly, defendants do not question his credentials.
Another defense argument is that Chief Montgomery's opinions should be precluded because they are based on hindsight. Well, yes, in one sense that has to be true. Obviously, neither the experts nor the jurors were present when the incident occurred. But, as I have said, and as the jury will be instructed, the conduct of these officers must be judged by what a reasonable officer knew or should have known at the time of the incident.
I have considered the objections to Chief Montgomery's testimony raised in defendants' motion, ECF No. 166, and further developed in their reply, ECF No. 206. With the exception of his opinions based on the officers' violation of Lakewood Police Department policies, I am not persuaded that any of these arguments provides a basis for exclusion of the testimony under Rule 702.
This motion was fully briefed upon the filing of defendants' reply brief on January 12, 2016. An evidentiary hearing was held on January 14, 2016. Ron Martinelli is a forensic criminologist. A portion of his report may be found at ECF No. 181-1. His full report, CV, case history, fee schedule, and complete deposition transcript were provided to the Court at the Daubert hearing as Exhibits 1 through 5.
Dr. Martinelli has a Ph.D. in Criminology with an emphasis in forensic psychology from Columbia Pacific University in 1986. Between 1975 and 1992 he was a police officer in Redwood City and San Jose, California. For two years he worked in administration of a police academy and training center before returning to police work as a field training officer and detective from 1992 to 1995. Since that time he's done a variety of things in law enforcement related fields, including consulting, teaching and writing. He has a long list of awards and special achievements.
The objection filed by City of Lakewood, Sgt. Current and Sgt. Grady focuses on the opinions in Dr. Martinelli's report expressed at sections 5.3 and 6.14-1 through 6.14-4:
To the extent Dr. Martinelli's testimony concerns the standard of care applicable to police officers, it is relevant for the same reasons as I found Chief Montgomery's testimony on that subject to be relevant. Further, his testimony concerning his participation with Dr. Ziernicki and others in the creation of a reconstruction of the incident would be helpful to the jury and is relevant.
I agree with the defendants that he should not express opinions in terms of what is "objectively reasonable." For one thing, while he labels that "his terminology" and not the use of the legal standard for excessive force, it is potentially confusing. In addition I will apply the same rule to Dr. Martinelli as I will apply to Agent Braley's expert, Mr. Everett (below) and other experts. Although an expert opinion is not automatically objectionable just because embraces an ultimate issue, Fed. R. Evid. 704(a), I will exercise my discretion to preclude such expressions of opinion in this case. As for Dr. Martinelli it appears to be a moot point in any event, as counsel assured the Court that he would not describe officers' conduct as "objectively reasonable," or "not objectively reasonable," or as "deliberately indifferent" or similar phrases which the jury will resolve as necessary based on appropriate instructions of law.
I also agree with defendants that it would not be helpful to the jury to have Dr. Martinelli or other experts essentially speculate on what Agent Braley was thinking, seeing, or hearing. That can easily be avoided. Take, for example, the phrase at the beginning of section 5.3 to which defendants objects: "Agent Braley's sudden fear reaction in response to a subject exclaiming, `Hey' in a manner he describes as attempting to get his attention was not consistent with his recognized police practices and was not objectively reasonable for a number of reasons." Literally it does not speculate on what Braley was thinking, but it might be confusing. I would not have a problem if he were to express the same idea differently, such as, "A sudden fear reaction in response to a subject exclaiming, `hey' in a manner appearing to be an attempt to get one's attention is not consistent with recognized police practices and is not consistent with the standard of care for a number or reasons." Another acceptable alternative would be, "If one assumes hypothetically that Agent Davies said `Hey' in a manner described as attempting to get Agent Brady's attention, then in my opinion a sudden fear reaction would not be consistent with recognized police practices or the applicable standard of care for a number of reasons." I am not trying to dictate the wording of counsel's questions. Rather, I am providing examples that might help to explain the line between that which I would find objectionable and that which I would not. Counsel should be able to apply this reasoning to Dr. Martinelli's opinions generally. Defendants criticize some of Dr. Martinelli's opinions as conclusory and lacking a methodology, citing as an example the statement, "A reasonably trained and experienced officer given a similar set of circumstances would have logically determined that armed suspects do not call out to police officers if they intend to ambush them." But the context is that this sentence is just part of the sixth of seven reasons that Dr. Martinelli provides in support of his overall opinion in section 5.3. His overall opinion is not conclusory, and the particular sentence can be explored if desired on cross-examination or rebutted by a defense expert. As for methodology, the word doesn't necessarily fit an opinion that is based on Dr. Martinelli's education, training and experience as a law enforcement officer and consultant. Again, there might be better ways to phrase the opinion, such as, "Based on my experience as a police officer, and the training I received and have conducted for police officers, I believe that a police officer who had received training and experience consistent with the standards in the industry would probably believe that armed suspects do not often call out to police officers if they intend to ambush them." Then that statement can be challenged in any number of ways, but it is not irrelevant.
