Barrientos-Sanabria v. Lake County, Colorado et al

Filing 75

ORDER granting 66 Motion to Preclude John Koziol Testimony by Magistrate Judge Kristen L. Mix on 10/15/12.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00838-KLM
OSVALDO BARRIENTOS-SANABRIA,
Plaintiff,
v.
EDWARD HOLTE, in his individual and official capacity,
ROD FENSKE, in his official capacity,
ANTONIO LOBATO, in his individual and official capacity, and
AARON D’MIZE, in his individual and official capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Daubert Motion to Preclude John
Koziol Testimony [Docket No. 66; Filed June 28, 2012] (the “Motion”). On July 20, 2012,
Plaintiff filed a Response [#71] in opposition to the Motion. On July 31, 2012, Defendants
filed a Reply [#72]. The Court has reviewed the pleadings, the exhibits, the entire case file
and the applicable law, and is fully advised in the premises. For the reasons set forth
below, the Motion [#66] is GRANTED.
I. Summary of the Case
On October 11, 2009, Plaintiff was a passenger in his wife’s vehicle while she was
driving in Lake County, Colorado. Second Am. Compl. [#31] at 12; Final Pretrial Order
[#69] at 3. Plaintiff’s wife was stopped for speeding by Defendant Deputy Antonio Lobato
(“Deputy Lobato”). [#69] at 3. Deputy Lobato arrested Plaintiff and charged him with
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obstruction of a peace officer, resisting arrest, and having an open container.

Id.

Defendant Lieutenant Aaron D’Mize (“Lieutenant D’Mize”) was in the vicinity at the time the
arrest was made and, although off-duty, assisted Deputy Lobato in the arrest. [#31] at 12.
Based on this incident, Plaintiff alleges three causes of action. First, he alleges that the
officers used excessive force in violation of the Fourth Amendment. [#31] at 13-14.
Second, Plaintiff alleges that he was unlawfully seized in violation of the Fourth
Amendment. [#31] at 15-16. Third, Plaintiff alleges that the First Amendment was violated
when the officers arrested him because they perceived him to be verbally uncooperative.
[#31] at 16-17.
Plaintiff offers the expert opinion of John Koziol (“Koziol”) to testify as a law
enforcement expert. According to his report, Mr. Koziol will testify that Plaintiff was
“agitated” at the traffic stop and was “likely impaired or under the influence of alcohol,
drugs, or both, and distracting the Deputy from his communications with the driver.” Report
of Koziol [#66-1] at 4. Mr. Koziol asserts that Deputy Lobato should have ignored Plaintiff,
in spite of his interference, and asked Plaintiff’s wife to step out of the car. Id. at 4-7. He
also asserts that both Deputy Lobato and Lieutenant D’Mize should have employed deescalation techniques. Id. He concludes, among other things, that the officers’ actions
were “unreasonable and grossly excessive” and that the force experienced by Plaintiff at
the hands of the officers was sufficient to cause “excruciating pain, injury and humiliation.”
Id. at 9.
Defendants assert multiple grounds for excluding Mr. Koziol’s testimony pursuant
to Fed. R. Evid. 702. First, Defendants argue that Mr. Koziol is unqualified to serve as an
expert in law enforcement procedure. Motion [#66] at 4-5. Second, Defendants argue that
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Mr. Koziol’s opinions are unreliable. Id. at 5-13. Third, Defendants argue that Mr. Koziol’s
opinions are irrelevant. Id. at 13-14.
Plaintiff counters Defendants’ arguments by asserting, in a nutshell, that they are not
a basis for excluding Mr. Koziol’s testimony, as the “jury must decide what weight Mr.
Koziol’s testimony should be given, like all other expert and lay testimony.” Response [#71]
at 2-3.
II. Analysis
A.

