Valdez v. Derrick, III et al

Filing 148

ORDER granting in part and denying in part Plaintiff's Motion to Exclude Opinion Testimony 113 , by Judge William J. Martinez on 09/26/2019. (wjmlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0109-WJM-STV
MICHAEL VALDEZ,
Plaintiff,
v.
ROBERT MOTYKA, Jr., Denver Police Officer, in his individual capacity;
CITY AND COUNTY OF DENVER, a municipality,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S RULE 702 MOTION

Plaintiff Michael Valdez (“Valdez”) was shot in the back by Denver police officer
Robert Motyka, Jr. (“Motyka”), at the end of a car chase in which occupants of the car
Motyka was pursuing fired at Motyka and struck him in the shoulder. Valdez claims that
Motyka’s gunshot constituted excessive force in violation of the Fourth Amendment.
Currently before the Court is Valdez’s Motion to Exclude Opinion Testimony.
(ECF No. 113.) For the reasons explained below, the Court grants this motion in part as
to Defendants’ medical expert, Dr. Downs, and grants it in full as to Defendants’ crime
scene reconstruction expert, Mr. Martin.
I. BACKGROUND
The Court draws the following facts from the summary judgment record, which
clearly shows where the parties agree and disagree regarding the relevant facts. (See
ECF Nos. 82, 92, 104.)

On January 16, 2013, Denver police received reports of a domestic violence
incident and two shooting incidents, all involving a red Dodge pickup truck. The truck
was spotted later in the day and a police chase ensued through the streets of north
Denver. Valdez was a passenger in the truck.
One of the police pursuers, Motyka, was fired on from the truck. He says he saw
two people from the truck firing at him, one of whom he is certain was Valdez. One of
the bullets struck Motyka in the left shoulder, causing him to pull over and assess his
injury momentarily, but he eventually joined other officers who had continued the chase.
The chase ended at Columbus Park when the truck collided with a tree on the
edge of the park. The chasing officers, including Motyka, took up positions behind their
cruisers, or the doors of their cruisers, some fifty to sixty feet behind the truck, with guns
drawn.
Occupants of the truck began exiting. One of them fled into the park. Valdez
says that he and a female occupant both exited the passenger side of the truck (the
driver’s side was smashed) and laid on the grass there in a prone position, with Valdez
placing his hands on or above his head. Valdez says that, in this position, Motyka and
another officer, John Macdonald, opened fire on him, with Motyka in particular
motivated by revenge. Motyka says that Valdez did not lay on the ground, but got out of
the truck and then began reaching back into the truck, which Motyka perceived as an
action to retrieve the gun with which Valdez had been shooting at him. Motyka
therefore opened fire, and Macdonald, who arrived seconds later, opened fire because
Motyka opened fire.
One bullet, later established through ballistic evidence to have been fired by

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Motyka, struck Valdez in the lumbar region, shattering a portion of his spine and
temporarily paralyzing him. Another bullet tore off his left ring finger. No evidence
could confirm who fired that bullet.
This lawsuit was presided over by Senior U.S. District Judge Richard P. Matsch
until his passing in May 2019. In April 2019, Judge Matsch ruled that Macdonald was
entitled to summary judgment, but that there were material disputes of fact preventing
summary judgment as to Motyka and Denver. (ECF No. 124.) Defendants appealed
the denial of qualified immunity as to Motyka. (ECF No. 128.) By order filed earlier
today, the Court certified that appeal as frivolous pursuant to Stewart v. Donges, 915
F.2d 572 (10th Cir. 1990). (ECF No. 147.) Accordingly, the Court has jurisdiction to
move forward with this lawsuit.
II. LEGAL STANDARD
A district court must act as a “gatekeeper” in admitting or excluding expert
testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission
of expert testimony is governed by Rule 702, which provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert’s scientific,
technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The proponent of the expert testimony bears the burden of proving
the foundational requirements of Rule 702 by a preponderance of the evidence. United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc).
An expert’s proposed testimony also must be shown to be relevant and otherwise
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admissible. See Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 588 n.7 (10th
Cir. 2016). To be relevant, expert testimony must “logically advance[] a material aspect
of the case” and be “sufficiently tied to the facts of the case that it will aid the jury in
resolving a factual dispute.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011)
(alteration in original).
III. ANALYSIS
A.

