Ellis et al v. Hobbs Police Department et al

Filing 256

MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs. The 188 Motion in Limine is DENIED. (ve)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________

BRANDON ELLIS,
JEREMY ARTIS, and
VASSHAWN ROBINSON,
Plaintiffs,
vs.

Case No. 2:17-cv-01011 KWR/GBW

HOBBS POLICE DEPARTMENT,
JASON HERRERA, CHAD WRIGHT,
SHANE BLEVINS, JEREMY KIRK,
MATTHEW BURLESON, JIMMY GRIMES,
CHRISTOPHER MCCALL, and J.J. MURPHY,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court upon Defendants’ Motion in Limine to Exclude
Expert Testimony of William S. Cooper, filed on November 21, 2019 (Doc. 188). Having
reviewed the parties’ pleadings and the applicable law, the Court finds that Defendants’ motion is
not well-taken and, therefore, is DENIED.
BACKGROUND
This case arises out of alleged racial discrimination in the Hobbs Police Department
(“HPD”) and retaliation for Plaintiffs’ opposition to racial discrimination within the Hobbs Police
Department. Plaintiffs, former HPD Officers, allege they were retaliated against for (1) opposing
or reporting HPD’s racial discrimination and (2) opposing alleged discriminatory police practices
against African Americans. Defendants include Hobbs Police Department, Chief McCall, and
several supervisors and officers.

Plaintiffs filed this case under 42 U.S.C. § 1981 and 1983, and the New Mexico
Whistleblower Protection Act. Plaintiffs’ complaint asserts the following claims:
Count I: New Mexico Whistleblower Protection Act
Count II: First Amendment Retaliation under § 1983; and
Count III: Racial Discrimination pursuant to § 1981.
Mr. Cooper is an expert in demographics. He has participated as an expert in many voting
redistricting cases.

Plaintiffs retained Mr. Cooper to provide an opine on whether HPD’s

enforcement of the pedestrian in the roadway statute had a disparate impact on minority
communities in Hobbs, New Mexico. Doc. 191 at 3. He opined that 82% of the pedestrians stops
under this statute occurred in communities with high minority populations. He formed his opinion
roughly as follows. When HPD officers stop an individual, they call in to dispatch. Plaintiffs
requested all CAD reports from Defendants for “each stop or callout for Pedestrian in the Roadway
for a two-year period.” Doc. 204 at 3. The call logs contained information including the alleged
violation at issue (pedestrian in the roadway) and location of the stop. Plaintiffs’ counsel put data
from these dispatch call logs in an Excel sheet. Mr. Cooper reviewed the Excel data and placed
these stops on a map that included demographic data.
Defendants filed a motion seeking to exclude Mr. Cooper as an expert witness. The parties
asserted that an evidentiary hearing is unnecessary and requested the Court rule on the papers.
Docs. 251, 252. Therefore, the Court considers the parties’ briefing and attached exhibits.
LEGAL STANDARD
Federal Rule of Evidence 702 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:

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(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 touchstone of admissibility under Rule 702 is helpfulness to the trier of
fact. See Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 648 (10th Cir. 1991).
The gatekeeping function involves a two-step analysis. Milne v. USA Cycling Inc., 575
F.3d 1120, 1134 (10th Cir. 2009). First, the Court must determine whether the witness may be
qualified as an expert. 1 To qualify as an expert, the witness must possess such “knowledge, skill,
experience, training, or education” in the particular field so that it appears that his or her opinion
rests on a substantial foundation and tends to aid the trier of fact in its search for the truth. LifeWise
Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004). “Rule 702 thus dictates a
common-sense inquiry of whether a juror would be able to understand the evidence without
specialized knowledge concerning the subject.” United States v. McDonald, 933 F.2d 1519, 1522
(10th Cir. 1991).
Second, the Court must determine whether the witness' opinions are reliable under the
principles set forth in Daubert and Kumho Tire. Ralston v. Smith & Nephew Richards, Inc., 275
F.3d 965, 969 (10th Cir. 2001). In Daubert, the Supreme Court identified five factors that may or
may not be pertinent in assessing reliability: (1) the theory or technique in question can be and has
been tested; (2) it has been subjected to peer review and publication; (3) it has a known or potential

