Estate of James Strong Jr., The et al v. City of Northglenn, Colorado, The et al

Filing 156

ORDER Granting in Part and Denying in Part 119 Defendant's Rule 702 Motion to Exclude Expert Testimony. ORDEERED by Judge William J. Martinez on 7/19/2019.(angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1276-WJM-SKC
ESTATE OF JAMES STRONG, JR.,
Plaintiff,
v.
JASON SCHLENKER,
Defendant.

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S RULE 702 MOTION TO EXCLUDE EXPERT TESTIMONY

This civil rights action arises out of the shooting death of James Strong, Jr., in his
home during the execution of a no-knock arrest warrant on May 28, 2015. Plaintiff
Estate of James Strong, Jr. (“Plaintiff”), has one remaining claim under 42 U.S.C.
§ 1983 against Jason Schlenker (“Defendant”) for use of excessive force in violation of
the Fourth Amendment. (ECF No. 33 ¶¶ 61–72.)
Currently before the Court is “Defendants’ Motion to Exclude Expert Testimony
Pursuant to Fed. R. Evid. 702” (the “Motion”). (ECF No. 119.) 1 In the Motion,
Defendant seeks to limit Plaintiff from offering certain opinions at trial from Plaintiff’s
designated expert, James George Mosher. For the reasons explained below,
Defendant’s Motion is granted in part and denied in part.

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The Motion was filed when Northglenn, Colorado Police Officer Nicholas Wilson was
still a Defendant in the case. He has since been voluntarily dismissed from this action. (ECF
Nos. 123 & 129.)

I. BACKGROUND
The Court has previously set forth the factual background and allegations in this
case in some detail, including in its Order Granting in Part and Denying in Part the
Motion for Summary Judgment. (See ECF No. 121.) Familiarity with that factual
background is presumed.
In summary, Defendant was part of a SWAT team that executed a no-knock
warrant on Strong’s home on May 28, 2015. (ECF No. 88 at 6, ¶ 10.) Members of the
SWAT team were informed that firearms would likely be present and they should be
prepared for the occupants to be armed. (Id. at 7, ¶ 10.) As the SWAT team entered
the house, officers detonated flash-bang devices outside the home and, contrary to
normal procedure, did not break any windows prior to entering the residence. (Id. at 7,
¶ 11.) The SWAT team members shouted “police, search warrant” and “show me your
hands.” (Id. at 9, ¶ 19.) A loudspeaker outside the hom e also identified those on the
scene as the police. (Id.; ECF No. 88-5 at 4, ¶ 14.)
Strong and his partner, Lanhisha Richmond, were asleep in their bedroom when
the police entered the home. Richmond stated that she did not hear the of ficers identify
themselves as law enforcement. (ECF No. 99-5 at 253.) As Officer Wilson nudged
open the door to Strong and Richmond’s bedroom, Strong immediately fired two shots
at close range. He later fired a third shot at Wilson. Wilson and Thornton Police
Officer Schlenker returned fire. When the shooting ceased, Wilson had been hit
several times. (ECF No. 88-5 at 6–7, ¶¶ 24, 26; ECF No. 98-1 at 3.) Wilson ultimately
fired 15 shots and Schlenker fired 11. (ECF No. 99-3 at 175; ECF No. 99-2 at 173.)

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Strong had more than 20 bullet wounds, include six gunshot wounds to the head and
neck area, and did not survive his injuries. (ECF No. 98-5 at 2.)
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). Adm ission
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).
While an expert witness’s testimony must assist the jury to be deemed
admissible, Fed. R. Evid. 702(a), it may not usurp the jury’s fact-finding function. See
Specht v. Jensen, 853 F.2d 805, 808 (10th Cir. 1988). “Expert testimony which does
nothing but vouch for the credibility of another witness encroaches upon the jury’s vital
and exclusive function to make credibility determinations, and therefore does not assist
the trier of fact as required by Rule 702.” United States v. Adams, 271 F.3d 1236, 1245
(10th Cir. 2001) (internal quotation marks omitted). Moreover, “a proposed expert’s
opinion that a witness is lying or telling the truth might be inadmissible pursuant to Rule

