Harper v. The City of Dallas Texas et al

Filing 103

Memorandum Opinion and Order granting in part and denying in part 83 Motion to Exclude Testimony of the Plaintiffs' Retained Expert Witness Jerry Staton. (Ordered by Magistrate Judge David L. Horan on 12/6/2017) (epm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TONY S. HARPER, SANDRA HARPER,
individually and for the benefit of all
statutory beneficiaries of James Harper
and as the Estate of James Harper, and
KH, a minor by and through her mother
and guardian Ashlee Whadley,
Plaintiffs,
V.
THE CITY OF DALLAS, TEXAS,
and BRIAN ROWDEN,
Defendants.

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No. 3:14-cv-2647-M

MEMORANDUM OPINION AND ORDER
Defendants City of Dallas, Texas and Brian Rowden have filed a Motion to
Exclude Testimony of the Plaintiffs’ Retained Expert Witness Jerry Staton, see Dkt.
No. 83 (the “Motion to Exclude”), which Chief Judge Barbara M. G. Lynn has referred
to the undersigned United States magistrate judge for a hearing, if necessary, and for
determination under 28 U.S.C. § 636(b), see Dkt. No. 86.
Plaintiffs Tony S. Harper, Sandra Harper, and KH filed a response, see Dkt. No.
96, and Defendants filed a reply, see Dkt. No. 101.
For the reasons and to the extent explained below, the Court GRANTS in part
and DENIES in part Defendants’ Motion to Exclude Testimony of the Plaintiffs’
Retained Expert Witness Jerry Staton [Dkt. No. 83].