Dr. Downs
Dr. J.C. Upshaw Downs is a medical doctor and forensic pathologist with

extensive experience in areas such as identifying remains, determining cause of death,
and evaluating certain kinds of causes of death. (See ECF No. 121-7.) Defendants
have retained him mostly to provide a report about the angle at which Motyka’s shot
struck Valdez in the back, therefore providing information about Valdez’s body position
at the time of the shot. (See ECF No. 121-9.)
1.

Credentials

Valdez first asserts that “Dr. Downs possesses no expertise in firearms, bullet
trajectory, ballistics, or crime scene reconstruction.” (ECF No. 113 at 21.) Valdez
therefore attacks Dr. Downs’s credentials to testify as an expert on those subjects. (Id.
at 21–22.)
Dr. Downs’s CV does not explicitly call out any experience in bullet trajectory (the
most relevant area of inquiry), although perhaps that is subsumed within some of his
publications, many of which bear generic titles such as “Forensic Medicine,” “Death
Investigation,” and “The Autopsy.” (ECF No. 121-7 at 6–7.) However, as will become
clear below, the only expertise Dr. Downs needs in this case to opine competently on
bullet trajectory is the ability to understand what he is seeing on an x-ray and the ability
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to operate the software through which he viewed x-rays of Valdez taken not long after
he was shot.
Dr. Downs reaches an opinion about the angle at which Motyka’s shot struck
Valdez in the back by calculating the trajectory the bullet took through Valdez’s body.
The entry wound was in Valdez’s lumbar region, just to the right of his spine, as shown
by physical evidence (Valdez’s clothing) and x-rays. (ECF No. 121-9 at 2.) The bullet
then traveled through a part of his spine, creating bone and bullet fragments, and
continued to travel through “internal tissues” until it came to rest just under the skin next
to the left side of the pelvis. (Id.)
Calculating the angle of travel as compared to a level line created by the top of
both sides of the pelvis (in other words, a two-dimensional perspective looking
downward at a body lying flat) was relatively simple for Dr. Downs due to top-down
x-ray imagery and other evidence clearly showing both the entry wound and the bullet in
its resting place, coupled with the x-ray viewing software’s ability to measure angles.
(Id. at 3.) This angle was 30–35 degrees. (Id.)
Calculating the angle of travel as compared to looking at the body from the side
was more difficult for Dr. Downs because no side-perspective x-ray was taken before
the bullet was removed. (Id.) But, using the capabilities of the x-ray viewing software to
align the top-down view (where the bullet is visible) with the side view and to match the
scale of the two images, and using the bullet fragments near the spine (visible in both xrays) as a means of double-checking the alignment and scale, Dr. Downs was able to
approximate where the bullet would have been seen in the side view and, in turn, to
estimate that the bullet traveled at a 40–50 degree downward angle from that

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perspective. (Id. at 3–4.)
Valdez does not attack Dr. Downs’s qualifications to understand what he is
seeing when he looks at the x-rays, nor his qualifications to manipulate the x-ray
viewing software to obtain the angle measurements. Accordingly, Valdez’s challenge to
Dr. Downs’s qualifications fails.
2.

“Anatomic Position”

Valdez next attacks Dr. Downs’s summary of his two angle-measurement
conclusions, specifically its reference to “anatomic position”:
The above [calculations] establish[] that with [Valdez’s] body
in anatomic position, the shot entering the back would have
been traveling at approximately a 30–35 degree downward
angle (from right to left in anteroposterior view) and a 40–50
degree downward angle (from the back to front in lateral
view).
(ECF No. 121-9 at 4.) Valdez argues that “anatomic position”—which he understands
to be “body standing erect, hands to [its] sides, in a neutral position”—is completely
divorced from the facts of the case because there is no evidence that Valdez was
standing in that position when he was shot. (ECF No. 113 at 20–21, 23–24.)
Valdez misreads the significance of Dr. Downs’s opinion. As Dr. Downs explains
in a supplemental declaration—which Valdez does not challenge as, e.g., untimely
disclosed—“[r]eference to the anatomic position is a standard practice in the field of
forensic medicine. It allows one reviewing a pathologist’s findings to understand the
trajectory of a bullet, or other wound, in reference to a fixed orientation of the body.”
(ECF No. 121-8 ¶ 12.) Thus, he says, “I did not assume that Mr. Valdez was standing
erect with his hands to his sides in an anatomically neutral position at the time he was
shot.” (Id.)