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702 because the opinion exceeds the scope of the expert’s specialized knowledge and
therefore merely informs the jury that it should reach a particular conclusion.” Id.
(internal quotation marks omitted). United States v. Leach, 749 F.2d 592, 600 (10th
Cir. 1984) (resolving conflicts in the evidence and reaching ultimate conclusions of fact
are both functions exclusively reserved to the trier of fact). The line between what is
helpful to the jury and what intrudes on the jury’s role as the finder of fact is not always
clear, but it is well-settled that “[a]n opinion is not objectionable just because it
embraces an ultimate issue.” Fed. R. Evid. 704.
Ultimately, “the rejection of expert testimony is the exception rather than the
rule.” Fed. R. Evid. 702 advisory committee’s note. “[T]he trial court’s role as
gatekeeper is not intended to serve as a replacement for the adversary system. . . .
Vigorous cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
595 (1993)).
In addition to analysis under Rule 702, an expert’s proposed testimony must be
relevant and otherwise 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) (brackets in original).

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III. ANALYSIS
A.

Stipulated Exclusions of Mosher’s Opinions
The parties have agreed that Plaintiff will not offer Mosher’s opinions on the

following topics at trial:
•

The investigation which resulted in the search warrant;

•

The timing of execution of the warrant;

•

The propriety of executing the warrant at a time when children were
present in the home;

•

“Conflicting” information about the timing of the announcements from the
SWAT vehicle outside the house;

•

“Conflicting” information about the timing of the use of flash-bang devices
by the SWAT team; and

•

The post-shooting investigation.

(ECF No. 119 at 2; ECF No. 122 at 2.) Consistent with the parties’ agreement, the
Court will not allow Plaintiff to use Mosher to offer opinions on those topics at trial.
B.

Disputed Mosher Opinions
Defendant also seeks to exclude Mosher’s opinions on the following topics:
•

Conflicting evidence about the nature of the announcements made inside
the house, and Mosher’s opinions as to the type and frequency of the
announcements made inside the house;

•

Conflicting evidence about the movements of the SWAT team inside the
house;

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•

Whether additional rounds fired by Wilson placed others in the home at
risk; and

•

Whether tactics used by Wilson put him in harm’s way.

(ECF No. 199 at 6–9.) The Court notes that the final two opinions that Defendant seeks
to exclude relate solely to Wilson’s actions and decisions. Defendant does not seek to
exclude Mosher’s opinions about the reasonableness of the rounds fired by Defendant,
the potential threat of Defendant’s shots to others in the home, or whether the tactics
used by Defendant put him in harm’s way.
Plaintiff’s Response to the Motion does not address whether expert testimony on
those two topics should be allowed, nor that it has any relevance to understanding
Defendant’s conduct. (See ECF No. 122 at 5–7.) Arguments not raised or
inadequately developed in a brief are waived. United States v. Hunter, 739 F.3d 492,
495 (10th Cir. 2013) (deeming waived an argument inadequately developed in opening
brief); Thompson R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1148 n.3
(10th Cir. 2008) (same). Plaintiff’s failure to develop an argument in its Response
amounts to a confession of that part of the Motion. Moreover, as noted above, Wilson
was dismissed from this suit after the Motion was filed, so Mosher’s testimony on topics
pertaining solely to the reasonableness of Wilson’s actions are of diminishing
relevance. Garcia, 635 F.3d at 476.
The Court thus grants Defendant’s Motion as to these two topics. Mosher will
not be permitted to offer his opinion testimony on whether the additional rounds fired by
Wilson placed others in the home at risk or whether the tactics used by Wilson put him
in harm’s way.
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1.