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Background
The pertinent factual background and procedural background is familiar to the
parties and will not be recounted at length here.
As Plaintiff explained in a previous motion, “[i]n this lawsuit, Plaintiffs claim
that the City is liable for damages resulting from the use of excessive force, assault,
unlawful arrest and detention of James Harper, who – although unarmed and
unthreatening and having committed no unlawful acts – was savagely beaten, as the
evidence shows and then shot in cold blood by Defendant Officer Brian Rowden.” Dkt.
No. 79 at 1.
Defendants, for their part, describe the case as
center[ing] around an encounter between James Harper (“Harper”) and
former Dallas police officer Brian Rowden. On 24 July 2012, an
anonymous 9-1-1 caller reported that an armed group of Latin males were
leading an African-American male into a house on 5616 Bourquin Street,
located in the Fair Park area of Dallas (“the House”). The kidnapping call
was false and apparently arose out of an earlier altercation between the
9-1-1 caller and some members of a criminal street gang known as the
357 Dixon Crips, including James Harper, in which the 9-1-1 caller was
assaulted. Three (3) uniformed Dallas Police Department (“DPD”)
officers, including Officer Rowden, responded to the call by going to the
House, which was being operated as a drug house.
The officers attempted to make contact with the occupants of the
House by knocking on the door and identifying themselves as police
officers. Officer Begin made eye contact with one of the occupants, who
quickly slammed a door shut. Concerned for the safety of the reported
kidnap victim, Officer Rowden pushed aside a window-mounted air
conditioner to see what was going on inside. Officer Rowden saw a gun,
several unfired shotgun shells, and what appeared to be marijuana and
cocaine on a table. He could also smell phencyclidine (“PCP”). Officer
Rowden also saw four African-American males inside the House, one of
whom took the gun and ran to the back of the House. Officer Rowden
yelled “Police!” and heard glass breaking toward the back of the House.
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Several adult males fled from the House. One suspect, Arthur
Dixon, was quickly apprehended. A second suspect, James Fullwood, was
able to evade the officers. Officer Begin took custody of Dixon while
Officer Rowden chased Harper over some fences and through residential
yards. A prolonged physical struggle ensued when Officer Rowden caught
up to Harper. Harper disobeyed Officer Rowden’s repeated commands to
show his hands, and appeared to be trying to retrieve a possible weapon
from his pant pocket. Officer Rowden shot fatally Harper when he
believed that Harper was about to produce a weapon and kill Officer
Rowden.
The Plaintiffs contend that Officer Rowden shot Harper without
any lawful justification; Officer Rowden asserts that he shot Harper in
self-defense when Harper appeared to be reaching for a weapon concealed
in Harper’s pant pocket during the physical struggle.
The Plaintiffs sue the Defendants under 42 U.S.C. § 1983, and
allege the deprivation of Harper’s Fourth Amendment right to be free
from the use of excessive force in the course of a seizure. The Plaintiffs
assert that the City is liable under § 1983 because of supposed
deficiencies in DPD officer training and supervision. The Plaintiffs plead
for compensatory and punitive damages. The Defendants deny all
liability, and Officer Rowden asserts his entitlement to qualified
immunity.
Dkt. No. 83 at 7-9 (footnote omitted).
More specifically, as to the Motion to Exclude, Defendants note that “Plaintiffs
filed [Federal Rule of Civil Procedure] 26(a)(2) expert disclosures on 26 March 2017”
and that Defendants then timely filed the Motion to Exclude. Id. at 7. They explain
that “Plaintiffs have designated Staton as a retained expert witness on police
procedures” and “have served Staton’s written report containing his expert opinions
and conclusions to be offered before the jury in this case (the ‘Report’), and the
Defendants have taken Staton’s oral deposition.” Id. at 9.
But, according to Defendants, “the bulk of Staton’s opinions and conclusions as
stated in his Report and deposition testimony relate to matters that may not be
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presented by an expert witness, or to matters as to which Staton lacks adequate
qualifications to present testimony,” and so “Defendants ask the Court to enter an
order excluding such testimony from the trial of this case.” Id.
Legal Standards
Federal Rule of Evidence 702 provides that 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.” FED. R. EVID. 702. The trial court acts as a “gatekeeper” to
exclude expert testimony that does not meet relevancy and reliability requirements.
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993) (scientific
testimony or evidence must be relevant and reliable). In this role, the Court determines
the admissibility of expert testimony based on Rule 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. “The court may admit
proffered expert testimony only if the proponent, who bears the burden of proof,
demonstrates that (1) the expert is qualified, (2) the evidence is relevant to the suit,
and (3) the evidence is reliable.” E.E.O.C. v. S&B Industry, Inc., No. 3:15-cv-641-D,
2017 WL 345641, at *2 (N.D. Tex. Jan, 24, 2017) (internal quotation marks omitted;
citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)).
“Before a district court may allow a witness to testify as an expert, it must be
assured that the proffered witness is qualified to testify by virtue of [her] ‘knowledge,
skill, experience, training, or education.’” United States v. Cooks, 589 F.3d 173, 179
(5th Cir. 2009) (quoting FED. R. EVID. 702). “A district court should refuse to allow an
expert witness to testify if it finds that the witness is not qualified to testify in a
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particular field or on a given subject.” Id. (citing Wilson v. Woods, 163 F.3d 935, 937
(5th Cir. 1999)). “Rule 702 does not mandate that an expert be highly qualified in order
to testify about a given issue. Differences in expertise bear chiefly on the weight to be
assigned to the testimony by the trier of fact, not its admissibility.” Huss v. Gayden,
571 F.3d 442, 452 (5th Cir. 2009) (citation omitted).
To be relevant, “expert testimony [must] ‘assist 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). “Relevance 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); see also FED. R. EVID. 702(d) (requiring that “expert
has reliably applied the principles and methods to the facts of the case”).
“Reliability is determined by assessing ‘whether the reasoning or methodology
underlying the testimony is scientifically valid.’” Knight, 482 F.3d at 352 (quoting
Daubert, 509 U.S. at 592-93); see also FED. R. EVID. 702(c) (requiring that “testimony
[be] the product of reliable principles and methods”). “The reliability prong mandates
that expert opinion be grounded in the methods and procedures of science and ... be
more than unsupported speculation or subjective belief.” Johnson v. Arkema, Inc., 685
F.3d 452, 459 (5th Cir. 2012) (internal quotation marks omitted). But “there is no
requirement that an expert derive his opinion from firsthand knowledge or
observation.” Deshotel v. Wal-Mart La., L.L.C., 850 F.3d 742, 746 (5th Cir. 2017)
(internal quotation marks omitted).
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“The focus, of course, must be solely on principles and methodology, not on the
conclusions that they generate.” Daubert, 509 U.S. at 595. “The proponent need not
prove to the judge that the expert’s testimony is correct, but she must prove by a
preponderance of the evidence that the testimony is reliable.” Johnson, 685 F.3d at 459
(internal quotation marks omitted). But, if “there is simply too great an analytical gap
between the [basis for the expert opinion] and the opinion proffered,” the Court may
exclude the testimony as unreliable. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
“[C]ourts consider the following non-exclusive list of factors when conducting the
reliability inquiry: (1) whether the theory or technique has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) the known
or potential rate of error of the method used and the existence and maintenance of
standards controlling the technique’s operation; and (4) whether the theory or method
has been generally accepted by the scientific community.” Johnson, 685 F.3d at 459
(internal quotation marks omitted). But these factors “may or may not be pertinent in
assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of [the] testimony.” Kumho, 526 U.S. at 150.
The burden is on the proponent of the expert testimony to establish its
admissibility by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10;
see also Johnson, 685 F.3d at 459. The Court’s inquiry is flexible in that “[t]he
relevance and reliability of expert testimony turns upon its nature and the purpose for
which its proponent offers it.” United States v. Valencia, 600 F.3d 389, 424 (5th Cir.
2010) (citation omitted). “As a general rule, questions relating to the bases and sources
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of an expert’s opinion affect the weight to be assigned that opinion rather than its
admissibility and should be left for the [trier of fact’s] consideration.” Viterbo v. Dow
Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987). “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.”
Daubert, 509 U.S. at 596.
Discussion
Defendants contend that, “[i]n his Report, Staton criticizes Officer Rowden’s
conduct based upon (1) irrelevant alleged deviations from ‘good police procedure,’ (2)
irrelevant alleged misconduct that does not violate federal law, and (3) irrelevant
alleged misconduct as to which no actionable claim is asserted. Staton further
expresses opinions that are speculative, conclusory, or otherwise irrelevant, as well as
opinions bearing directly upon the credibility of witnesses.” Dkt. No. 83 at 13. They
argue that “all of those opinions that follow should be excluded from evidence under
the Daubert/Kumho standards, as well as under several other evidentiary rules.” Id.
at 9. Defendants assert that these specified “opinions are impermissibly speculative,
impermissibly attempt to convey a legal standard, impermissibly opine on others’
mental states, and/or will not be helpful to the jury because they are irrelevant to any
fact in issue” and that “[t]he Court should preclude Staton from proffering those
opinions before the jury, in accordance with Rule 702 of the Federal Rules of Evidence,
and settled jurisprudence as to the allowable scope of opinions by police procedures
experts.” Id. at 30.
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Plaintiffs respond that
Defendants do not question Staton’s qualifications. Nor can they. Staton’s
own report – which Defendants included in their appendix –
demonstrates his extensive experience in the field. By way of background,
Staton is a retired police officer having obtained the rank of Detective
with the Austin Police Department. Staton started his police career in
February, 1975 and retired in August, 2000. The majority of Staton’s
service was spent in the tactical arena, including eight years on a
full-time SWAT team. The last three years Staton was assigned as an
instructor in the Police Academy, teaching use of force skills to cadets and
veteran officers. Since retiring Staton has continued teaching in the
police use of force field on a regular basis, currently accumulating
eighteen years of teaching experience and over forty years of law
enforcement related experience. Thus, Staton’s background supports that
he is experienced in the fields of, among other things, probable cause,
reasonable suspicion, use of force, police practices and analysis. Instead,
Defendants question the relevance and reliability of his testimony. In the
process, the Defendants take a rather narrow view of the law and
Staton’s opinions to make both arguments. A more accurate analysis,
however, reveals that Staton’s opinions are both relevant and reliable.
Dkt. No. 96 at 3-4.
In reply, Defendants contend that “Plaintiffs concede that their expert, Staton,
may not offer opinions on legal standards, proffer legal conclusions, opine on witness
credibility, or speculate on subjective mental states or personal motivations”; that “the
Court should grant the Defendants’ objections to Staton’s opinions as requested in
sections IV-B-3, -6, -7, -9, and -10 of their Motion”; that “all that is in issue are Staton’s
opinions that are the subject of Motion sections IV-B-1, -2, -4, -5, and -8”; and that
“[t]he Court should grant the Defendants’ remaining objections because the
subject-matter of Staton’s remaining testimony is irrelevant to either the objective
reasonableness of Officer Rowden’s uses of force or the existence of a City policy that

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could result in § 1983 liability based upon Officer Rowden’s uses of force.” Dkt. No. 101
at 1-2.
The Court will address in turn each of the 10 sets of opinions that Defendants’
Motion to Exclude challenges, in the order that Defendants presented them.
I.