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Defendants did not challenge Mr. Cooper’s qualifications as an expert. Doc. 188 at 3-4. This is likely because
Mr. Cooper is more than qualified to give the limited opinion he will provide in this case. The Court finds, based on
the unchallenged record, that Mr. Cooper possesses the “knowledge, skill, experience, training, or education” in
matters involving demographics and census data. He has been admitted as an expert in numerous similar cases. See
Doc. 204 at 4 n.1. Although those cases involved voting cases, his skills and experience are easily transferrable for
the limited scope of his opinion in this case.

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error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether
it has attracted widespread acceptance within a relevant scientific community. 509 U.S. at 593–
94. When assessing the reliability of a proposed expert's testimony, the Court may consider the
Daubert factors to the extent relevant, which will depend on the nature of the issue, the expert's
particular expertise, and the subject of his testimony. Kumho Tire, 526 U.S. at 150-51. “[W]hether
Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is
a matter that the law grants the trial judge broad latitude to determine.” Kumho, 526 U.S. at 139.
Rule 702 further requires that expert testimony is relevant. One aspect of relevance is that
the opinions have a sufficient factual basis and a reliable application of the methodology to the
facts. Daubert, 509 U.S. at 591.
Expert witnesses may testify about ultimate issues of fact, but an expert may not state legal
conclusions drawn by applying the law to the facts. United States v. Richter, 796 F.3d 1173, 1195
(10th Cir. 2015). Although an expert may not give an impermissible legal conclusion, an expert
may give testimony that embraces an ultimate issue so long as the expert’s testimony assists, rather
than supplants, the jury’s judgment. Id. (quoting United States v. Dazey, 403 F.3d 1147, 1171-72
(10th Cir. 2005)); United States v. Schneider, 704 F.3d 1287, 1293 (10th Cir. 2013) (stating that
Rule 704(a) allows expert opinion on an ultimate issue so long as he explains basis for any
summary opinion and does not simply tell the jury what result to reach). “Permissible testimony
provides the jury with the tools to evaluate an expert’s ultimate conclusion and focuses on
questions of fact that are amenable to the scientific, technical, or other specialized knowledge
within the expert’s field.” Richter, 796 F.3d at 1195.
Where an expert witness’s testimony is based on his experience, the expert witness must
explain how his experience leads to the conclusion reached, why that experience is a sufficient

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basis for the opinion, and how that experience is reliably applied to the facts. See United States v.
Nacchio, 555 F.3d 1234, 1258 (10th Cir. 2009) (quoting Fed. R. Evid. 702 advisory committee’s
note (2000)).
So long as the district court has enough evidence to perform its duty in assessing the
relevance and reliability of an expert’s proposed testimony, a hearing is not required. See United
States v. Call, 129 F.3d 1402, 1405 (10th Cir. 1997); See Goebel, 215 F.3d at 1087 (noting that a
Daubert hearing “is not mandated” and that a district court may “satisfy its gatekeeper role when
asked to rule on a motion in limine”). The proponent of the expert bears the burden by a
preponderance of the evidence to establish that the requirements for admissibility have been met.
See Nacchio, 555 F.3d at 1251.
Although the Court is required to conduct a Daubert examination of all experts before it,
it need only expressly address the specific objections before it. United States v. Avitia-Guillen,
680 F.3d 1253, 1259 (10th Cir. 2012) (“When a party fails to object to an expert's methodology,
the district court need not make explicit findings.”), citing United States v. Velarde, 214 F.3d 1204,
1209 n.3 (10th Cir.2000) (noting the defendant did not challenge the doctor's “credentials,
expertise, or qualifications to testify as an expert”); Macsenti v. Becker, 237 F.3d 1223, 1233 (10th
Cir. 2001) (specific findings on the record only required on party’s objection); Goebel v. Denver
& Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 n.2 (10th Cir. 2000) (when no objection is raised,
district courts are not required to make “explicit on-the-record rulings” and, “we assume that the
district court consistently and continually performed a trustworthiness analysis sub silentio of all
evidence introduced at trial.”).
DISCUSSION