Opinion on Conflicting Evidence of Announcements Made Inside the
House

Defendant seeks to exclude “conflicting evidence about the nature of the
announcements made inside the house” and “Mosher’s opinions as to the type and
frequency of the announcements made inside the house” as irrelevant and of no use to
the jury. (ECF No. 119 at 6.)
Mosher’s report states that it is “unclear [i]f the entry team announced their
presence during entry and up until the point where the shooting occurred.” (ECF
No. 119-1 at 4.) Along with other alleged flaws in the execution of the warrant, Mosher
opines that “the operational tactics utilized by these personnel are not indicative of a
well-trained or well supervised tactical team.” (Id. at 5.) At his deposition, Mosher
stated that, in his opinion, announcements “should have been constant, continuous up
until the point of where there was a gunfight.” (ECF No. 119-2 at 8.) While he could
not point to a nationally recognized “tactical standard” that required such
announcements, in his experience, continuous or multiple announcements are
appropriate, if not a best practice, when executing a warrant. (Id. at 8–9.)
The Court will not, at this time, exclude Mosher’s opinions on the inadequacy or
insufficiency of the announcements (if any) by the police. Such opinion testimony on
the appropriateness of police tactics is directly relevant to whether Defendant acted
reasonably under the circumstances, or unreasonably contributed to the need to use
deadly force. See Davies v. City of Lakewood, 2016 WL 614434, at *2 (D. Colo. Feb.
16, 2016) (“expert testimony regarding the standard of care applicable to police officers
in such areas as police tactics [and] use of force . . . is relevant to excessive force
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claims”). Such opinion testimony will assist the jury in understanding standard police
tactics. Id. Defendant may, of course, cross examine Mosher on the basis for his
opinion that continuous announcements are appropriate.
However, Mosher is not a fact witness in the case, and Plaintiff may not use
Mosher as a vehicle by which it will establish the facts vel non of whether the police
made announcements once in the house, or what the police announced. See Adams,
271 F.3d at 1245. Richmond and the officers present at the scene are the appropriate
witnesses to present evidence on these facts. Mosher may testify regarding his factual
assumptions, as long as he presents them as such, rather than as his opinion on or
conclusion of fact. However, at trial, the Court would entertain an objection if it appears
that Plaintiff is using Mosher as a purported fact witness to establish his “opinion” that
reports of various individuals are in conflict over certain facts, rather than offer an
expert opinion on the reasonableness of the police tactics used in this incident.
2.

Opinion on Conflicting Evidence About SWAT Team Movements Inside
the House

Defendant also seeks to exclude Mosher’s “opinion” that “the movements inside
the house as described by the SWAT team are ‘conflicting.’” (ECF No. 119 at 6.)
Plaintiff responds that the “different accounts of the movements and positioning of
[Defendant]” are “relevant to what [Defendant] knew of should have known as he
entered into Mr. Strong’s bedroom and repeatedly shot” Strong. (ECF No. 122 at 6.) It
does not appear that Mosher offers an opinion that the officers were not in proper
positions or that the location of any officer somehow unreasonably contributed to an
allegedly unreasonable use of force.
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“Under the relevance prong of the Daubert analysis, the court must ensure that
the proposed expert testimony logically advances a material aspect of the case. The
evidence must have a valid scientific connection to the disputed facts in the case.”
Norris v. Baxter Healthcare Corp., 397 F.3d 878, 884 n.2 (10th Cir. 2005). Here,
Mosher’s opinion—in essence, that Defendant could not have seen Strong’s muzzle
flash—is not one that relies on Mosher’s expertise on police tactics to advance a
material aspect of the case.2 Rather, Mosher’s “opinion” about conflicting evidence and
the location of Defendant is an “opinion” by an expert that impermissibly weighs the
evidence based on the credibility of Defendant and others witnesses. As discussed
above, expert testimony on the credibility of witnesses does not assist the trier of fact
and indeed infringes on the jury’s job of determining credibility. Adams, 271 F.3d at
1245. The Court will thus exclude Mosher’s “opinion” on the factual matters relative to
the locations and movement of the SWAT team members throughout the house, and
his “opinion” that, as a factual matter, Defendant could not have seen Strong fire a
weapon.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS that Defendant’s Motion to
Exclude Expert Testimony Pursuant to Fed. R. Evid. 702 (ECF No. 119) is GRANTED
IN PART and DENIED IN PART, as more fully set forth above.

2

Mosher is not presented as a ballistics expert.

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Dated this 19 day of July, 2019.
BY THE COURT:

William J. Martínez
United States District Judge

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