Wooten v. Roach et al

Filing 142

MEMORANDUM OPINION AND ORDER denying 135 MOTION to Strike Plaintiff's Expert Joseph Brown filed by Collin County, Texas. Signed by District Judge Amos L. Mazzant, III on 12/9/2021. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

SUZANNE H. WOOTEN,
Plaintiff,
v.
COLLIN COUNTY, TEXAS,
Defendant.

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Civil Action No. 4:18-CV-380
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Collin County, Texas’s Motion to Strike Plaintiff’s
Expert Joseph Brown (Dkt. #135). Having considered the motion and relevant pleadings, the Court
finds the motion should be DENIED.
BACKGROUND
In 2008, Plaintiff Suzanne H. Wooten (“Wooten”) defeated incumbent Judge Charles
Sandoval in the Republican primary election for the 380th District Court Judge in Collin County,
Texas (Dkt. #111 ¶ 16). After receiving allegations that Wooten cheated during the election, the
Collin County District Attorney’s Office (the “CCDAO”) initiated an investigation into Wooten’s
campaign (Dkt. #111 ¶¶ 17–18). Eventually, at the request of Christopher Milner (“Milner”),
CCDAO’s Chief of Special Crimes Unit, the Office of the Attorney General (the “OAG”) joined
in the case against Wooten (Dkt. #111 ¶¶ 31–32).
At trial, a jury found Wooten guilty of six counts of bribery, one count of engaging in
organized criminal activity, one count of money laundering, and one count of tampering with a
governmental record (Dkt. #111 ¶ 72). However, due to the acquittal of other parties involved in
the criminal lawsuit, on May 10, 2017, Wooten filed her First Amended Application for 11.072
Writ of Habeas Corpus Declaring Actual Innocence as a Matter of Law with the 366th District

Court in Collin County, Texas (Dkt. #111 ¶¶ 88–90). On May 24, 2017, the 366th District Court
granted the requested relief “finding the evidence presented legally insufficient because the
allegations, even if true, were not crimes under Texas law” (Dkt. #111 ¶ 89). The district court
also determined that because the evidence was legally insufficient to convict Wooten of the nine
felony charges, there had been a “violation of [Wooten’s] due process rights.” (Dkt. #111 ¶ 91).
On May 23, 2018, Wooten filed suit against numerous defendants alleging violation of her
due process rights, violation of the Fourth Amendment, conspiracy to deprive Wooten of her
constitutional rights, and malicious prosecution, among other causes of action and theories of
liability (Dkt. #1).
After a series of orders from this Court and the Fifth Circuit Court of Appeals, the only
remaining defendant is Collin County, Texas (the “County”). The sole remaining claim in this
action is Wooten’s allegation that the CCDAO had a policy, custom, or practice of pursuing
investigations, arrests, and prosecutions which lacked probable cause due to political, personal, or
professional motivations (Dkt. #124 at pp. 11–13).
In support of her claim, Wooten retained Joseph Brown (“Brown”) as an expert. Brown is
a former criminal prosecutor, District Attorney, and United States Attorney for the Eastern District
of Texas (Dkt. #138 at p. 2). Brown prepared and submitted his expert report, which Wooten sent
to defense counsel on August 9, 2021 (Dkt. #127).
On October 1, 2021, the County moved to strike Brown’s testimony (Dkt. #135). Wooten
responded on October 20, 2021 (Dkt. #138). The County replied on October 27, 2021 (Dkt. #139).
Wooten filed her sur-reply on November 1, 2021 (Dkt. #140).

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LEGAL STANDARD
Federal Rule of Evidence 702 provides for the admission of expert testimony that assists
the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. In
Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court instructed courts to function
as gatekeepers, and determine whether expert testimony should be presented to the jury. 509 U.S.
579, 590–93 (1993). Courts act as gatekeepers of expert testimony “to make certain that an expert,
whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
The party offering the expert’s testimony has the burden to prove that: (1) the expert is
qualified; (2) the testimony is relevant to an issue in the case; and (3) the testimony is reliable.
Daubert, 509 U.S. at 590–91. A proffered expert witness is qualified to testify by virtue of his or
her “knowledge, skill, experience, training, or education.” FED. R. EVID. 702.

