Schneider v. City of Grand Junction Police Department, The et al

Filing 118

OPINION AND ORDER GRANTING MOTION FOR LEAVE TO FILE REVISED RULE 702 MOTION: The Motion for Leave to File Revised Rule 702 Motion 113 is GRANTED. The parties shall submit a revised Joint Rule 702 Motion for the purposes of the February 29, 2012 hearing. The revised Joint Rule 702 Motion shall be submitted within 21 days of the issuance of this Order. by Judge Marcia S. Krieger on 12/7/11.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 10-cv-01719-MSK-KLM
MISTI LEE SCHNEIDER,
Plaintiff,
v.
THE CITY OF GRAND JUNCTION POLICE DEPARTMENT, an agency of The City of Grand
Junction;
BILL GARDNER;
JOHN CAMPER;
WILLIAM D. BAKER; and
JOHN AND JANE DOES 1 to 10, in their official and individual capacities,
Defendants.

OPINION AND ORDER GRANTING MOTION FOR LEAVE TO FILE REVISED RULE
702 MOTION

THIS MATTER comes before the Court on Plaintiff’s Motion for Leave to File Revised
Rule 702 Motion (#113), to which Defendants responded (#114), and Plaintiff replied (#115).
Having considered the same, the Court FINDS and CONCLUDES the following.
In this action, the Plaintiff brings a single claim under 42 U.S.C. § 1983 for violation of
her Fourteenth Amendment substantive due process rights arising out of her alleged sexual
assault by a former Grand Junction police officer. The claims against the Defendants are they
were deliberately indifferent in their hiring, training, supervision, and discipline of the officer.
The issue here concerns opinions proffered by the Plaintiff’s expert witness, Michael Brasfield,
who opines as to the practices of the Grand Junction Police Department and its supervisory
personnel.

Mr. Brasfield’s opinions have been challenged both as to the adequacy of the
foundational showing under Fed. R. Evid. 702 and as to whether the content of the opinions he
will offer at trial were fully disclosed in his expert report. After the parties submitted a Joint
Motion Under Fed. R. Evid. 702 (#83), the Defendants filed a Motion in Limine (#84) arguing
that the opinions as set forth in the Joint Motion contained additional material not disclosed in
the expert report.1
A hearing was held on the Motion in Limine on August 4, 2011. After hearing argument
from counsel and comparing the opinions contained in the Joint Rule 702 Motion to those
expressed in the expert report and supplemental report, the Court ruled as follows:
The exercise that we’ve been going through is an exercise
designed to determine whether Mr. Brasfield's opinions are
opinions as to best practices derived from his personal experience
or whether his opinion as to best practices is derived from model
codes.
And when the opinion is identified in the 702 motion that
the policies and procedures of the Grand Junction Police
Department and City of Grand Junction as implemented do not
comply with the common and best practices in the field of law
enforcement, we have to distinguish between whether that is based
upon Mr. Brasfield’s interpretation of what those best practices are
based on his experience or whether that is a statement of what the
best practices are by various organizations.

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In their Motion, the Defendants sought to strike eleven of Mr. Brasfield’s opinions
(Opinions 1, 2, 3, 4, 5, 7, 9, 10, 11, 12, and 13) on the ground that they were not timely disclosed
in Mr. Brasfield’s expert report provided pursuant to Fed. R. Civ. P. 26(a)(2). In particular, the
Defendants argued that nowhere in the report does Mr. Brasfield opine that the Defendants failed
to comply with the common and best practices in the field of law enforcement or the standards
outlined in the model policies and procedures of certain law enforcement groups (such as the
Colorado Association of Chiefs of Police (“CACP”)), but that, despite this failure, such
comparisons or conclusions are stated in Dr. Brasfield’s Opinions 1, 2, 3, 4, 5, 7, 9, 10, 11, 12,
and 13.
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He didn’t do that for us in these reports. He interwove it.
And that’s why I asked counsel for the plaintiff to go back and
figure out what the opinions were. Were the opinions based upon
his personal experience, which appears to be extensive, or were his
opinions based upon noncompliance with model codes? He didn’t
do that.
Now, I'm disappointed that we don’t have a better idea
today than what we did at the last hearing, because Mr. Rice is
correct that generalities do not serve for a 702 evaluation. We’re
beyond the point of generalities, because this court has to
determine whether the foundational requirements of 702 have been
satisfied. And the opinions are not admitted simply because Mr.
Brasfield has a lot of experience. That is a process that is always
evolving. It seems difficult for all of us because it is a very
structured process of looking at 702 components, and that’s not
how most expert witnesses approach the formulation of their
opinions.
So I’m going to, having considered the arguments raised by
Counsel and also having considered the fact that the plaintiff has
had adequate opportunity to refine the opinions or to confer with
Mr. Brasfield to determine what the opinions are that he would be
presenting -- I’m going to grant the motion in limine with regard to
all challenges as to compliance with model policies and procedures
of the International Association of Chiefs of Police, the
Commission on Accreditation of Law Enforcement Agencies, and
the Colorado Association of Chiefs of Police, except for those that
have been specifically delineated in today’s hearing.
Tr. (#98) at 35-36.
An evidentiary hearing on the remaining objections to Mr. Brasfield’s opinions (as well
as Plaintiff’s objections to Defendants’ expert’s opinions) is set for February 29, 2012. The
Plaintiff now seeks to submit a revised Joint Rule 702 Motion in which she would include Mr.
Brasfield’s opinions regarding whether the Defendants complied with the best and common
police practices, as determined by his experience rather than by published model policies and
practices. The Defendants oppose submission of the revised opinions on the grounds that the

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Court has excluded these opinions in their entirety.
The Court’s ruling was limited to “all challenges as to compliance with model policies
and procedures of the International Association of Chiefs of Police, the Commission on
Accreditation of Law Enforcement Agencies, and the Colorado Association of Chiefs of Police,
except for those that have been specifically delineated.” If Mr. Brasfield will offer opinions at
trial regarding best and common practices in the field of law enforcement based on his personal
experience, these opinions may be included in a revised Joint Rule 702 Motion. If such opinions
were not properly disclosed in his expert reports, the Defendants may file appropriate motions to
seek to exclude them, or may object on other grounds.
Therefore, the Motion for Leave to File Revised Rule 702 Motion (#113) is GRANTED.
The parties shall submit a revised Joint Rule 702 Motion for the purposes of the February 29,
2012 hearing. The revised Joint Rule 702 Motion shall be submitted within 21 days of the
issuance of this order.
Dated this 7th day of December, 2011.
BY THE COURT:

Marcia S. Krieger
United States District Judge

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