Legal Standards
“Admission at trial of expert testimony is governed by Fed. R. Evid. 702, which

imposes on the district court a gatekeeper function to ‘ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.’” United States v.
Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). Rule 702 provides the foundational
requirements for admission of expert opinions:
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.
The district court’s discretion in admitting or excluding expert testimony under Daubert is
broad, “both in deciding how to assess an expert’s reliability, including what procedures to

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utilize in making that assessment, as well as in making the ultimate determination of
reliability.” Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003).
”[B]efore admitting expert testimony, the trial court must make certain findings to
fulfill its gatekeeper role under Rule 702.” United States v. Yeley-Davis, 632 F.3d 673, 684
(10th Cir. 2011). In deciding whether an expert opinion is admissible, the district court
conducts a two-step analysis: (1) the court must determine whether the expert is qualified
to give the proffered opinion, and (2) the Court must examine whether the opinion is
reliable. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).
Regarding qualifications, “the court must determine whether the expert is qualified
by ‘knowledge, skill, experience, training, or education’ to render an opinion.” Milne v. USA
Cycling Inc., 575 F.3d 1120, 1133 (10th Cir. 2009) (quoting Fed. R. Evid. 702). Any one
of these qualifications can be sufficient to support a finding that an expert is qualified. See
Fed. R. Evid. 702 Advisory Committee Notes, 2000 Amendments.1 However, in some
fields, experience alone is the “predominant, if not sole, basis for a great deal of reliable
expert testimony.” Id. “Acceptance or rejection of an expert witness’s qualifications is a
matter within the discretion of the trial court.” United States v. Dysart, 705 F.2d 1247, 1251
(10th Cir. 1983). “Neither Rule 702 nor any other rule or precedent ... sets forth a specific
method by which the trial judge must determine the qualification of an expert.” Id.
Rule 702 also requires that the means or method by which the testimony or opinion
is derived be reliable. As such, as referenced above, the Rule sets out three specific

1

Because the witness’ qualifications must relate to the opinions offered in the present case,
the fact that the witness has given expert testimony in other cases is not relevant unless the
testimony was of the same nature using the same methodology.

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requirements to establish reliability: (1) a showing that the “testimony is based upon
sufficient facts or data,” (2) a showing that “the testimony is the product of reliable
principles and methods,” and (3) a showing that “the expert has reliably applied the
principles and methods to the facts of the case.” Fed. R. Evid. 702(b)-(d). The court
reaches this second step of the analysis only if it determines that a witness is qualified.
See Yeley-Davis, 632 F.3d at 684. This step of the analysis “requires the judge to assess
the reasoning and methodology underlying the expert’s opinion, and determine whether it
is both scientifically valid and applicable to a particular set of facts.” Dodge, 328 F.3d at
1221.
Finally, even if an expert is deemed qualified and his or her opinions are considered
reliable, admissibility still requires a determination that the opinions are relevant. That is,
the Court must consider “whether expert testimony . . . is sufficiently tied to the facts of the
case that it will aid the jury in resolving a factual dispute.” Daubert, 509 U.S. at 591
(citation omitted). Courts have routinely excluded expert testimony that was based on
nothing more than speculation. See, e.g., Jetcraft Corp. v. Flight Safety Int’l, 16 F.3d 362,
366 (10th Cir. 1993) (expert testimony excluded as professional speculation); Eastridge
Dev. Co. v. Halpert Assoc., Inc., 853 F.2d 772, 783 (10th Cir. 1988) (expert testimony
excluded as “tentative and speculative”). However, “[d]oubts about whether an expert’s
testimony will be useful should generally be resolved in favor of admissibility unless there
are strong facts such as time or surprise favoring exclusions.” Cook v. Rockwell Int’l Corp.,
580 F. Supp. 2d 1071, 1083 (D. Colo. 2006) (quoting Robinson v. Mo. Pac. R.R. Co., 16
F.3d 1083, 1090 (10th Cir. 1994)).
The proponent of expert testimony bears the burden of proving the foundational
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requirements of Rule 702 by a preponderance of the evidence. See Cook ex rel. Estate
of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1107 (11th Cir. 2005) (citing Daubert,
509 U.S. at 592 n.10). The proponent is not required to prove that the opinion is
indisputably correct or even 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
proponent must show that the witness has sufficient expertise to choose and apply a
methodology, that the methodology was reliable, that sufficient facts and data as required
by the methodology were used and that the methodology was otherwise reliably applied.
Id.; Daubert, 509 U.S. at 595; see also Dodge, 328 F.3d at 1222. The burden on the
proponent of the expert testimony is significant, as any inadequacy in the proof on any of
Rule 702's elements may render the entire opinion inadmissible. See Mitchell, 165 F.3d
at 782.
B.