The three officers improperly handled the initial investigation of the 9-1-1 call.
Defendants seeks to exclude Staton’s opinion in section V, paragraphs 1 through

8 of his Report that “the three responding officers should have handled events
preceding Officer Rowden’s confrontation with Harper differently.” Dkt. No. 83 at 15.
Defendants explain that, although “Staton’s Report is rife with purely speculative
opinions as to what might have occurred if the officers had handled the 9-1-1 call
differently preceding Officer Rowden’s one-on-one encounter with Harper, or if
different decisions had been made,” “no expert, no matter how good his credentials, is
permitted to speculate as to what might have happened under other factual scenarios.”
Id. at 13.
In their response, Plaintiffs contend that “[a] thorough review of Staton’s report
plainly reveals that in paragraphs V-1 through V-8, he offers numerous opinions
regarding forensic investigation, police procedure, and training. None of his opinions
involve an evaluation of witness credibility. None of his statements involve speculation
as to what ‘might have happened’ if proper procedures were followed. None of his
statements purport to offer opinions on legal standards or legal conclusions.
Accordingly, Defendants’ arguments and authorities that address such categories of
inadmissible testimony are necessarily misplaced.” Dkt. No. 96 at 5-6.
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In reply, Defendants explain that
Plaintiffs do not challenge the Defendants’ contention that alleged
deviations from “proper” police procedure are irrelevant to the excessive
force inquiry. (See Response at 5-6.) Accordingly, this Court should follow
the extended line of Fifth Circuit precedent (see Motion at 10-15) on this
issue, and preclude any testimony by Staton regarding alleged deviations
from “proper” procedures that occurred before Officer Rowden’s use of
force against Harper. Allowing such testimony will merely confuse the
jury into believing that any such alleged deviations may form a basis for
finding that Officer Rowden’s use of force was objectively unreasonable.
Dkt. No. 101 at 3.
The Court agrees with Defendants and a prior ruling by another judge of this
Court that, for the reasons that Defendants explain in their Motion to Exclude and
reply, “Staton cannot testify that Officer [Rowden’s or other officers’] actions leading
up to the shooting violated police procedures” and cannot “speculate about how the
outcome of the incident might have been different had [Officer Rowden or other
officers] followed such procedures.” Flanagan v. City of Dallas, No. 3:13-cv-4231-M-BK,
2017 WL 2817424, at *3 (N.D. Tex. May 25, 2017). The Court therefore GRANTS
Defendants’ motion to exclude this testimony.
II.

The officers’ alleged failures to follow proper police procedure.
Defendants contend that “Staton’s opinions stated in paragraphs V-1 through