Dr. Martinelli has sufficient credentials to express opinions regarding the standard of care applicable to police officers. He is in much the same position as the expert in Zuchel. As for his section 6.14 opinions, the reliability objection is largely a criticism of Dr. Ziernicki's reconstruction. Dr. Ziernicki determined the positioning of Agent Davies based on his understanding and interpretation of the physical evidence. To the extent the jury is not persuaded, then conclusions that Dr. Martinelli drew from the reconstruction presumably would be equally suspect.
But challenges to Dr. Ziernicki's reconstruction do not impugn the reliability of Dr. Martinelli's role in the reconstruction.
I do agree that it would not be proper for Dr. Martinelli (or Chief Montgomery) to praise Dr. Ziernicki's report, such as his deposition testimony describing "Dr. Ziernicki's very extensive and I believe very well done report — it had to have been one of the best I've ever seen." Of course, if the defendants were to open the door (for example, "Why did you rely on Dr. Ziernicki's report?") my ruling would likely be different.
Defendants also assert that Dr. Martinelli's opinions are unfairly prejudicial under Rule 403 because he is putting the imprimatur of an expert on opinions that are speculative and unreliable. I have excluded his opinions to the extent that I found them to be speculative, and I certainly will apply that standard at trial.
Defendants note that Dr. Martinelli stated in one place, "I make the following findings and opinions to a reasonable degree of professional, scientific, and medical certainty." In my view, phrases of this kind are unnecessary. See, e.g., Talavera ex rel. Gonzalez v. Wiley, 735 F.3d 1262, 1274 (10th Cir. 2013) ("Talavera points to no authority in support of her position that an expert must invoke the phrase, `reasonable degree of medical certainty' or some other shibboleth to allow a court to consider the expert opinion"). Worse yet, Dr. Martinelli's expression is inaccurate. He has no evident medical expertise that would enable him to express opinions with medical certainty, and his opinions in the main are not "scientific" as such.
He may tell the jury what his opinions are (subject to this Court's Rule 702 rulings) and explain the basis for the opinions. If counsel believes that there is some case law that requires opinions to be expressed to some "reasonable degree of probability certainty," then keep it short, simple: "My opinions are expressed to a reasonable degree of probability within my field of expertise," or something similar. There is no need to aggrandize the opinions with legalese.
I agree with some of defendants' criticisms and have provided both general guidelines and specific examples. Generally, however, Dr. Martinelli's opinions concerning the standard of care and how it applies to facts such as those here, and his participation in the Ziernicki reconstruction, are not excludable under Rule 702 and the Daubert cases.
This motion was fully briefed upon the filing of defendants' reply brief on January 19, 2016. An evidentiary hearing was held on January 27, 2016. Richard M. Ziernicki, Ph.D., P.E. is a mechanical engineer and the President of Knott Laboratory, LLC, a forensic engineering company with its headquarters in Centennial, Colorado. His report is found at ECF No. 144-16 through 144-19.