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In reply, Valdez insists that any opinion based on angles measured in an
anatomically neutral position will mislead the jury. (ECF No. 123 at 5.) Valdez does not
explain why, however, and his own theory of the case shows the possible relevance of
Dr. Downs’s measurements, depending on the view of the facts the jury accepts. In his
amended complaint, Valdez alleges that he was shot “[w]hile prone on the ground with
his face in the grass and his hands extended overhead . . . as he tried to shield his head
from gunshots.” (ECF No. 11 ¶ 21.) Valdez also testified at his deposition that “the rest
of [his] body was on the ground,” meaning everything but his arms and hands. (ECF
No. 92-10 at 41.) Thus, even if the jury accepts that Valdez’s arms and shoulders were
not in an anatomically neutral position, there is at least some evidence that his lower
back and hips were, given his claim that he was lying prone.
In briefing, Valdez speculates that “lifting his arms and hands naturally would
arch his back and shift his torso, chest, back, shoulders, legs, and other body parts.”
(ECF No. 113 at 23.) All of this is possible, of course, depending on the way Valdez
moved his arms and shoulders, but that is irrelevant. On the record before the Court,
there is enough evidence for a jury to accept at least that Valdez’s lower back and hips
were in a neutral position as Valdez lay prone on the ground. Thus, Dr. Downs’s angle
measurements are grounded in a set of facts that the jury could accept, and his
testimony is therefore helpful to understanding the case.
3.

Comparison to Valdez’s Story

Dr. Downs report next compares his angle measurements to Valdez’s claims
about the position and orientation of his body. Valdez testified at his deposition that his
“feet were pointing towards however far the police car was from me,” and that his head
“was pointing towards [a] sidewalk” that was to the right of both him and Motyka. (ECF
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No. 92-10 at 42.) In other words, he appears to be saying that the soles of his feet were
facing Motyka, although perhaps at an angle. Dr. Downs opines that such a body
position is not consistent with the bullet’s trajectory through Valdez’s body:
With that reported location and position of the subject’s
body, the estimated angle of the shot within the body could
not physically have happened with the shooter positioned as
per the officer’s statements and scene evidence. The
subject’s account cannot be true because if it were, the shot
within his body would have been directed towards his head.
The subject’s description of this shot having been fired from
behind him . . . while he was prone on the ground, with his
head towards vehicle front, is inconsistent with the medical
and physical evidence.
If the shot in question were to have been fired from a
position behind . . . the subject, the shot would have been
directed . . . sharply upward within the subject’s prone body
[toward his head]; the shot was instead directed downward
within the subject’s body [toward his hip], refuting this claim.
(ECF No. 121-9 at 5–6.)
Valdez brings essentially two attacks on this opinion, which the Court will
address in turn.
a.

Factual Basis

Valdez argues that Dr. Downs starts from an erroneous factual assumption about
the orientation of his (Valdez’s) body. (ECF No. 113 at 24.) Valdez says that
Dr. Downs is relying on “factually inaccurate stick-figure drawings” that Valdez drew at
his deposition to show his position and orientation relative to the truck and the sidewalk.
(Id.) Those drawing show that, while allegedly prone on the ground, Valdez’s feet would
have been facing mostly in the direction of Motyka, although perhaps a little to Motyka’s
left. (See ECF No. 121-9 at 6; see also ECF No. 121-3 at 7.) Thus, Valdez is trying to
distance himself from his drawings, and he faults Dr. Downs for relying on them. He