V-8 of his Report relate to decisions made that precede Officer Rowden’s actual
physical confrontation and use of deadly force”; that “Staton’s opinions relate to alleged
deviations from what Staton regards as proper procedures”; that “Staton’s opinions in
those paragraphs do not pertain Officer Rowden’s actual use of force”; and that “the
settled rule in the Fifth Circuit is that an officer’s actions leading up to a use of deadly
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force, including any alleged deviations from ‘standard’ or ‘proper’ police procedure, are
not relevant to the excessive force inquiry.” Dkt. No. 83 at 16. Defendants argue that
it is beyond dispute that all of Staton’s opinions that Officer Rowden (or
the other two officers) used “improper tactics” or made procedural
missteps prior to the moment that Officer Rowden used deadly force are
utterly irrelevant to the excessive force inquiry. And, because Officer
Rowden’s alleged procedural missteps are irrelevant, by definition any
expert opinions regarding them will not help the jury to understand the
evidence or to determine a fact in issue. In fact, placing such opinions
before the jury would serve only to confuse the jury, and invite the jury
to find that Officer Rowden’s actions were unreasonable not because of
Officer Rowden’s judgment that that Harper presented an imminent
threat at the moment that Officer Rowden used deadly force, but because
the initial approach and foot pursuit was “unreasonable.” Therefore,
pursuant to Rule 702, the Court must exclude any testimony by Staton
on that topic.
Finally, the Court ought not overlook that Staton himself conceded
in his deposition that Officer Rowden’s actions leading up to the shooting
itself are not relevant to whether Officer Rowden’s use of deadly force was
proper. (Appx. at 20, 24 (Staton Depos. at page 19 lines 14-21, page 27
lines 8-17).) For all of these reasons, Staton’s opinions regarding what he
believes are deviations from proper police procedures are will not assist
the jury, and should be excluded.
Id. at 21.
Plaintiffs respond that
Defendants cite numerous authorities to support their argument that
Staton’s testimony is “not relevant to the excessive-force inquiry” and do
“not relate to any issue to be resolved with respect to the Plaintiffs’
constitutional claims.” Defendants, however, mistakenly assume that
Plaintiffs’ only constitutional claims arise out of Officer Rowden’s actions
(to which a qualified-immunity defense is available). As this Court is
certainly well aware, the Supreme Court of the United States has long
recognized that a plaintiff may assert a claim for constitutional violations
against a municipality. Not only can these claims can arise out of a
municipality’s unconstitutional custom or policy, they can also arise out
of a municipality’s failure to properly train its employees. Here, Plaintiffs
have alleged both.
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This Court, therefore, should deny Defendants’ attempt to
hamstring Plaintiffs’ case by preventing them from offering evidence of
how a reasonable municipality would have trained its officers. It is well
established that evidence of inaction – specifically, failure to investigate
and discipline employees in the face of widespread constitutional
violations – can support an inference that an unconstitutional custom or
practice has been unofficially adopted by a municipality. The same result
should follow here: Staton’s testimony that the City of Dallas failed to
notice that Rowden did anything wrong – whether intentionally or
negligently – is certainly relevant to Plaintiffs’ Monell claims, and
Defendants offer no authorities to suggest otherwise.
Indeed, the authorities that Defendants cite in these sections
address nothing but qualified-immunity arguments. None of these
authorities discuss whether such opinions are admissible for Monell
claims. Accordingly, even if this Court were to conclude that Staton’s
opinions address topics that are irrelevant to Plaintiffs’ claims against
Rowden, Defendants have failed to offer any authority to suggest that
that they lack relevance to his claims against the City. The proper
remedy, therefore, is not exclusion of this testimony, but an instruction
to the jury regarding consideration of the evidence.
Dkt. No. 96 at 6-8 (footnotes omitted).
In reply, Defendants explain that they “object to Staton’s opinions regarding
alleged deviations by the officers to what are generally referred to as ‘standard’ or
‘proper’ police procedure that preceded Officer Rowden’s use of force against Harper,
because any such deviations are categorically irrelevant to the jury’s evaluation of the
reasonableness of Officer Rowden’s use of deadly force and Harper.” Dkt. No. 101 at
2. Defendants contend that, “[b]ecause the Plaintiffs are foreclosed from using alleged
deviations from ‘proper’ police procedures to form the basis for the constitutional
excessive force claim, they make the specious argument that the alleged deviations are
relevant to their failure-to-train claim against the City,” but “Plaintiffs fail to cite even
a single case authority to support the machination of making police decisions that are
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irrelevant to the excessive force issue relevant by lumping them into a generalized
‘failure to train’ claim.” Id. at 3.
According to Defendants, “[m]yriad cases address the need to [] closely link an
alleged training deficiency to the particulars of the underlying constitutional violation”;
“[a] plaintiff asserting § 1983 liability for a failure to train must show (1) the
municipality’s training policy procedures were inadequate; (2) the municipality was
deliberately indifferent in adopting its training policy[,] and (3) the inadequate training
policy directly caused the constitutional violation in issue”: and “the long-settled rule
is that a plaintiff prove that a deficiency in the training program is closely related to
the ultimate injury.” Id. (emphasis removed).
Defendants contend that, while “Plaintiffs accuse the Defendants of
‘attempt[ing] to hamstring the Plaintiffs’ case by preventing them from offering
evidence of how a reasonable municipality would have trained its officers,’” “Plaintiffs
unquestionably may offer evidence regarding the City’s training of its police officers,
provided that the training evidence is pertinent to the Plaintiffs’ claims in the sense
that it is ‘closely related’ to the actual cause of the alleged violation of constitutional
rights” – here, “the allegation that Officer Rowden used excessive force against James
Harper.” Id. at 4.
But, Defendants argue, “[t]he City’s training of its police officers on matters
unrelated to the use of force, i.e., training on those matters of police procedures that
preceded Officer Rowden’s physical encounter with Harper, are not in any cognizable
manner ‘closely related’ to use-of-force training.” Id. According to Defendants, that
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includes Plaintiffs’ contention “that Staton should be permitted to testify about Dallas
Police Department training of officers not with regard to the use of (deadly) force, but
about instead about training that allegedly led to procedural missteps preceding
Officer Rowden’s physical encounter with Harper: (1) ‘Rowden’s decision to continue
to chase after individuals suspected but not known to have committed a serious crime’
(Appx. at 8); or (2) ‘Rowden’s decision to chase Harper combined with the lack of
intermediate weapons’ (Appx. at 9-10).” Id. at 5. Defendants assert that “[n]ot only is
police department training on when and how to engage in foot pursuits not closely
related to Officer Rowden’s later decision to use deadly force to defend against Harper’s
unlawful and violent resistance to arrest, the well-settled rule is that there must be
more than a ‘but for’ link between the lack of training (foot pursuits) and the
institutional injury at issue (use of unlawful deadly force).” Id.
Defendants argue that “the Court should disallow Staton’s opinions regarding
the officers’ alleged failures to follow ‘proper’ police procedure, the wisdom of Officer
Rowden’s decision to pursue Harper on foot, or any alleged training deficiencies
regarding ‘proper’ police procedure.” Id.
For the same reasons discussed in the section above and for the reasons
explained in Defendants’ Motion to Exclude and reply, the Court excludes testimony
of Staton’s opinions regarding Officer Rowden’s and other officers’ alleged failures to
follow proper police procedure in the events preceding Officer Rowden’s physical
encounter with Harper or any alleged training deficiencies regarding proper police
procedure in connection with the events preceding Officer Rowden’s physical encounter
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with Harper. As Defendants concede, Plaintiffs may offer evidence regarding the City’s
training of its police officers that is pertinent to Plaintiffs’ claims that the City of
Dallas and Officer Rowden are liable based on Officer Rowden’s alleged use of excessive
force against Harper, which is what Plaintiffs have pleaded in their operative Third
Amended Complaint. See Dkt. No. 45. But the Court agrees with Defendants’
arguments that testimony by Staton regarding training that allegedly led to procedural
missteps preceding Officer Rowden’s physical encounter with Harper, including as
policies regarding foot pursuits, must be excluded under Rule 702’s relevancy
requirement. Accord Flanagan, 2017 WL 2817424, at *3.
III.