Moreover,

“[r]elevance depends upon ‘whether [the expert’s] reasoning or methodology properly can be
applied to the facts in issue.’” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir.
2007) (quoting Daubert, 509 U.S. at 593). The Fifth Circuit has stated that testimony is relevant
when it “assist[s] the trier of fact to understand the evidence or to determine a fact in issue.”
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 245 (5th Cir. 2002) (quoting Daubert, 509 U.S. at 591).
Finally, expert testimony must not only be relevant, but also reliable to be admissible. Daubert,
509 U.S. at 589. “This gate-keeping obligation applies to all types of expert testimony, not just
scientific testimony.” Pipitone, 288 F.3d at 244 (citing Kumho, 526 U.S. at 147).

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ANALYSIS
The County contends Brown’s testimony should be struck because: (1) Brown seeks to
apply an incorrect standard of care; (2) Brown’s opinions constitute impermissible legal opinions;
and (3) the basis of Brown’s opinions lack sufficient probative force and reliability (Dkt. #135).
Wooten responds that Brown’s opinions are proper and admissible (Dkt. #138). The Court will
address each argument in turn.
A. Standard of Care
Brown opines that the CCDAO failed to meet a prosecutor’s standard of care (Dkt. #135,
Exhibit 2). The County argues Brown’s opinion does not assist the jury in deciding whether the
CCDAO engaged in a policy or custom of prosecuting politically motivated cases (Dkt. #135 at
pp. 4–5). Wooten contends Brown merely provides an opinion on whether the conduct of the
CCDAO fell below the standard of care for prosecutors and district attorneys by engaging in
investigations and prosecutions which lacked probable cause for political and personal purposes
(Dkt. #138 at pp. 8–9). Unfortunately, each side provides scant legal argument in support of their
respective position on this point. However, the Court can surmise the parties disagree over the
relevance of Brown’s testimony on a prosecutorial standard of care.
Wooten’s § 1983 claim is all that remains in this suit. A municipality may be liable under
§ 1983 when the execution of the government’s policy, practice, or custom causes injury. See
Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). To succeed on a Monell
action, a plaintiff must “specifically identif[y]” the contested policy. Piotrowski v. City of Hous.,
237 F.3d 567, 579 (5th Cir. 2001). Additionally, if that “policy [is] based on a pattern,” the plaintiff
must demonstrate the pattern “‘occurred for so long or so frequently that the course of conduct
warrants the attribution to the governing body of knowledge that the objectionable conduct is the

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expected, accepted practice of . . . employees.’” Davidson v. City of Stafford, 848 F.3d 384, 396
(5th Cir. 2017) (quoting Peterson v. City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009)).
In his report, Brown states the CCDAO engaged in a pattern of investigating and
prosecuting cases that lacked probable cause because of political or personal motivations (Dkt.
#135, Exhibit 2 at p. 4). Brown’s report includes examples that illustrate his opinion (Dkt. #135,
Exhibit 2 at pp. 5–8). Moreover, Brown identifies themes of the CCDAO’s contested policies and
practices: (1) targeting lawyers, judges, clerks, bondsmen, and other judicial personnel;
(2) indicting with superfluous counts or over-charging cases; (3) amending indictments during the
course of prosecution; (4) threatening unrepresented defendants; (5) engaging in questionable
grand jury practices; and (6) conducting investigations without the involvement of outside law
enforcement (Dkt. #135, Exhibit 2 at pp. 11–13). Brown describes these themes as troubling,
improper, and unusual (Dkt. #135, Exhibit 2 at pp. 11–13). Brown ultimately concludes that the
CCDAO failed to meet the prosecutor’s duty “to see that justice is done” (Dkt. #135, Exhibit 2 at
p. 13).
To the extent that Brown’s opinions rely on a comparison to prosecutorial norms or
standards, such a comparison is permissible. First, experts may compare a party’s conduct to the
relevant standard of care—in fact, such testimony is often required. Pierson v. United States, 605
Fed. Appx. 293, 294 (5th Cir. 2015) (citing Quijano v. United States, 325 F.3d 564, 567 (5th Cir.
2003)). Second, Brown’s opinions are based on his twenty years of experience as a state and
federal prosecutor (Dkt. #135, Exhibit 2 at p. 1). Brown possesses specialized knowledge and
expertise that may assist the jury in determining whether an unconstitutional official policy existed,
based on a pattern of improper behavior. Thus, Brown’s testimony regarding whether the behavior