Agent Braley, through counsel, argues that Dr. Ziernicki's opinions are unreliable because they are based on speculation regarding Agent Davies' position on the fence. Specifically, he argues that
Plaintiff responds that Dr. Ziernicki and his team conducted an extensive investigation which included inspection, measurement and laser scanning of the shooting site; his bullet trajectory analyses; reconstruction of the shooting by applying engineering methods of shooting reconstruction to the physical evidence; creation of a virtual model of the shooting scene; analyzing various positions and poses of Braley and Davies in comparison to the physical evidence; and conducting bio-mechanical studies of potential movements and poses to eliminate those which were unlikely.
Thus, the helicopter video of Agent Davies standing in an upright position on a ladder and remaining in the same location and position throughout the video footage was one objective physical fact that was used to test and confirm Ziernicki's opinion that Davies was probably standing upright on the ladder when he was shot. Dr. Ziernicki testified, without contradiction, that his reconstruction followed scientific methods and principles.
Agent Davies' positioning and movements, including where and how he was holding his weapon, immediately before he was shot are important facts in this case. Apparently Agent Braley is the only available eye witness to these facts. But one must bear in mind that Braley's defense is that it was objectively reasonable for him to have mistakenly thought that Agent Davies was a suspect who was pointing a gun at him, given the circumstances with which he was confronted and the split-second he had to decide whether to shoot. Those same facts could potentially affect the reliability of Agent Braley's recollection of exactly where and how Agent Braley was positioned and his movements. Therefore, a competent reconstruction based on physical evidence would be of assistance to the jury in assessing Agent Braley's testimony and determining facts in issue. Indeed, both sides wish to present expert testimony on that subject.
Dr. Ziernicki has extensive credentials as a mechanical engineer. His qualifications have not been challenged. There is no evidence that he did not follow scientific methods in his investigation. There is no contention that what he did was in any manner "junk science." On the contrary, his testimony at the January 27, 2016 hearing, mostly consisting of responses to cross-examination by Agent Braley's counsel, strengthened the impression I had formed from his report that he relied on physical evidence and recognized scientific methods of reconstruction in forming his opinions.
One can challenge the facts on which he based his opinions (as did Braley's two experts, William Spence and William Everett, to some extent) but that is not uncommon in litigation. Counsel argued that Dr. Ziernicki's admission at the hearing that he did not know exactly how Agent Davies' head was positioned immediately before the shooting shows that the opinion does not "fit" and would not be helpful to the jury. I disagree. To my mind, the admission simply emphasizes that Dr. Ziernicki's opinion was not based on facts that he did not (and could not) know with certainty. Dr. Ziernicki's opinion is that based on the marks left by the fatal bullet on the wall and adjacent cable, and the exit wound, he can determine where Agent Braley's head was when the shot was fired. One can agree or disagree with his opinion. But disagreement with it does not mean that it is not "reliable" within the meaning of Rule 702.
This motion was fully briefed upon the filing of plaintiff's reply on January 27, 2016. Defendants' response was filed January 22, 2016. An evidentiary hearing was held on January 28, 2016. William Spence is a retired law enforcement officer who was a member and chair of the "Incident Review Board" that investigated the Davies incident. His report is found at ECF No. 187-1. William J. Everett is a lawyer and a former law enforcement officer. He presently has his own law enforcement training company. His report is found at ECF No. 187-3.
Before turning to other opinions expressed by these gentlemen, I will address one common theme. Both experts discuss "selective attention," and Mr. Everett also discusses "inattentional blindness." These are psychological terms, but in substance they are the same or similar as the less fancy terms, "tunnel vision" and "tunnel hearing." Broadly speaking, these concepts relate to matters of attention, perception and memory. Mr. Spence and Mr. Everett apply these concepts to what Agent Braley might have heard on the radio as he drove to the scene, what he plausibly might not have heard, and what he might have seen and focused on when he confronted the individual who turned out to be Agent Davies. Mr. Everett, more so than Mr. Spence, delves into the literature on selective attention and inattentional blindness to explain and bolster his opinions.