The likely cause of Officer Rowden’s physical injuries.
Defendants contend that, in paragraph V-9 of his Report, “Staton’s opinion that

Officer Rowden’s injuries were ‘most likely from going through heavy brush’ is mere
speculation, and must be excluded.” Dkt. No. 83 at 22. According to Defendants,
“Staton’s Report does not identify what specific facts back up his opinion that foliage,
rather than human physical contact, caused Officer Rowden’s visible physical injuries,
and Staton was unable to provide factual support for that opinion in his deposition,”
and, “[t]herefore, the Court should exclude Staton’s speculative opinions regarding the
cause of Officer Rowden’s injuries.” Id.
Plaintiffs respond that “almost the entirety of Defendants’ motion is devoted to
arguments that Stanton may not (a) evaluate witness credibility; (b) speculate as to
what ‘might have happened’ if proper procedures were followed; or (c) offer opinions on
legal standards or legal conclusions”; that “Plaintiffs do not quarrel with Defendants’
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authorities stating that these are not the subjects on which an expert can testify”; and
that Plaintiffs “do not intend to ask Staton to opine on (a) whether Rowden’s injuries
were caused by brush.... Accordingly, this Court should deny the arguments raised in
section[] IV-B-3 ... can be denied as moot.” Dkt. No. 96 at 5 & n.2.
Defendants reply that, while conceding “that their expert, Staton, may not offer
opinions on legal standards, proffer legal conclusions, opine on witness credibility,
speculate upon others’ subjective mental states or personal motivations, or speculate
on what might have happened if ‘proper procedures’ had been followed,” Plaintiffs are
mistaken that these issues are moot where the Motion to Exclude “seeks to prevent
testimony on the given topic areas” and so focuses “not merely upon what the Plaintiffs
intend to ask, but also on what their expert might say,” and “[t]he Court should grant
the Motion as to the subject matter of the foregoing sections of the Motion, so that the
testimony is precluded – not merely questions about the testimony.” Dkt. No. 101 at
2 (emphasis removed).
The Court agrees. As a general matter, a motion or request within a motion is
mooted by events or actions making the relief sought unnecessary or impossible to
grant on the motion, not by the non-movant agreeing to the relief sought or conceding
the basis of the movant’s request for the relief sought. The Court determines that, in
the conceded absence of any factual support for Staton’s opinion that Officer Rowden’s
injuries were most likely from going through heavy brush renders the opinion mere
speculation, the opinion and any testimony of that opinion must be excluded as
unsupported speculation.
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IV.

The decision to pursue Harper on foot and lack of intermediate weapons.
Defendants contend that “Staton opines in paragraph V-10 of his Report that

Rowden’s decision to chase Harper combined with the lack of intermediate weapons
suggest a lack of training to be part of the reason that Rowden utilized more force than
was required’” but that “Staton’s only support for that opinion is that the DPD does not
annually train its officers on physical skills.” Dkt. No. 83 at 22 (citation omitted).
Defendants contend that “the Court should disallow this opinion” where “[t]here is [a]
clear disconnect between Officer Rowden’s decision to purse Harper without having
intermediate weapons and the alleged lack of annual DPD physical skills training,”
where “Staton conceded in his deposition that he was speculating,” and where “[s]ettled
law requires the Court to exclude Staton’s speculative opinions.” Id. at 22, 23.
Plaintiffs respond that there is not a clear disconnect, as Defendants contend,
where, “[f]irst, as Staton noted in his supplemental report, his opinions are buttressed
by Rowden’s own testimony,” and, “[s]econd, Defendants left out an important part of
Staton’s deposition testimony in their motion,” where he testified that “‘Officer Rowden
would have had more options to control the situation if he had been properly trained
and had the equipment that the department said he should have with him at all
times.’” Dkt. No. 96 at 10 (footnote omitted).
According to Plaintiffs, “Defendants do not offer any argument or authority to
suggest that [this] statement above is ‘speculative.’ Nor do they attempt to argue that
Staton is not qualified to opine on the proper training and equipment for officers
engaged in this type of activity, as it is undisputed that Staton served for several years
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on a special weapons and tactics (‘SWAT’) team.” Id. at 11. Plaintiffs argue that, “[i]n
the absence of any allegation to suggest that Staton is not qualified to form such
opinions, this case simply presents a classic ‘battle of the experts,’ where the proper
remedy for challenging opinions is cross-examination, not exclusion.” Id. (footnote
omitted).
Defendants reply that, “[d]espite the Plaintiffs’ attempt to deflect the discussion
elsewhere, Staton specifically agreed that his opinion that ‘Rowden utilized more force
than the situation required’ was speculative,” and “[e]xperts are not permitted to
speculate, a limitation that the Plaintiffs here acknowledge.” Dkt. No. 101 at 6.
According to Defendants, “[f]aced with Staton’s inescapable admission that he
was speculating that Officer ‘Rowden used more force than the situation required,’ the
Plaintiffs now attempt to change the subject – to an opinion that Staton did not provide
in his report – that ‘Officer Rowden would have had more options to control the
situation if he had been properly trained and had the equipment that the department
said he should have with him at all times,’” “[b]ut, Staton did not offer that opinion in
his report.” Id. at 6-7. Defendants explain that Federal Rule of Civil Procedure
“26(a)(2)(B) requires that an expert’s report ‘contain a complete statement of all
opinions to be expressed and the basis and reasons therefor’” and argue that “Staton’s
opinion is inadmissible at trial.” Id. at 7.
And Defendant contend that “Staton’s previously undisclosed opinion ...
improperly communicates an implicit legal standard to the jury, that having ‘more
options’ was required,” which “is incorrect; police officers not are required to use the
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least intrusive or even less intrusive alternatives when using force. The only
requirement is that the force used be objectively reasonable under the circumstances
as are reasonably perceived by the officer.” Id. at 7-8.
Defendants also argue that, “while the Plaintiffs’ complain that the Defendants
‘left out an important part of Staton’s deposition testimony’ (Response at 9), the
Plaintiffs themselves omit key portions of the relevant exchange,” where “Plaintiffs
include part of the next question, but omit the remainder of the question – and Staton’s
answer, too,” in which Staton testified that “‘I think I can comfortably say that if
Rowden was attacked and was losing and felt that his opponent was in possession of
or getting possession of a gun, then deadly force would have been justified.’” Id. at 7.
Defendants conclude that “the Court should disallow Staton’s speculative
opinion that Officer Rowden ‘used more force than the situation required’” and “also
exclude Staton’s undisclosed opinion that ‘Officer Rowden would have had more options
to control the situation if he had been properly trained,’” where “[w]hether Officer
Rowden would have had ‘more options’ is irrelevant to the jury’s determination
whether the force actually used was objectively reasonable, and the injection into the
trial of such testimony will not merely be unhelpful, it will confuse and mislead the
jury.” Id. at 8.
The Court agrees with Defendants that Staton cannot permissibly speculate in
his testimony that a lack of training caused Officer Rowden to utilize more force than
the situation required. Cf. Flanagan, 2017 WL 2817424, at *4. And Staton’s opinion
that Officer Rowden would have had more options to control the situation if he had
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been properly trained and had the equipment that the Dallas Police Department said
that he should have with him at all times must be excluded because it was not
disclosed in the expert report and because it is legally irrelevant to – and likely to
confuse and mislead the jury in its determination – whether the force actually used
was clearly excessive and unreasonable given the totality of circumstances, including
the options available to Officer Rowden at the scene. The Court therefore GRANTS
Defendants’ motion to exclude this testimony.
V.