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at CCDAO fell below particular norms or customs for a prosecutor’s office is relevant and
admissible. Pipitone, 288 F.3d at 245 (quoting Daubert, 509 U.S. at 591).
B. Legal Conclusions
Next, the County contends Brown’s opinions constitute impermissible legal conclusions
(Dkt. #135 at p. 5). Wooten responds that Brown merely provides the industry standards for the
legal field of criminal prosecution (Dkt. #138 at p. 9).
Experts cannot offer testimony regarding what law governs a dispute or what the applicable
law means, because that is a function of the courts. Fisher v. Halliburton, No. H-05-1731, 2009
WL 5216949, at *2 (S.D. Tex. Dec. 21, 2009) (citing Askanase v. Fatjo, 130 F.3d 657, 673 (5th
Cir. 1997)); see also Goodman v. Harris Cnty, 571 F.3d 388, 399 (5th Cir. 2009) (“An expert may
never render conclusions of law.”). “Allowing an expert to give his opinion on the legal
conclusions to be drawn from the evidence both invades the court’s province and is irrelevant.”
Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983). “There is one, but only one, legal
answer for every cognizable dispute. There being only one applicable legal rule for each dispute
or issue, it requires only one spokesman of the law, who of course is the judge.” Askanase, 130
F.3d at 673.
The Court notes that Federal Rule of Evidence 704 provides that “testimony in the form of
an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.” FED. R. EVID. 704. However, Rule 704 does not open the
door to all opinions. Owen, 698 F.2d at 240. The rule is not intended to allow expert witnesses to
give legal conclusions or tell the jury what result to reach. Id. Nonetheless, a legal expert may
testify as to mixed questions of law and fact. Corinth Inv’r Holdings, LLC v. Evanston Ins. Co.,

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2014 WL 7146040, No. 4:13-CV-682, at *4 (E.D. Tex. Dec. 15, 2014) (citing Waco Int’l, Inc. v.
KHK Scaffolding Hous. Inc., 278 F.3d 523, 532–33 (5th Cir. 2002)).
Brown’s ultimate opinion is that the CCDAO “had a pattern and practice of using its
authority to investigate, threaten to prosecute, or to prosecute cases that lacked probable cause of
guilt against individuals with which members of the DA’s office had personal, professional, or
political differences” (Dkt. #135, Exhibit 2 at p. 4). In support of his opinion, Brown offers other
investigations, arrests, and prosecutions as illustrations of the CCDAO’s alleged pattern of practice
(Dkt. #135, Exhibit 2 at pp. 5–10). For example, in the CCDAO’s investigation of Judge Greg
Willis, Brown concludes—based on the attorney pro tem’s testimony, a grand juror’s testimony,
and the grand jury’s report—there was no probable cause for the investigation, and thus it was
improper (Dkt. #135, Exhibit 2 at p. 5).
While probable cause is a legal conclusion, United States v. Zavala, 541 F.3d 562, 574 (5th
Cir. 2008), the Court finds Brown’s opinions admissible. The Court believes United States v.
Fogg, 562 F.2d 551 (5th Cir. 1981) is instructive here. In Fogg, the Fifth Circuit evaluated whether
the following statement made by an expert in a tax evasion case was a legal conclusion: “Without
any other evidence those monies (from FOJC) would be considered constructive dividend (sic) to
the taxpayer.” Fogg, 562 F.3d at 556. The Fifth Circuit concluded the statement was merely the
expert’s “opinion as an accountant,” and that the expert “did not attempt to assume the role of the
court.” Id. at 556–57. Thus, the Fogg court held the expert’s opinion did not constitute a legal
conclusion. Id. at 557.
Additionally, in United States v. Milton, the Fifth Circuit affirmed the lower court’s
admission of an expert’s testimony in a prosecution for an illegal gambling business. 555 F.2d
1198, 1204 (5th Cir. 1977). There, the expert characterized certain bets and interpreted “an