Simply put, I find that neither Mr. Spence nor Mr. Everett has the qualifications to render reliable opinions on these subjects. On the contrary, I found credible and persuasive the testimony of Lisa R. Fournier, Ph.D., a psychologist and professor of psychology at Washington State University, concerning the qualifications of Mr. Spence and, in particular, Mr. Everett. For example, she reviewed the articles on which Mr. Everett relied, and she expressed the opinion that most of them are not valid or reliable due to flaws in research design and lack of statistical analysis to show reliability. In other instances she found that the articles were misrepresented. Dr. Fournier backed up her testimony in a lengthy report marked as hearing exhibit 4.
This is not to say that Mr. Spence and Mr. Everett are necessarily prohibited from mentioning the terms "selective attention" and "inattentional blindness." To the extent that they can testify that those terms are regularly used and taught in training police officers, and that the standard of care requires some training and knowledge of the concepts, then that much would be within their expertise. I do not have a Rule 702 problem with their explaining how and why the terms have become part of the regular curriculum in police officer education. I also would not have a problem with their discussing, as present and former police officers, their experience when driving and receiving radio calls.
But these experts must stay within the boundaries of their expertise. They are not to discuss the literature or attempt to explain brain functioning in any scientific or technical way. They may not express speculative opinions about what Agent Braley heard or didn't hear, saw or didn't see, nor that it is plausible to believe his testimony because of these concepts. Depending on how the evidence comes in, it may be that counsel in closing could properly urge the jury to infer that Agent Braley might not have heard or seen certain things due to these concepts that are taught in police academies.
I summarize what I take to be his primary other opinions as follows:
I summarize what I take to be his primary other opinions as follows:
I have addressed objections relating to selective attention and inattentional blindness above.
In general plaintiff argues that the studies and articles relied upon by Mr. Spence and Mr. Everett are not reliable. Id. at 7-9. Specifically, plaintiff argues that Mr. Spence's opinions on "blue on blue" shootings are unreliable because they are based on an unpublished, non-peer reviewed survey study that he published in another non-peer reviewed article.
Plaintiff argues that Mr. Everett's opinions improperly invade the province of the court and the jury, citing Specht v. Jensen, supra. Id. at 10-11.
The Court finds that in significant part the opinions expressed by Mr. Spence and Mr. Everett would not be helpful to the jury. Their speculation about what Agent Braley knew is not helpful. Their opinions about what Agent Braley saw or heard would not be helpful. The jury is as capable as these experts in making those findings. If anything, the jury is more capable of making independent findings on those subjects because, unlike Mr. Spence in particular, they are not necessarily wed to the credibility of what Agent Braley says. It will not be helpful to the jury to hear Mr. Everett, a lawyer, educate them on legal concepts. It will not be helpful to the jury to have either of these gentlemen opine on whether Braley's decision to shoot was objectively reasonable — the same type of testimony that the defendants vigorously opposed if ventured by Chief Montgomery or Dr. Martinelli. My overall reaction to the reports of Mr. Spence and Mr. Everett was that they were overreaching to the point that they tended to obscure the credibility of opinions that might be helpful to the jury.
However, I do find that certain things that these two gentlemen have to say would be potentially helpful to the jury and therefore relevant within the meaning of Rule 702. Mr. Spence's opinions on the standard of care applicable to Agent Davies' actions, and Davies' failure to adhere to that standard, might be helpful to the jury in understanding defendant's causation argument. With respect to the 24 items (my numbers) that supported his opinion on objective reasonableness, if he omits items 17-20 and 23 (which are pure speculation on his part), assumes the truth of a set of hypothetical facts that match the remainder of the list, and expresses an opinion as to whether based on the assumed facts firing was within the standard of care applicable to police officers, I would find that testimony to be helpful to the jury. His explanation of the Cardinal Rules of Firearm Safety and his opinion that the rules did not address the situation where an armed suspect points a gun at the officer would similarly be "relevant," as would his disagreement with Dr. Martinelli's analysis of the shot pattern. His comments on Dr. Ziegler's reconstruction might possibly be viewed as "relevant" (but see reliability findings below).