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Defendants argue that Mr. Cooper should be excluded as an expert in this case on five
separate grounds. Doc. 188 at 3-6. The Court concludes that these arguments generally attack the
weight of the evidence and the inferences Plaintiffs will take from Mr. Cooper’s testimony, but
not Mr. Cooper’s opinions themselves. To the extent there are errors in Mr. Cooper’s report, the
Court finds they do not merit exclusion.
Plaintiffs assert they do not offer Mr. Cooper to testify about whether any of the stops were
unconstitutional. The Court agrees with this assessment. Mr. Cooper will testify that 82% of the
stops in Hobbs for violation of the pedestrian in the roadway statute occurred in the minority
communities. Mr. Cooper received data for all dispatch logs for stops involving alleged violation
of the “Pedestrian in the Roadway” statute. This dispatch logs included location data. Mr. Cooper
arrived at his conclusion by plotting the pedestrian stops on a map along with the demographics
of the area where the stop occurred.
Therefore, Mr. Cooper does not estimate the number of minority stops that occurred.
Rather, he estimates that 82% of stops for violation of the pedestrian in the roadway statute
occurred in communities with higher minority populations.
Plaintiffs need not show that Defendants in fact engaged in discriminatory policing. In
order to prevail on some of their retaliation claims, Plaintiffs must show that when they engaged
in protected opposition, they had a reasonable, good faith belief that the opposed behavior was
discriminatory. Crumpacker v. Kansas Dep't of Human Res., 338 F.3d 1163, 1172 (10th Cir.
2003). Plaintiffs in part testified that they believed HPD was targeting minority communities.
This proffered expert testimony tends to corroborate that belief, making it more likely that a jury
would find that they had a good faith belief.

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For the reasons stated below, the Court finds that the alleged errors raised by Defendants
do not render Mr. Cooper’s opinion unreliable but tend to go to the weight the jury should give his
opinions. To present expert testimony to the jury, a party must show that the methods employed
by the experts in reaching their conclusions are based on reliable methodologies, and that their
opinions are based on facts sufficiently tied to the case. Dodge v. Cotter Corp., 328 F.3d 1212,
1222 (10th Cir. 2003). “When an expert meets the threshold established by Rule 702, the expert
may testify and the fact finder decides how much weight to give that testimony.” City of Pomona
v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th Cir. 2014), cited in Meyer v. Celadon Grp., Inc.,
No. 1:15-CV-01097-LF-KBM, 2017 WL 2465197, at *1 (D.N.M. Jan. 17, 2017).
“In deciding whether a step in an expert's analysis is unreliable, the district court should
undertake a rigorous examination of the facts on which the expert relies, the method by which the
expert draws an opinion from those facts, and how the expert applies the facts and methods to the
case at hand.” Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002). “A
minor flaw in an expert's reasoning or a slight modification of an otherwise reliable method will
not render an expert's opinion per se inadmissible.” Id.

“The judge should only exclude the

evidence if the flaw is large enough that the expert lacks ‘good grounds' for his or her conclusions.”
Id. “This limitation on when evidence should be excluded accords with the liberal admissibility
standards of the federal rules and recognizes that our adversary system provides the necessary tools
for challenging reliable, albeit debatable, expert testimony.” “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, 509 U.S.
at 596, 113 S.Ct. 2786.