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otherwise obscure transcript” to give the jury insight into the “role of the commissioned
bookmaker.” Id. The Milton court concluded the expert witness’s statement was not “promoting
a legal doctrine” and thus took no issue with its admissibility. Id. Finally, the Fifth Circuit found
it permissible for a customs agent to state his interpretation of customs laws and apply it to the
ultimate issue in the case. Huff v. United States, 273 F.2d 56 (5th Cir. 1959).
The ultimate issue here is whether the CCDAO’s contested policy, practice, or custom
caused Wooten injury. Monell, 436 U.S. at 694. Because Wooten claims the contested policy is
based on a pattern of activity, Wooten must demonstrate that the duration or frequency of the
pattern resulted in the objectionable conduct becoming the expected or accepted practice for
employees at CCDAO. City of Stafford, 848 F.3d at 396 (citations omitted).
Brown opines the CCDAO “had a pattern and practice of using its authority to investigate,
threaten to prosecute, or to prosecute cases that lacked probable cause” against individuals with
which CCDAO employees “had personal, professional, or political differences” (Dkt. #135,
Exhibit 2 at p. 4). The Court finds this statement similar to the one at issue in Fogg. The Court
does not believe Brown attempts to assume the role of the Court and make determinations
regarding probable cause. Instead, the Court reads Brown’s statement as his opinion, as a former
prosecutor, that the CCDAO had a practice of pursuing frivolous cases for personal reasons.
Therefore, Brown’s opinion is not a legal conclusion. Rather, Brown’s testimony is evidence of
the existence of an alleged pattern of activity, its frequency and duration, and how it may have
become CCDAO policy.
C. Basis of Opinions
Finally, the County argues Brown’s testimony should be stricken because he relied on
“courthouse gossip,” media reports, and information given by interested witnesses to support his

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opinions (Dkt. #135 a p. 6). Wooten responds that Brown’s opinions are properly supported and
the County’s arguments go to the weight, and not to the admissibility, of Brown’s testimony (Dkt.
#138).
Regardless of its characterization of the underlying factual basis for Brown’s opinions, the
County’s argument is an attack on the credibility of, and weight to afford to, Brown’s report.
Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 1283, 1299 (Fed. Cir. 2015) (“To the extent [the
expert’s] credibility, data, or factual assumptions have flaws, these flaws go to the weight of the
evidence, not to its admissibility.”); Matador Drilling Co. v. Post, 662 F.2d 1190, 1199 (5th Cir.
1981) (finding appellant’s “general complaint that the reports are incomplete and inaccurate are
matters going to the weight of this evidence and not its admissibility.”).
“As a general rule, questions relating to the bases and sources of an expert’s opinion affect
the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s
consideration.” United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cnty, 80
F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir.
1987)). Thus, the County’s argument is best saved for the factfinder. Moss v. Ole South Real
Estate, Inc., 993 F.2d 1300, 1307 (5th Cir. 1991) (“The court must allow the jury to make
credibility decisions and to decide what weight to afford a report’s findings.”); Crompton
Richmond Co., Factors v. Briggs, 560 F.2d 1195, 1202 n.12 (5th Cir. 1977) (“Although [appellant]
does not contest the admissibility of this evidence, his attack is essentially one arguing its
inaccuracy and incompleteness. . . . This is an assault on its weight, not on its admissibility. Of
course, the weight accorded to such records is within the domain of the trier of fact.”). As such,
cross examination is the proper way to expose any alleged deficiencies. Indeed, cross examination
is preferred because “[i]t is the role of the adversarial system, not the court, to highlight weak

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evidence.” Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004); see
also Mobility Workx, LLC v. Cellco P’ship, 4:17-CV-00872, 2019 WL 5721814, at *6 (E.D. Tex.
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Nov. 5, 2019) (Mazzant, J.). Therefore, the Court declines to strike Brown’s report or testimony.
CONCLUSION
It is therefore ORDERED Defendant Collin County, Texas’s Motion to Strike Plaintiff’s
Expert Joseph Brown (Dkt. #135) be DENIED.
SIGNED this 9th day of December, 2021.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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