Nicastle v. Adams County Sheriff's Office et al

Filing 91

ORDER. 1. Under FED. R. CIV. P. 702, the defendants Motion To Strike Plaintiffs Liability Experts 44 filed 2/14/2011, is GRANTED as to the plaintiffs proposed expert opinion testimony addressing a) whether Darr had a retaliatory motive when he impo sed disciplinary measures on Nicastle; b) whether procedures used in disciplinary proceedings used against Nicastle were unfair or violated Nicastles right to due process of law; and c) whether an expert opinion witness would have imposed no discipli nary measures or different disciplinary measures on Nicastle if the witness had been in Darrs position as Sheriff; 2. That evidence concerning the content of recommendations concerningdiscipline of Nicastle that were made to Darr before Darr made a d ecision about a certain disciplinary issue concerning Nicastle are admissible, assuming all other requirements for admissibility are satisfied; 3. That otherwise, the defendants Motion To Strike Plaintiffs Liability Experts 44 filed 2/14/2011, is DENIED. By Judge Robert E. Blackburn on 4/29/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-00816-REB-KMT
MARK R. NICASTLE,
Plaintiff,
v.
ADAMS COUNTY SHERIFF’S OFFICE, and
SHERIFF DOUGLAS N. DARR, in his official and individual capacity,
Defendants.

ORDER CONCERNING MOTION TO EXCLUDE EXPERT WITNESSES
Blackburn, J.
This matter is before me on the defendants’ Motion To Strike Plaintiff’s
Liability Experts [#44]1 filed February 14, 2011. The plaintiff filed a response [#52]
and the defendant filed a reply [#63]. I grant the motion in part and deny it in part.
I. STANDARD OF REVIEW
Defendant seeks to limit the proposed testimony of plaintiff’s expert witnesses.
Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert
witness testimony, 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)
1

“[#44]” is an exam ple of the convention I use to identify the docket num ber assigned to a
specific paper by the court’s case m anagem ent and electronic case filing system (CM/ECF). I use this
convention throughout this order.

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. As interpreted by the Supreme Court, Rule 702 requires that an
expert’s testimony be both reliable, in that the witness is qualified to testify regarding
the subject, and relevant, in that it will assist the trier in determining a fact in issue.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92, 113 S.Ct.
2786, 2795-96, 125 L.Ed.2d 469 (1993); Truck Insurance Exchange v. MagneTek,
Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). The Supreme Court has described the
court’s role in weighing expert opinions against these standards as that of a
“gatekeeper.” See Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147,
119 S.Ct. 1167, 1174, 142 L.Ed.2d 248 (1999).
Under Daubert and its progeny, an expert opinion is reliable if it is based on
scientific knowledge. “The adjective ‘scientific’ implies a grounding in the methods and
procedures of science. Similarly, the word ‘knowledge’ connotes more than subjective
belief or unsupported speculation.” Daubert, 113 S.Ct. at 2795. In short, the
touchstone of reliability is “whether the reasoning or methodology underlying the
testimony is scientifically valid.” Id. at 2796; see also Truck Insurance Exchange,
360 F.3d at 1210. The party proffering the expert opinion must demonstrate both that
the expert has employed a method that is scientifically sound and that the opinion is
“based on facts which enable [the expert] to express a reasonably accurate conclusion
as opposed to conjecture or speculation.” Goebel v. Denver and Rio Grande
Western Railroad Co., 346 F.3d 987, 991 (10th Cir. 2003) (quoting Gomex v. Martin
Marietta Corp., 50 F.3d 1511, 1519 (10th Cir. 1995)).
Rule 702 demands also that the expert’s opinion be relevant, that is, that the
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testimony “fit” the facts of the case. Daubert, 113 S.Ct. at 2796; In re Breast Implant
Litigation, 11 F.Supp.2d 1217, 1223 (D. Colo. 1998). “‘[T]he standard for fit is higher
than bare relevance.’” In re Breast Implant Litigation, 11 F.Supp.2d at 1223 (quoting
In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 745 (3rd Cir. 1994), cert.
denied, 115 S.Ct. 1253 (1995)). The proffered evidence must speak clearly and
directly to an issue in dispute in the case. Id.
Guided by these principles, the court has broad discretion in determining
whether expert testimony is sufficiently reliable and relevant to be admissible. Truck
Insurance Exchange, 360 F.3d at 1210; Smith v. Ingersoll-Rand Co., 214 F.3d 1235,
1243 (10th Cir. 2000). The overarching purpose of the court’s inquiry is “to make certain
that the expert . . . employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Goebel, 346 F.3d at 992
(quoting Kumho Tire Company, 119 S.Ct. at 1176).
II. ANALYSIS
The claims at issue in this case are plaintiff Mark Nicastle’s claims that
defendant Douglas Darr retaliated against Nicastle for Nicastle’s exercise of his First
Amendment rights to freedom of speech and freedom of association. Nicastle is a long
standing employee of the Adams County Sheriff and, at the times relevant to Nicastle’s
claims, Darr was the elected Sheriff of Adams County. It is undisputed that Darr
imposed various disciplinary measures on Nicastle, including the demotion of Nicastle
from lieutenant to sergeant. They key issue in this case is whether Darr took these
actions in an effort to retaliate against Nicastle for Nicastle’s exercise of his right to free
speech and freedom of association as Nicastle sought to run for the office of Sheriff.