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The Court addresses Defendants’ objections as follows. First, Defendants argue that
Plaintiffs will use Mr. Cooper’s opinion to prove that HPD engaged in race-based policing.
Defendants admit that Mr. Cooper himself will not express any such opinion. Rather, Mr.
Cooper’s expert report asserts that 82% of the stops in Hobbs for violation of the pedestrian in the
roadway statute occurred in communities with high minority populations. Therefore, the Court
finds this argument not well taken. Defendants also assert that Mr. Cooper’s opinion defines
minority to include Hispanics along with African Americans, and therefore is not probative of
whether HPD stopped African Americans at a disproportionate rate. The Court finds this argument
goes to the weight of the evidence.
Defendants further argue that Mr. Cooper did not verify the underlying data given to him
by Plaintiffs’ counsel and inappropriately relied upon data compiled by Plaintiffs’ counsel.
“Unless the information or assumptions that [a party's] experts relied on were so unrealistic and
contradictory as to suggest bad faith, inaccuracies in the underlying assumptions or facts do not
generally render an expert's testimony inadmissible.” R.F.M.A.S., Inc. v. So, 748 F.Supp.2d 244,
269 (S.D.N.Y.2010) (internal quotation omitted), quoted in Lee Valley Tools, Ltd. v. Indus. Blade
Co., 288 F.R.D. 254, 267 (W.D.N.Y. 2013). “An expert opinion is not per se unreliable because
it relies upon some unverified or inaccurate information provided by the expert's client.” Lee
Valley Tools, Ltd. v. Indus. Blade Co., 288 F.R.D. 254, 267 (W.D.N.Y. 2013), citing R.F.M.A.S.,
Inc. v. So, 748 F.Supp.2d at 269 (data not inherently unreliable simply because it was provided by
a party or its counsel). Rather, if a party provides its expert “with a piece of false information or
withheld relevant data, [the opposing party] can cross-examine the experts on this matter, calling
into question the weight that the jury should accord their testimony.” R.F.M.A.S., Inc., 748
F.Supp.2d at 269. Here, the data used by Mr. Cooper was produced by Defendants and given to

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Plaintiffs’ counsel. Plaintiffs’ counsel put that data into an excel spreadsheet. The Court finds
that Defendants can likely effectively cross-examine Mr. Cooper about the data he used in forming
his opinion. There is nothing in the record to suggest that experts would not “reasonably rely on
those kinds of facts or data.” FRE 703. There is also nothing in the record to suggest that Mr.
Cooper relied on false or incomplete data. Rather, the Court finds that Mr. Cooper reasonably
relied on the Excel sheet containing data from the CAD reports. The Court further finds that Mr.
Cooper’s opinion is based on sufficient reliable facts, given the limited scope of his opinion.
Mr. Cooper opined that 82% of all pedestrians stops occurred in areas with a high minority
population. Defendants argue this is wrong because he was not given data on all pedestrian stops,
but on stops for violation of Pedestrian in the Roadway statute. Therefore, a more accurate
conclusion would have been that 82% of stops for violation of “Pedestrian in the Roadway” statute
occurred in communities with a high minority population. The Court does not find this error to be
disqualifying. This does not tend to attack his opinions but can easily be clarified on examination.
Defendants may cross-examine Mr. Cooper on what he means by “pedestrian stops”, but this error,
if any, does not warrant exclusion.
Defendants argue that Mr. Cooper did not look at any crime data. Any such analysis was
unnecessary and far outside the scope of his limited expert opinion. This is, again, a matter for
cross examination. Similarly, Defendants argue that the CAD logs did not track the race of
individuals stopped. However, Mr. Cooper does not testify what percentage of stops involved
minorities.
Finally, Mr. Cooper was given wrong information about the number of districts in Hobbs.
There are six city council districts and five police districts, and he used the city council districts.

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The CAD logs and underlying data were not organized by district. Therefore, this error may affect
his presentation, but Defendants have not shown how this error renders his opinion unreliable.
Considering the Daubert standard and FRE 702, the Court finds that Mr. Cooper’s
testimony is reliable and relevant and will assist the trier of fact to understand or determine a fact
in issue. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. at 592, 113 S.Ct. 2786.
IT IS THEREFORE ORDERED that Defendants’ Motion in Limine to Exclude Expert
Testimony of William S. Cooper (Doc. 188) is DENIED.

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