DPD’s post-shooting investigations into the encounter.
Defendants contend that, while “Paragraphs V-14 through V-17 of Staton’s

Report contain several opinions that find fault with the adequacy of the DPD’s
investigations of the shooting,” “the adequacy of the post-shooting investigations is
irrelevant to the issues to be decided by the jury – whether Officer Rowden’s use of
deadly force was unlawful and, if so, whether the City is liable under § 1983.” Dkt. No.
83 at 23. According to Defendants, “[n]one of Staton’s opinions regarding the DPD’s
investigative focus or the manner in which the investigations were conducted will
assist the jury in resolving the issues to be tried: (1) whether Officer Rowden used
clearly excessive and objectively unreasonable force against Harper; (2) whether a
reasonable officer in Officer Rowden’s circumstances could have believed that Officer
Rowden’s use of force against Harper was lawful; and (3) whether the Dallas City
Council was deliberately indifferent to DPD custom of deficient officer training or
supervision that was the moving force and actual cause of an unlawful use of force by
Officer Rowden.” Id.
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Defendants contend that, as to Paragraph V-14 of Staton’s Report, “even if
Staton were correct in his assessment of the DPD investigation, that opinion will not
assist the jury in resolving whether Officer Rowden used excessive force, or whether
there was a DPD custom of deficient officer training or supervision. Rather, Staton’s
opinion is a quibble about investigative priorities and focus. As that opinion will not
assist the jury, the Court should exclude it.” Id. at 23-24.
As to Paragraph V-15 of Staton’s Report, Defendants assert contend that,
although “Staton focuses upon evidence that he believes the DPD investigations should
have focused upon, and asserts that the DPD investigation should have reached a
different conclusion,” “those opinions would not be helpful to the jury because they are
irrelevant; the jury will not be called upon to decide whether DPD investigators
reached factually correct conclusions.” Id. at 24. And Defendants contend that Staton’s
complaint that “‘[n]othing was mentioned in the [DPD investigation] summary as to
the extremely poor decision to enter the house. Nothing was mentioned in the
summary about the dangerous decision to chase after three suspects thought to be
armed’” “must also be excluded,” because “an officer’s decisions leading up to a use of
(deadly) force are simply irrelevant to the lawfulness of the use of force itself” and
“Staton must not be permitted to inject such irrelevancies into juror’s minds through
the artifice of discussing another irrelevant issue.” Id. Defendants further note that
“Staton also opines in paragraph V-15 that ‘[t]his internal affairs investigation appears
to have been for show and not an objective search for the truth,’” and Defendants argue
that “[t]hat opinion, and any others like it, should be excluded for the same reasons
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that Staton’s other opinions regarding the adequacy of the DPD’s post-shooting
investigation should be excluded: Staton’s views are not relevant, and will not assist
the jury in resolving any issue to be determined at trial.” Id. According to Defendants,
the “Court should disallow any testimony regarding the adequacy of the DPD’s Internal
Affairs Division investigation because it is irrelevant, and therefore not helpful to the
jury.” Id. at 28.
Plaintiffs respond that
Defendants cite numerous authorities to support their argument that
Staton’s testimony is “not relevant to the excessive-force inquiry” and do
“not relate to any issue to be resolved with respect to the Plaintiffs’
constitutional claims.” Defendants, however, mistakenly assume that
Plaintiffs’ only constitutional claims arise out of Officer Rowden’s actions
(to which a qualified-immunity defense is available). As this Court is
certainly well aware, the Supreme Court of the United States has long
recognized that a plaintiff may assert a claim for constitutional violations
against a municipality. Not only can these claims can arise out of a
municipality’s unconstitutional custom or policy, they can also arise out
of a municipality’s failure to properly train its employees. Here, Plaintiffs
have alleged both.
This Court, therefore, should deny Defendants’ attempt to
hamstring Plaintiffs’ case by preventing them from offering evidence of
how a reasonable municipality would have trained its officers. It is well
established that evidence of inaction – specifically, failure to investigate
and discipline employees in the face of widespread constitutional
violations – can support an inference that an unconstitutional custom or
practice has been unofficially adopted by a municipality. The same result
should follow here: Staton’s testimony that the City of Dallas failed to
notice that Rowden did anything wrong – whether intentionally or
negligently – is certainly relevant to Plaintiffs’ Monell claims, and
Defendants offer no authorities to suggest otherwise.
Indeed, the authorities that Defendants cite in these sections
address nothing but qualified-immunity arguments. None of these
authorities discuss whether such opinions are admissible for Monell
claims. Accordingly, even if this Court were to conclude that Staton’s
opinions address topics that are irrelevant to Plaintiffs’ claims against
Rowden, Defendants have failed to offer any authority to suggest that
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that they lack relevance to his claims against the City. The proper
remedy, therefore, is not exclusion of this testimony, but an instruction
to the jury regarding consideration of the evidence.
Finally, it is important to note that Staton should be allowed to
opine on the investigation that was conducted because the evidence (or
lack thereof) supports Plaintiffs’ allegations of a cover-up of the City’s
failure to adequately supervise, discipline, or train its officers. .... Because
the evidence suggests that the City has evidence of – but has not
produced – voluminous evidence to suggest that it is covering up its
inadequate training programs, Staton should be permitted to opine about
its insufficiency by relying on the evidence that is already in the record.
Dkt. No. 96 at 6-9 (footnotes omitted).
Defendants reply that “Plaintiffs’ complaint does not allege a ‘cover-up,’ either
in this specific instance or as a matter of City policy”; that “Plaintiffs’ tactic of making
ad hoc additions to their pleadings and theories to shoehorn into the trial inadmissible
testimony should not be rewarded”; and that “the Court should disallow Staton’s
opinions about the adequacy of the Dallas Police Department’s post-shooting
investigations.” Dkt. No. 101 at 8-9.
The Court agrees with Defendants’ assessment of the irrelevance to Staton’s
expert testimony’s admissibility of Plaintiff’s justification based on an alleged cover-up
of the City’s failure to adequately supervise, discipline, or train its officers or alleged
failure to produce discovery materials. And, for the reasons that Defendants have
explained in their briefing, the Court determines that testimony by Staton regarding
his opinions on the adequacy of the Dallas Police Department’s post-shooting
investigation or the adequacy of the DPD’s Internal Affairs Division must be excluded
as legally irrelevant to, and unlikely to assist the jury in resolving, Plaintiffs’ actual