Application
The Court has reviewed the evidence provided by the parties with the briefing of the

instant Motion, including Mr. Koziol’s expert report.2 Based on the information provided,
the Court concludes that Plaintiff has failed to establish that Mr. Koziol is qualified to
provide expert testimony on law enforcement procedures and use of force.
Defendants argue that Mr. Koziol has insufficient education and experience to serve
as an expert on the issues for which Plaintiff is offering his testimony. [#66 at 4-5]. They
point out that he has only a two-year associates degree in “general studies” and has not

2

Although not provided with the briefing on the instant Motion, the Court has also reviewed
Mr. Koziol’s Curriculum Vitae (“CV”), which was attached as an exhibit to Plaintiff’s Expert
Disclosures [#41], filed on December 16, 2011.

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worked in law enforcement for fifteen years. Id. They contend that although when he
worked in law enforcement he had some instructor roles, he never held a supervisory rank
such as sergeant, lieutenant or captain. Id. Additionally, they argue that he could not
identify a single complaint or lawsuit involving use of force issues against the Urbana,
Illinois Police Department where he worked for fifteen years. Id. Finally, they assert that
none of the four publications listed by Mr. Koziol on his CV pertain to law enforcement. Id.
Plaintiff responds that Mr. Koziol “has repeatedly been qualified as an expert in law
enforcement” in Colorado state and federal courts. [#71] at 4-5. Plaintiff contends that
Defendants’ Motion fails to include the portions of Mr. Koziol’s deposition transcript where
he addresses his prior experience as a qualified expert.3 Id. Plaintiff also claims that
Defendants misrepresented Mr. Koziol’s experience at the Urbana Police Department by
failing to acknowledge that he was the Senior Criminal Investigator. Id. Finally, Plaintiff
argues that Mr. Koziol acknowledged there were likely complaints of excessive force
against the department or one of its members while he was there. Id. He simply could not
remember specific cases. Id.
Regarding formal education, Mr. Koziol stated in his deposition that he earned a twoyear Associates Degree in general studies from Parkland Community College in Illinois in
1986. [#66-2] at 67-68. He has no other academic degrees. Id. at 68. He also stated that
in 1979 he was a student at the University of Illinois in Chicago for one year. Id. at 77.
Mr. Koziol acknowledged in his deposition that of the four publications listed on his
CV, none concerns law enforcement. Id. at 93. Rather, the publications pertain to motor

3

Plaintiff fails to attach any portion of Mr. Koziol’s deposition to the Response. Thus, the
Court has reviewed only those portions of the deposition attached to the Motion and the Reply.