As for Mr. Everett, if he is provided a hypothetical set of facts (as opposed to his doing the fact-finding or speculating) as to what Agent Braley purportedly saw and heard, I would again find that his opinion as to whether firing would have complied with the standard of care to be relevant. His opinions based on studies regarding the average time it takes to raise and fire handguns and rifles from different starting positions would be relevant (and plaintiff can certainly cross-examine or introduce contrary evidence on the studies if she wishes). If he is given hypothetical facts consistent with what he attributes to Agent Albret, and he further assumes that Dr. Ziernicki did not consider those facts, then his opinion that this weakens the reconstruction would be relevant. His opinion that Dr. Ziernicki should have taken those facts into account would be relevant.
But, for emphasis, I repeat that his comments on the law, the definition of the "objectively reasonable standard," and his speculation about what Agent Braley knew or didn't know, saw or didn't see, are not relevant.
Both gentlemen have credentials in law enforcement that I find to be sufficient to make their opinions reliable, so long as they confine their opinions to the subjects that I have found to be relevant. Neither gentleman has the qualifications to comment on the scientific basis for the Ziernicki reconstruction, with the single exception I noted above concerning Mr. Everett's opinion based on the hypothetical statements his report attributes to Agent Albret.
Michelle Hoffman is a biomechanical engineer employed by Biodynamics Engineering, Inc. of Pacific Palisades, California. Parris Ward, who also is employed by Biodynamics Engineering, is a lawyer by education but has developed expertise in videography and computer-generated graphics. Together they were engaged by counsel for Agent Braley to provide opinions and testimony in rebuttal to the expert opinions and testimony of Dr. Ziernicki. Their report is found at ECF No. 171-1. Excerpts from the deposition of Ms. Hoffman are found at ECF No. 171-8. Excerpts from the deposition of Ms. Ward are found at ECF No. 171-7. Plaintiff's motion to exclude or limit their testimony became ripe upon the filing of her reply brief on January 14, 2016.
This is not a Daubert motion. Plaintiff has not objected to the credentials of the experts or to the relevance or reliability of the opinions expressed in their report. No party has requested a hearing. The objection essentially is one of fairness. Some background is necessary.
Early in this case plaintiff's counsel advised the defendants that they wished to take the deposition of Agent Braley in two parts. The first part of the deposition would take place at a mock-up of the scene of the shooting created at Knott Laboratory, the forensic engineering firm of which Dr. Ziernicki is the President; the second part of the deposition would follow a traditional in-office format. The purpose of the first part was to videotape Agent Braley as he demonstrated the positioning of Agent Davies and himself and their respective actions as a preliminary step to the second phase and to assist plaintiff's team in creating their own reconstruction. Counsel for Agent Braley objected.
I conducted a hearing by telephone on December 10, 2014. Agent Braley's counsel voiced several objections to the demonstration procedure. First, he stated that the incident was "a very emotional and traumatic event of Officer Braley. And putting him through this demonstration, reenactment, I think is truly going over the top." Transcript, ECF No. 35, at 6. Second, he argued that plaintiff could obtain the information necessary to do a reconstruction in a traditional deposition where Agent Braley would answer their questions and even demonstrate his movements and actions in the office setting. Id. Finally, he noted that a great deal of information had already been created about the various locations of people through police investigations, adding to plaintiff's ability to accomplish its objective without putting Agent Braley through the type of demonstration that plaintiff sought. Id. at 7. When I inquired whether this was counsel's position or Agent Braley's position counsel indicated that he and Agent Braley shared the concern. Id. at 13.
The Court sustained Agent Braley's objection in a written order issued on January 7, 2015. ECF No. 34. The Court found "that asking Agent Braley to demonstrate his earlier action at a mock-up of the scene of the shooting would impose a burden that outweighs the likely benefit of such a demonstration [which] would require the officer to relive what must be the most traumatic and tragic incident of his life, imposing a heavy emotional burden." Id. at 2. I further found that "it is all but impossible to recreate exactly an incident that occurred quite some time ago, and the plaintiff's attorneys can discover essentially the same information through traditional questioning." Id.