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claims against Officer Rowden and the City of Dallas based on Officer Rowden’s alleged
use of excessive force. Accord Flanagan, 2017 WL 2817424, at *4.
VI.

The subjective thought processes of DPD investigators.
Defendants also take issue with Staton’s opinions “in Report paragraph V-16

that the DPD investigators ignored or discounted affidavits by two witnesses to the
shooting, Harper’s gang associates Arthur Dixon and James Fullwood, because the
DPD investigators improperly discounted the affidavits.” Dkt. No. 83 at 24-25.
According to Defendants, “Staton ignores that the Dixon and Fullwood affidavits were
procured by the Plaintiffs, and did not exist at the time the DPD investigation had
concluded,” and “Staton’s opinion regarding the subjective thought processes and
motivations of the DPD investigators is inadmissible because it is based upon raw
speculation,” where “Staton has no information to support his guess as to what the
DPD’s investigators were thinking.” Id. at 25. Defendants assert that “any opinions by
Staton as to the subjective thought processes of the DPD’s investigators must be
excluded.” Id.
Plaintiffs respond that they “do not intend to ask Staton to opine on ... (b) the
internal thought process of DPD investigators.... Accordingly, this Court should deny
the arguments raised in section[] ... IV-B-6 ... can be denied as moot.” Dkt. No. 96 at
5 n.2.
Defendants reply that, while conceding “that their expert, Staton, may not offer
opinions on legal standards, proffer legal conclusions, opine on witness credibility,
speculate upon others’ subjective mental states or personal motivations, or speculate
-24-

on what might have happened if ‘proper procedures’ had been followed,” Plaintiffs are
mistaken that these issues are moot where the Motion to Exclude “seeks to prevent
testimony on the given topic areas” and so focuses “not merely upon what the Plaintiffs
intend to ask, but also on what their expert might say,” and “[t]he Court should grant
the Motion as to the subject matter of the foregoing sections of the Motion, so that the
testimony is precluded – not merely questions about the testimony.” Dkt. No. 101 at
2 (emphasis removed).
For the same reasons discussed above, the Court agrees with Defendants that
this portion of their Motion to Exclude is not moot and, as conceded by Plaintiffs and
for the reasons that Defendants explain in their briefing, determines that any
testimony by Staton of an opinion as to internal or subjective thought processes of the
Dallas Police Department’s investigators is excluded.
VII.

Officer Rowden’s use of deadly force was unjustified.
According to Defendants, “[i]n paragraph V-17 of his Report, Staton looks at the

facts through the perspective of the Plaintiffs’ alleged facts, and concludes that Officer
Rowden’s use of force was not justified.” Dkt. No. 83 at 25. Defendants assert that
“[t]his opinion should be excluded because a police procedures expert is not competent
to opine whether an officer’s actions were ‘justified’” and that “[t]he Court should
exclude the foregoing opinion, as well as all opinions by Staton that explicitly or
implicitly state a legal conclusion.” Id. at 25, 26.

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Plaintiffs respond that they “do not intend to ask Staton to opine on ... (c) legal
standards.... Accordingly, this Court should deny the arguments raised in section[] ...
IV-B-7 ... can be denied as moot.” Dkt. No. 96 at 5 n.2.
Defendants reply that, while conceding “that their expert, Staton, may not offer
opinions on legal standards, proffer legal conclusions, opine on witness credibility,
speculate upon others’ subjective mental states or personal motivations, or speculate
on what might have happened if ‘proper procedures’ had been followed,” Plaintiffs are
mistaken that these issues are moot where the Motion to Exclude “seeks to prevent
testimony on the given topic areas” and so focuses “not merely upon what the Plaintiffs
intend to ask, but also on what their expert might say,” and “[t]he Court should grant
the Motion as to the subject matter of the foregoing sections of the Motion, so that the
testimony is precluded – not merely questions about the testimony.” Dkt. No. 101 at
2 (emphasis removed).
For the same reasons discussed above, the Court agrees with Defendants that
this portion of their Motion to Exclude is not moot and, as conceded by Plaintiffs and
for the reasons that Defendants explain in their briefing, determines that any
testimony by Staton of an opinion in the form of a legal conclusion that Officer
Rowden’s use of force was not justified is excluded.
VIII. The DPD’s customs and practices were instrumental in an unlawful use of force.
Defendants explain that, “[i]n paragraph V-18 of his Report, Staton opines that
the jury ‘could believe the training Rowden received from the DPD (or lack thereof) and
the customs and practice of the DPD were instrumental in the tactics used by Rowden
-26-