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says he “never claimed to the crude stick figure drawings were accurate,” and that they
are, in fact, “inaccurate estimations and cannot be relied on as scientific data.” (ECF
No. 113 at 15.)
Valdez, however, indisputably made the drawings. The Court is aware of no
principle—and Valdez cites none—that a deponent must specifically testify that
drawings made at a deposition are accurate. Presumably the oath that a deponent
takes to tell the truth requires the deponent, if asked to illustrate something, to do it as
accurately as the deponent’s skills allow in the context of the question being asked.
Defendants’ counsel asked Valdez to make a simple drawing of where he and another
occupant of the vehicle were laying relative to the truck and the nearby sidewalk, and
Valdez complied. (See ECF No. 92-10 at 49–52.) It is unclear why Dr. Downs should
be faulted for failing to predict that Valdez would later disavow the accuracy of his
drawings. In truth, Valdez himself has never disavowed the drawings. The claim that
the drawings are “inaccurate” is argument of counsel only. (See ECF No. 113 at 5, 15–
16, 24–25.)
Moreover, regardless of Valdez’s artistic skills, the drawing is generally
consistent with his verbal testimony that his “feet were pointing towards however far the
police car was from me,” and that his head “was pointing towards the sidewalk.” (ECF
No. 92-10 at 42.) Accordingly, Dr. Downs’s opinions do not lack a factual basis for
assuming that Valdez’s feet were generally oriented toward Motyka.
b.

Credibility Determination

Valdez also attacks Dr. Downs’s opinion as one about credibility. (ECF No. 113
at 22.) Dr. Downs does not directly opine on credibility, i.e., whether Valdez is a
believable witness. But he does appear prepared to testify that the physical evidence is
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“inconsistent with” or “refut[es]” Valdez’s theory of the case, or that Valdez’s “account
cannot be true.” (ECF No. 121-9 at 5, 6.)
Counsel for Defendants may properly ask Dr. Downs questions to the effect of, “If
a person is prone on the ground with his feet generally pointing toward a police officer,
and the police officer fires his weapon, striking the person in the back in the place where
a bullet struck Mr. Valdez, would you expect to see the bullet come to rest in the
person’s left hip?” To such a question, Dr. Downs could appropriately give his opinion
that one would expect to see the bullet come to rest (or perhaps exit) through some
place higher up on the person’s body. Similarly, counsel for Defendants may elicit
Dr. Downs’s opinions about the estimated angle at which the bullet traveled through
Valdez’s body and whether that angle could be achieved in a person oriented towards a
gun in a manner that Valdez claims to have been oriented. However, the Court finds it
at least unfairly prejudicial, see Fed. R. Evid. 403, to permit Dr. Downs to testify directly
that Valdez’s theory of the case cannot be true, or is refuted by the physical evidence,
or words to that effect. Accordingly, this portion of Valdez’s motion is granted in part
and denied in part.
c.

“Consistent With . . . Upright Position”

Finally, as relevant here, Dr. Downs opines that
The documented trajectory of the projectile within the
subject’s body is consistent with the subject having been
struck by the bullet while in an upright position (standing or
kneeling). This is consistent with the multiple other bullet
strikes on the passenger side of the vehicle. This would
account for the anatomically downward and leftward track
within the subject’s body and could be explained by the
subject reaching towards the vehicle cabin when the injury
was sustained. Such a position would also be consistent
with the left finger injury occurring in close temporal
proximity . . . .
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(ECF No. 121-9 at 7.) The Court agrees with Valdez that this particular opinion is not
supported by sufficient facts or data. It comes essentially out of nowhere. Presumably
many conceivable positions are consistent with the bullet’s trajectory, and so it appears
that Dr. Downs is saying only that his measurements do not rule out Motyka’s theory of
the case. But Dr. Downs does not explain why that particular theory, among many, is
more or less likely based on the physical evidence.
In addition, there is an unexplained inconsistency. Considering the relative
locations of Valdez, Motyka, and the truck, the only way that a leftward-tracking bullet
entry wound on the right side of the lower back could be consistent with reaching back
into the cab of the truck is if Valdez kept his back to the truck and reached backward,
essentially blindly—a highly unnatural position.
For these reasons, the Court finds that this opinion is inadequately supported
and therefore inadmissible. 1
B.