Approximately seven months later Agent Braley's counsel arranged for Agent Braley to spend approximately 5-6 hours with experts Hoffman and Ward at the actual scene, walking them through the incident, demonstrating his actions, posing for pictures, and assisting them in creating their own reconstruction and rebuttal to Dr. Ziernicki's opinions. ECF No. 171-1 at 8-11; ECF No. 171-7 at 9 (depo. of Ms. Ward, p. 125); ECF No. 171-6 at 2-3 (interrogatory answers of Agent Braley). It is no wonder that plaintiff cries foul. If participating in the demonstration requested by plaintiff was too emotionally traumatic for Agent Braley, then how does one account for his participation when his own lawyer requested it? If Agent Braley's deposition testimony and other available information were sufficient to assist plaintiff's experts in creating a reconstruction, then why did defendant Braley's experts need Agent Braley's extensive on-scene assistance? I now find that defendant's reasons for objecting to Agent Braley's participation in the demonstration requested by plaintiff were exaggerated at best and, if counsel anticipated at the time that he would later ask Agent Braley to participate in a "demonstration/reenactment" of his own, misleading at worst.
Nevertheless, I exercise my discretion to decline plaintiff's request to exclude the testimony of Ms. Hoffman and Ms. Ward under the doctrine of judicial estoppel or otherwise. In my judgment that would be an overreaction for several reasons. First, this is relevant evidence that would assist the jury in evaluating Dr. Ziernicki's testimony and, ultimately, in determining what likely happened. Second, exclusion of the evidence would deprive Agent Braley of an expert rebuttal to the Ziernicki evidence, and I am not satisfied that this would be fair to him. Although counsel indicated that both he and Agent Braley were concerned about plaintiff's proposal, I suspect that counsel was the driving force. Finally, and most importantly, although Ms. Ward herself admitted that having Agent Braley available to them at the scene gave them an advantage over Knott Laboratory, ECF No. 171-7 at 3 (depo. p. 76), I find that Dr. Ziernicki was able to develop his reconstruction and opinions quite capably based on the physical evidence without the demonstration plaintiff requested; put another way, I do not find significant unfair prejudice to the plaintiff from allowing this evidence.
However, I essentially warned Agent Braley's counsel during the argument on his objection to plaintiff's requested deposition demonstration that if he "opened the door," I would permit plaintiff to inform the jury of defendant's objection to having Agent Braley participate in a demonstration or re-creation of the incident. See ECF No. 34 at 10-11. If counsel calls Ms. Hoffman or Ms. Ward and solicits opinions consistent with their report, the door will have been opened. Even if defendant does not call Ms. Hoffman or Ms. Ward, the door will have been opened if any defendant suggests or implies that plaintiff's reconstruction is faulty because it described the positioning or actions of Agent Braley or Agent Davies inconsistently with Agent Braley's testimony. If the door is opened, the Court will permit the jury to be informed of defendant Braley's objection to plaintiff's proposal, the reasons given, the Court's acceptance of the reasons at the time, Agent Braley's later participation in the defendant's experts' inspection and reconstruction, and the Court's present views, in a manner that appears to be most appropriate in the context in which the matter arises.
Plaintiff also objects to the report and opinions of Ms. Hoffman and Ms. Ward on the alternative ground that it is improper rebuttal evidence. Their report was based on information created after the Ziernicki report, but that by itself does not render the report improper rebuttal. One cannot rebut what one has not seen, and if it is necessary to develop evidence on which to base rebuttal opinions, so be it. If Ms. Hoffman and Ms. Ward expressed opinions based on their July 23, 2015 site inspection and Agent Braley's assistance during that inspection, and ignored his previous statements, that does not necessarily render the consequent opinions improper rebuttal. The Court had addressed the consequence of opening that door, and plaintiff can point out inconsistencies in the Braley statements in cross-examination and otherwise.