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A. Summary of Proposed Opinion Testimony
The defendants challenge the testimony of five witnesses designated by the
plaintiff as offering testimony under Rule 702.
1. James Sewell - Sewell has been designated to offer opinion testimony
concerning the personnel practices of the Adams County Sheriff’s Office and to opine
that Darr’s imposition of various disciplinary measures on Nicastle was motivated by
Darr’s desire to place Nicastle in a politically weak position. In his report, Sewell notes
what he considers to be inconsistencies and irregularities in various disciplinary actions
taken against Nicastle, and opines that Darr lacked objectivity when he participated in
certain disciplinary actions against Nicastle. Motion to strike [#44], Exhibit B (Sewell
report). Sewell has substantial experience with law enforcement agencies in Florida,
apparently including management of such agencies.
2. Paul Siska - Siska is a 33 year employee of the Adams County Sheriff’s
Office, and worked for seven years as undersheriff. Siska has been designated to
opine that certain disciplinary measures imposed on Nicastle were inappropriate, in his
judgment, and that Darr’s motive for imposing these disciplinary measures on Nicastle
was to retaliate against Nicastle and to put Nicastle in a politically weak position.
Motion to strike [#44], Exhibit C (Siska report).
3. Todd McIntosh, David Shipley, Clinton Tweeden, Fred Stoll - These four
witnesses all have long-term experience as employees of the Adams County Sheriff’s
Office. Generally, the plaintiff seeks to have these witnesses express opinions about
the quality of Nicastle’s performance as a lieutenant in the Adams County Sheriff’s
Office, what each of these witnesses would have done had they been in control of
various disciplinary measures taken against Nicastle, and their opinion that certain
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disciplinary measures taken against Nicastle were unfair or improper. Siska, Tweden,
and Stoll were involved in the process of imposing disciplinary measures on Nicastle.
Siska and Stoll authored written recommendations concerning the outcome of certain
disciplinary proceedings against Nicastle. Tweden and Shipley were Nicastle’s
supervisor during certain times relevant to this case.
B. Sufficiency of Disclosure
The plaintiff designated McIntosh, Shipley, Tweeden, and Stoll as non-retained
experts under FED . R. CIV. P. 26(a)(2)(C). Rule 26(a)(2)(C) provides, in relevant part:
if the witness is not required to provide a written report, this disclosure
must state:
(i) the subject matter on which the witness is expected to present
evidence under Federal Rules of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected
to testify.
The plaintiff’s designations for McIntosh, Shipley, Tweden, and Stoll state that each of
these witnesses will testify as an expert “consistent with all matters raised in his . . .
deposition.” Motion to strike [#44], Exhibit A. The transcript of the deposition of each of
these witnesses is attached to the plaintiff’s expert disclosure. The defendants note
that the deposition of each of these witnesses was taken before the witnesses were
designated as experts and that the plaintiff’s Rule 26 designation gives no indication of
what topics addressed in the full-day depositions of each of these witnesses might be
the subject of purported expert testimony.
I conclude that the plaintiff’s initial designations of McIntosh, Shipley, Tweden,
and Stoll do not comply with the requirements of Rule 26(a)(2)(C). The transcripts of
the depositions of these witnesses do not specify adequately the subjects on which the

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witnesses are expected to present opinion testimony under Fed. R. Evid. 702, 703, or
705, and they do not summarize the opinions to which each of these witnesses is
expected to testify. Rule 26(a)(2)(C) requires specificity much greater than that
provided in the plaintiff’s designations and the deposition transcript of a day long
deposition.
On March 7, 2011, the plaintiff submitted a supplemental disclosure of expert
witnesses. Reply [#63] filed March 28, 2011, Exhibit A. The defendant states in his
reply that the supplemental disclosure is adequate, but continues to assert other bases
for exclusion of expert testimony by these witnesses. I read to defendant’s reply [#63]
as a withdrawal of his objection to the proposed expert testimony of McIntosh, Shipley,
Tweden, and Stoll based on insufficient disclosure. Therefore, I do not address this
issue further.
C. Topics of Proposed Opinion Testimony
In response to the defendants’ motion, Nicastle argues that opinion testimony will
be of assistance to the jury on the following topics:
1) law enforcement administration;
2) various law enforcement policies and what they actually mean in
practice;
3) how the practices of the Adams County Sheriff’s Office on various
topics such as county vehicle policy, political activity, and computer usage
differ from the actual policy;
4) how discipline has been handled historically on various topics;
5) how vacation policy has been handled historically in the context of a
law enforcement organization;
6) the criteria that have been used historically by the Adams County
Sheriff’s Office when considering demotion;