Mr. Martin
Mr. Thomas L. Martin is a crime scene reconstruction expert. The Court need

not delve into his credentials, and the Court has no doubt of Mr. Martin’s expertise in
these matters. For the reasons explained below, however, his proposed opinions are
inadmissible for reasons independent of his expertise.
1.

“The fact that Michael Valdez’s DNA was not identified on any of the
firearms recovered from the pickup truck does not necessarily mean
Michael Valdez was not handling the gun and firing at police.” (ECF No.
121-2 at 18.)

Mr. Martin’s opinion appears to be a sort of preemptive rehabilitation of Motyka.
1

To the extent Valdez means to argue that any portion of Dr. Downs expert testimony
that the Court will admit should nonetheless be excluded under Rules 402 or 403, the Court
overrules that objection.

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Motyka is certain that one of the people shooting at him from the Dodge pickup truck
was Valdez, but Valdez’s DNA was not found on any of the guns recovered from the
scene. Valdez is sure to point out as much, not only to support his story that he was not
one of the shooters, but also to suggest to the jury that Motyka’s account cannot be
believed. Therefore, Defendants have asked Mr. Martin to offer an opinion about the
significance of not finding DNA on any of the weapons.
Importantly, Mr. Martin’s opinion is not based on, e.g., the difficulty of recovering
usable DNA from metal firearms, 2 or some other information beyond the knowledge of a
lay jury. Rather, Mr. Martin points out that a left-hand glove was recovered from the
scene with a “bullet defect in the left ring finger”—the same finger where the second
bullet hit Valdez—and so perhaps Valdez had been wearing that glove while firing the
gun, and thereby preventing transfer of his DNA to the surface of the gun. (ECF No.
121-2 at 19.)
It is a matter of common sense that a glove could prevent DNA transfer, and so
the jury needs no expert testimony on that. As for the remainder of Mr. Martin’s opinion,
he is simply acting “as a mouthpiece for counsel,” which is not an appropriate use of
expert testimony. United States v. Rodriguez, 125 F. Supp. 3d 1216, 1252 (D.N.M.
2015). Counsel is free set up this theory regarding the left-hand glove through
evidence, questioning, and argument, but offering an expert to testify on it would usurp
the role of the jury.
2.

“There is no evidence that Lt. Mac[d]onald shot Michael Valdez.” (ECF
No. 121-2 at 20.)

Valdez’s challenge to this opinion is moot because it is now irrelevant in light of
2

The Court has heard such testimony in other cases.

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Judge Matsch’s grant of summary judgment to Macdonald. (See ECF No. 124 at 7–8.)
3.

“Plaintiff’s claim that he was lying face down on the ground with his face in
the grass when he was shot by police, is not consistent with the scene
evidence.” (ECF No. 121-2 at 20.) & “The path of the bullet that struck
Michael Valdez in the back does not reconcile with Mr. Valdez’s account
of the events.” (ECF No. 121-3 at 3.)

These opinions are largely derivative and duplicative of Dr. Downs’s bullet
trajectory analysis. Moreover, the opinions all come back to the premise that “[b]ullets
travel in straight lines.” (ECF No. 121-3 at 3.) A lay jury does not need an expert to
understand as much. If Mr. Martin takes the stand to say that bullets travel in straight
lines and therefore one should expect to see x, y, and z under various scenarios,
Mr. Martin would once again be acting as a mouthpiece for counsel. The inferences are
all well within the competence of a lay jury. Accordingly, Defendants’ counsel may set
up these theories for the jury’s consideration through questioning, argument, and
exhibits (including reasonable demonstrative exhibits), but Defendants may not present
Mr. Martin as a mouthpiece vouching for any theory.
* * *
For these reasons, Mr. Martin’s expert opinions are excluded in their entirety.
IV. CONCLUSION
For the reasons set forth above, Plaintiff’s Motion to Exclude Opinion Testimony
(ECF No. 113) is GRANTED IN PART and DENIED IN PART to the extent stated.

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Dated this 26th day of September, 2019.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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