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vehicle topics including break dive test data, critical data sources in commercial vehicle
crashes, trucks and trucking, and fleet safety. Id. at 93; [#41-1] at 40.
Likewise, the other categories on Mr. Koziol’s CV reflect a heavy emphasis on
accident reconstruction and other motor vehicle related topics. Id. at 36-40. For example
under “Education and Registrations,” Mr. Koziol lists numerous conferences and training
seminars, most of which involve motor vehicle topics. Id. at 36-37. The police topics, the
most recent of which was in 1996, relate to a number of different issues including
investigation of sex crimes, blood pattern interpretation, intelligence seminar, gang seminar,
homicide investigation and others. Id. Although the list fails to provide a summary of what
was covered, nothing on the list appears to pertain directly to the use of force by law
enforcement officers, the primary subject on which Mr. Koziol intends to testify in this case.
The only arguably relevant courses or seminars listed are Patrol Strategies and Tactics in
1986, Field Training Officer Certification in 1985 and Basic Law Enforcement in 1983.
Plaintiff, however, fails to explain in the Response how these, or any other seminars or
classes listed on Mr. Koziol’s CV, qualify him to testify as a law enforcement procedures
and use of force expert in this case.
Plaintiff’s primary emphasis in the Response is that Mr. Koziol “has repeatedly been
qualified as an expert in law enforcement procedure” in Colorado courts. [#71] at 4.
However, Mr. Koziol’s “Trial, Hearing & Deposition Testimony List” which lists cases for
which he was retained between 2007 to 2011, provides no description of the cases or the
subject of his testimony. [#41-1] at 42. Moreover, Defendants challenge Plaintiff’s assertion
in their Reply that he has been repeatedly qualified as a law enforcement expert.
Defendants asked Mr. Koziol in his deposition whether he was engaged as a law
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enforcement expert in any of the cases on the list. [#72-1] at 99. He initially responded that
he didn’t know if “any of these were as a law enforcement expert.” Id. He then testified
that one was a use of force case involving the use of impact weapons and tasers, issues
not present in this case. Id. at 100. He acknowledged, however, that although he gave a
deposition in that case, there was no trial testimony as the case settled before trial. Id. at
101.
Mr. Koziol was subsequently asked whether there were any times that he was
actually “offered and accepted for testimony as an expert in law enforcement use of force
at trial.” [#72-1] at 186. Mr. Koziol referred to a case from 2003 or 2004 in which he states
that he testified at trial. [#72-1] at 187. He testified that it was a civil rights case and
identified it as Barry Floyd vs. City of Loveland, Colorado. Id. He then testified that this
was the only time that he was offered and recognized as an expert in any Colorado court
regarding the use of force by a police officer. Id. at 190.
Upon conducting its own search of the Federal District Court of Colorado docket, the
Court located a case in which a plaintiff named Barry J. Floyd brought an action against the
City of Loveland, Colorado. See 99-cv-02102-CAB-PAC. The case was set to go to trial
on July 7, 2003, but the trial was vacated as a result of a settlement. See id. at Doc. No.
136. Although the limited information provided by the court docket cannot confirm that this
is the same matter for which Mr. Koziol claims he gave trial testimony, the time frame and
the parties are the same.4

4

The Court’s search also identified two other matters involving “John Koziol” in an expert
witness capacity. In the first, a District Court Judge recognized Mr. Koziol as an expert in the field
of accident reconstruction and allowed him to render his opinion in that field. See Neiberger v.
FedEx Ground Package System, Inc., No. 1:04-cv-00230-WDM-MEH, 2007 WL 4730631, at *1

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Regardless, at best, Mr. Koziol has been recognized only once by a Colorado court
as an expert on the subject of use of force by a police officer. Plaintiff’s assertion in the
Response that he has “repeatedly been qualified” as an expert in law enforcement
procedure is unsupported by Mr. Koziol’s own testimony.
As set forth above, Plaintiff bears the burden of establishing that Mr. Koziol is
qualified to testify as an expert in law enforcement procedure and use of force. Based on
the information presented, the Court finds that Plaintiff has fallen well short of meeting that
burden. Although certain items on Mr. Koziol’s CV arguably relate to expertise in those
fields, Plaintiff presents nothing to explain how. The CV merely contains merely lists of
various seminars, trainings and certifications, but Plaintiff provides no explanations of the
content covered or how they establish expertise in the subjects at issue. Admittedly, the
Court has received only those portions of Mr. Koziol’s deposition testimony that Defendants
attached to the Motion and Reply. Plaintiff, however, provided no additional deposition
testimony in the Response despite claiming Defendants intentionally left relevant portions
out. For the foregoing reasons, the Court finds that Plaintiff has failed to show that Mr.
Koziol is qualified by “knowledge, skill, experience, training, or education” to render an
opinion on law enforcement procedure and the use of force. See Fed. R. Evid. 702.
Having determined that Mr. Koziol is not qualified to provide expert testimony on the
subjects for which he has been identified as an expert, the Court need not address whether
his opinions are reliable or relevant. See Yeley-Davis, 632 F.3d at 684.

(D.Colo. Feb. 26, 2007). In the second, a motion to exclude Mr. Koziol’s testimony as an expert
witness was granted, though the subject of his testimony is not addressed in the order. See
Haynes v. City of Gunnison, No. 1:00-cv-01119-JLK-BNB, 2002 WL 34382905, at *1 (D.Colo.
March 4, 2002).

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III. Conclusion
For the reasons set forth above,
IT IS HEREBY ORDERED that the Motion [#66] is GRANTED and that Mr. Koziol
is excluded as an expert witness in this matter.
Dated: October 15, 2012

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