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7) the importance of understanding command structure;
8) the disciplinary process, including internal affairs; and
9) whether the actions or inactions of the plaintiff justify demotion or the
other adverse employment actions taken against Nicastle.
Initially, I conclude that testimony addressing the topics designated as 3), 4), 5),
and 6), above, is fact testimony rather than opinion testimony to which Rule 702 is
applicable. Percipient witnesses can describe these facts and such factual testimony
does not require further analysis and application of reliable principles and methods.
Because Rule 702 is not applicable to such fact testimony, I deny the defendants’
motion to the extent it seeks to exclude such testimony under Rule 702. The topics
designated by the plaintiff as 1), 2), and 7) are quite general and it is not clear what, if
any, opinion testimony the plaintiff may seek to present on these general topics. As a
result, I do not analyze these general topics in resolving this motion.
Notably, the plaintiff’s experts also seek to opine that:
1) in certain specific instances involving Nicastle, the witness would not
have imposed against Nicastle any disciplinary measures, or would not
have imposed the same disciplinary measures as were imposed by Darr;
2) that certain procedures used by Darr in disciplinary proceedings against
Nicastle were improper and unfair; and
3) that Darr’s motivation for imposing discipline on Nicastle was to place
Nicastle in a politically weak position.
D. Reliability
The defendant argues that the opinions of the plaintiff’s proposed expert
witnesses are not sufficiently reliable because there is no scientific method, or even
recognized framework, on which to based these decisions. Citing Daubert, the
defendant argues that the opinions in question have not been subject to testing or to