However, plaintiff notes that Ms. Hoffman herself admitted in her deposition that their opinions extend beyond rebuttal of the Ziernicki/Knott Laboratory opinions. See Motion, ECF No. 171, at 12 (citing ECF No. 171-8 at 2, depo. p. 48). I agree with plaintiff that to any extent the opinions expressed at trial by either Ms. Hoffman or Ms. Ward go beyond a true rebuttal to the Ziernicki opinions as opposed to opinions that should have been disclosed when defendant's original expert disclosures were due, they would be improper and will be excluded. I decline to rule on specific testimony in limine; I can better assess whether any opinions of Ms. Hoffman or Ms. Ward are truly rebuttal, if necessary, after hearing what Dr. Ziernicki testifies to at trial. But I caution counsel for defendant Braley that I expect him or her to cull out and to refrain from attempting to solicit any opinions that are not true rebuttal.
Each of the four defendants has filed a motion for summary judgment. ECF Nos. 114, 115, 116 and 119. Plaintiff has filed two motions for partial summary judgment. ECF Nos. 122 and 123. The Court will address those motions in a separate order. However, the familiar ground rules are set forth in Rule 56. A motion for summary judgment must be granted if the moving party shows that there is no genuine dispute as to any material fact, and that it is entitled to judgment as a matter of law. Rule 56(a). A party must support its assertion that a fact is or is not genuinely disputed and can do so in either of two ways: (1) citing to materials in the record such as depositions, documents, affidavits, admissions, or interrogatory answers, Rule 56(c)(1)(A); or (2) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact. Rule 56(c)(1)(B).
In the pending motion defendants remind the Court of these rules and of the related rule that "a party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Rule 56(c)(2). The form in which the evidence is presented for summary judgment purposes might not be admissible. For example, depositions and affidavits may or may not be admissible as such. But if a party has no ability to prove a fact discussed in the deposition or affidavit through some form of admissible evidence, then the Court cannot rely on that fact to find that there is or is not a genuine dispute as to the fact. Suffice it to say that the Court will not base rulings on the summary judgment motions on facts that haven't been shown to be provable through admissible evidence.
This motion also seeks what in substance is an in limine ruling on three categories of allegedly inadmissible evidence: (1) evidence that the conduct of Agent Braley, Sgt. Current or Sgt. Grady violated Lakewood Police Department policies or West Metro SWAT Team Standard Operating Procedures; (2) evidence that Sgt. Current or Sgt. Grady were disciplined for policy violations; and (3) evidence of the Incident Review Board Report's recommendations of remedial measures that should be implemented by the Lakewood Police Department. To assist the parties in their trial preparation I will give them my current views on the admissibility of this evidence, bearing in mind that an in limine ruling made in advance of trial will sometimes be modified in the context of the specific evidence offered at trial.
I agree with the defendants that evidence regarding the individual officers' violation of the Department's or the SWAT Team's policies is not admissible as to the claims against them.
Regarding the findings and recommendations in the IRB report (which itself is subject to a hearsay objection), I begin with Rule 407 of the Federal Rules of Evidence which provides:
The focus of the rule is on remedial
Defendants state that, unlike three other post-incident investigations which concerned the facts of what happened (to which defendants apparently do not object), the IRB investigation was conducted solely to identify remedial measures that the Lakewood Police Department should take to ensure that a similar tragedy would not happen again. If that is the case, and if convening the IRB was done voluntarily by the Department in order to obtain recommendations for improvements to its procedures, then I would find that the IRB investigation is the equivalent of a subsequent remedial measure and, therefore, is inadmissible. Regardless, I am not inclined to admit evidence of any remedial measures that were recommended in this study. Please note, what is good for the goose is good for the gander. The Court's restrictions on references to the IRB investigation and report will be applied equally to the defendants and their experts.
In general, however, to the extent that post-incident investigations resulted in findings as to the facts of what occurred, they would be relevant to the jury's fact-finding mission like any investigation of an accident after the fact. See Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, a Division of Textron, Inc., 805 F.2d 907, 918 (10th Cir. 1999). Also, to the extent these investigations show what the Department's policies, customs or practices were at the time of the incident, they potentially would be relevant and admissible on the "Monell" issue.