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peer review, that there is no known or potential rate of error in the methodology, and
there is no evidence that the witnesses’ theories have been accepted in the scientific
community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590
(1993). I disagree. The opinions at issue here are not scientific opinions. Because
opinion testimony often concerns issues outside of scientific disciplines,
the test of reliability is flexible, and Daubert's list of specific factors neither
necessarily nor exclusively applies to all experts or in every case. Rather,
the law grants a district court the same broad latitude when it decides how
to determine reliability as it enjoys in respect to its ultimate reliability
determination.
Kumho Tire Co., Ltd. v. Carmichael 526 U.S. 137, 142 (1999). To the extent I
conclude that the opinion testimony proposed by the plaintiff otherwise is admissible,
and considering nature of those opinions and the circumstances of this case, I conclude
that the opinion testimony proposed by the plaintiff is sufficiently reliable.
E. Circumvention of Jury Decision
The defendant argues that the plaintiff’s proposed exert testimony would
circumvent the jury’s decision making process. Fed. R. Evid. 704(a) provides that
opinion testimony that otherwise is admissible “is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.” With one exception, and
in relation to Nicastle’s First Amendment claims, the proposed opinion testimony does
not constitute the type of legal conclusions that must be excluded under Rule 702.
See, e.g., Specht v. Jensen, 853 F.2d 805, 808 (10th Cir. 1988). I note, however, that
some of Nicastle’s proposed expert witnesses do state that certain procedures used
when disciplinary measures were taken against Nicastle violated Nicastle’s right to due
process of law. Nicastle’s due process claim has been dismissed. Such opinion
testimony is improper under Specht in relation either to a due process claim or a First
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Amendment claim and must be excluded in this case. This includes opinion testimony
that certain procedures used when disciplinary measures were taken against Nicastle
were unfair.
F. Conflict of Interest
The defendant argues that the opinion testimony of Siska, Stoll, Tweeden, and
Shipley should be excluded because these witnesses have a conflict of interest. To the
extent this may be true, any such conflict of interest goes to the weight and credibility to
be accorded to the opinions of these witnesses, and not to the admissibility of their
opinion testimony.
G. Qualifications
The defendant challenges the qualifications of each of the witnesses listed
above to testify to the opinions stated in their reports and expert witness designations.
With one exception, I conclude that the witnesses in question are qualified to testify to
the opinions expressed in their reports or the plaintiff’s expert witness disclosure. I
conclude that to the extent there are any gaps or other flaws in the relevant
qualifications of these witnesses, those gaps go to the weight and credibility to be
accorded to their opinions and not to the admissibility of those opinions.
To the extent the plaintiff’s witnesses seek to express an opinion about the
motive of Darr when Darr imposed discipline on Nicastle, I conclude that the
qualifications of the witnesses are not adequate to permit them to opine about Darr’s
motive. Each of the plaintiff’s proposed experts have experience, and some have
education, in the area of law enforcement, including the management of a law
enforcement organizations and discipline within a law enforcement organization. Such
specialized training and experience is not sufficient to permit these witnesses to
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express a reliable and well-founded expert opinion about the possible motives of
another person, including Darr’s motive when he imposed discipline on Nicastle.
H. Need for Opinion Testimony
The ‘touchstone’ of admissibility of expert testimony is its
helpfulness to the trier of fact. When the normal experiences and
qualifications of laymen jurors are sufficient for them to draw a proper
conclusion from given facts and circumstances, an expert witness is not
necessary and is improper.
Wilson v. Muckala, 303 F.3d 1207, 1219 (10th Cir. 2002).
Whether Darr had a retaliatory motive when he imposed various disciplinary
measures on Nicastle is a key issue in this case. Some of the plaintiff’s proposed
expert witnesses have opined that Darr had a retaliatory motive, or a motive to put
Nicastle in a weak political position, when Darr imposed disciplinary measures on
Nicastle. I agree with the defendant that retaliation is not a confusing concept. The
normal experiences and qualifications of the jurors in this case will be sufficient for them
properly to reach a conclusion, based on the fact testimony and other evidence, about
whether or not Darr had a retaliatory motive. Expert testimony expressing an opinion
about Darr’s motive would not be helpful to the jury must be excluded.
Some of the plaintiff’s proposed experts seek also to express an opinion about
what discipline they would have imposed on Nicastle in certain circumstances had the
witness, rather than Darr, been in a position to impose such discipline. Given the broad
discretion granted to Darr, or any Sheriff, on such issues, and given the fact testimony
anticipated at trial, I conclude that such opinion testimony would not be helpful to the
jury. The normal experiences and qualifications of the jurors in this case will be
sufficient for them properly to reach a conclusion, based on the fact testimony and
other evidence, about the reasons and motivation for Darr’s actions.
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I note, however, that it appears that some of the proposed opinion witnesses
relayed to Darr recommendations concerning discipline of Nicastle before Darr made a
final decision about what discipline to impose. The content of such recommendations,
which were part of the basis for Darr’s ultimate decisions, are relevant to an evaluation
of Darr’s ultimate decision and are relevant to the jury’s evaluation of Darr’s motive.
These content of these recommendations, as opposed to hindsight opinion about
proper discipline, are admissible as fact testimony.
III. CONCLUSION
For the reasons detailed in this order, the opinion testimony of the plaintiff’s
proposed expert witnesses is not admissible to the extent these witnesses seek to
opine as an expert witness under Rule 702 that a) Darr had a retaliatory motive when
he imposed disciplinary measures on Nicastle; b) that procedures used in disciplinary
proceedings used against Nicastle were unfair or violated Nicastle’s right to due
process of law; and c) that the witness would have imposed no disciplinary measures or
different disciplinary measures on Nicastle if the witness had been in Darr’s position as
Sheriff. However, evidence concerning recommendations concerning discipline of
Nicastle made to Darr before Darr made a decision about a disciplinary issue involving
Nicastle are admissible, assuming all other requirements for admissibility are satisfied.
Otherwise, I deny the defendant’s motion to strike the plaintiff’s liability experts.
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That under FED . R. CIV. P. 702, the defendants’ Motion To Strike Plaintiff’s
Liability Experts [#44] filed February 14, 2011, is GRANTED as to the plaintiff’s
proposed expert opinion testimony addressing a) whether Darr had a retaliatory motive
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when he imposed disciplinary measures on Nicastle; b) whether procedures used in
disciplinary proceedings used against Nicastle were unfair or violated Nicastle’s right to
due process of law; and c) whether an expert opinion witness would have imposed no
disciplinary measures or different disciplinary measures on Nicastle if the witness had
been in Darr’s position as Sheriff;
2. That evidence concerning the content of recommendations concerning
discipline of Nicastle that were made to Darr before Darr made a decision about a
certain disciplinary issue concerning Nicastle are admissible, assuming all other
requirements for admissibility are satisfied;
3. That otherwise, the defendants’ Motion To Strike Plaintiff’s Liability
Experts [#44] filed February 14, 2011, is DENIED.
Dated April 29, 2011, at Denver, Colorado.
BY THE COURT:

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