that led to the unnecessary use of deadly force against Harper.” Dkt. No. 83 at 26.
Defendants contend that “[t]he Court should exclude this opinion because, as
demonstrated above, the ‘tactics’ used by Officer Rowden prior to the actual
confrontation with Harper are not relevant to the use-of-force inquiry.” Id.
Plaintiffs respond that
Defendants cite numerous authorities to support their argument that
Staton’s testimony is “not relevant to the excessive-force inquiry” and do
“not relate to any issue to be resolved with respect to the Plaintiffs’
constitutional claims.” Defendants, however, mistakenly assume that
Plaintiffs’ only constitutional claims arise out of Officer Rowden’s actions
(to which a qualified-immunity defense is available). As this Court is
certainly well aware, the Supreme Court of the United States has long
recognized that a plaintiff may assert a claim for constitutional violations
against a municipality. Not only can these claims can arise out of a
municipality’s unconstitutional custom or policy, they can also arise out
of a municipality’s failure to properly train its employees. Here, Plaintiffs
have alleged both.
This Court, therefore, should deny Defendants’ attempt to
hamstring Plaintiffs’ case by preventing them from offering evidence of
how a reasonable municipality would have trained its officers. It is well
established that evidence of inaction – specifically, failure to investigate
and discipline employees in the face of widespread constitutional
violations – can support an inference that an unconstitutional custom or
practice has been unofficially adopted by a municipality. The same result
should follow here: Staton’s testimony that the City of Dallas failed to
notice that Rowden did anything wrong – whether intentionally or
negligently – is certainly relevant to Plaintiffs’ Monell claims, and
Defendants offer no authorities to suggest otherwise.
Indeed, the authorities that Defendants cite in these sections
address nothing but qualified-immunity arguments. None of these
authorities discuss whether such opinions are admissible for Monell
claims. Accordingly, even if this Court were to conclude that Staton’s
opinions address topics that are irrelevant to Plaintiffs’ claims against
Rowden, Defendants have failed to offer any authority to suggest that
that they lack relevance to his claims against the City. The proper
remedy, therefore, is not exclusion of this testimony, but an instruction
to the jury regarding consideration of the evidence.
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Dkt. No. 96 at 5-8 (footnotes omitted).
Defendants reply that their “objections largely mirror their objections to Staton’s
anticipated testimony about supposed deviations from proper police procedure the
preceded Officer Rowden’s physical encounter with Harper, and the Officer Rowden’s
uses of force that are the issue in this litigation.” Dkt. No. 101 at 9 (emphasis
removed). According to Defendants, “[b]ecause Staton’s opinions do not relate to any
police department customs regarding use of force, or officer training on the use of force,
those opinions are not ‘closely related’ to Officer Rowden’s alleged use of unlawful
deadly force”; “those opinions will not be helpful to the jury, and should be excluded”;
and “Staton’s opinions are categorically irrelevant to the jury’s evaluation of the
reasonableness of Officer Rowden’s use of deadly force and Harper, and should be
excluded.” Id.
The Court GRANTS Defendants’ motion to exclude this testimony only in part.
For the reasons explained in the sections above, the Court excludes testimony by
Staton of opinion regarding training in connection with the events and actions that
preceded Officer Rowden’s physical encounter with Harper. But, as Defendants
concede, Plaintiffs may offer evidence regarding the City’s training of its police officers
that is pertinent to Plaintiffs’ claims that the City of Dallas and Officer Rowden are
liable based on Officer Rowden’s alleged use of excessive force against Harper.
IX.

A jury could believe racial bias played a part in Officer Staton’s use of force.
According to Defendants, “Staton opines in paragraph V-18 of his Report that

‘[i]t is also reasonable for the triers of fact to believe, after viewing all the evidence,
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that racial bias played some part in this use of force.’” Dkt. No. 83 at 20. Defendants
contend that “Staton’s opinion should be excluded for two reasons. First, Staton does
not even have an opinion that Officer Rowden acted out of racial bias,” and “it would
be clearly improper for Staton to inject race into the equation.” Id. at 26, 27. And,
second, “Plaintiffs have stipulated to the dismissal of all claims except for ‘excessive
force against the City and Rowden,’” and “[t]he Court has approved that stipulation.”
Id. at 27. Defendant argue that, “[t]herefore, the Court should disallow any raw
speculations by Staton that Officer Rowden’s actions were motivated by racial animus.”
Id. at 28.
Plaintiffs respond that they “do not intend to ask Staton to opine on ... (d)
Rowden’s racial bias. Accordingly, this Court should deny the arguments raised in
section[] ... IV-B-9 ... can be denied as moot.” Dkt. No. 96 at 5 n.2.
Defendants reply that, while conceding “that their expert, Staton, may not offer
opinions on legal standards, proffer legal conclusions, opine on witness credibility,
speculate upon others’ subjective mental states or personal motivations, or speculate
on what might have happened if ‘proper procedures’ had been followed,” Plaintiffs are
mistaken that these issues are moot where the Motion to Exclude “seeks to prevent
testimony on the given topic areas” and so focuses “not merely upon what the Plaintiffs
intend to ask, but also on what their expert might say,” and “[t]he Court should grant
the Motion as to the subject matter of the foregoing sections of the Motion, so that the
testimony is precluded – not merely questions about the testimony.” Dkt. No. 101 at
2 (emphasis removed).
-29-

For the same reasons discussed above, the Court again agrees with Defendants
that this portion of their Motion to Exclude is not moot and, as conceded by Plaintiffs
and for the reasons that Defendants explain in their briefing, determines that any
testimony by Staton of an opinion that Officer Rowden’s actions were motivated by
racial animus or racial bias is excluded.
X.

Opinions regarding deliberate indifference.
Defendants explain that “Paragraph V-19 of Staton’s Report largely concerns

alleged the deliberate indifference by the City” and that, “[s]etting aside Staton’s
conspicuous omission of the identity of a specific DPD official to whom the deliberate
indifference is to be attributed, the Court must exclude Staton’s opinions on deliberate
indifference.” Dkt. No. 83 at 28. Defendants argue that “[d]eliberate indifference, of
course, refers to a legal standard for imposing § 1983 liability on a municipality”; that
“expert witnesses are not competent to opine upon an individual’s mental state”; and
that “the Court must preclude any testimony by Staton regarding deliberate
indifference, especially opinions that purports to assign liability.” Id. at 28, 29.
Defendants further note that “[t]he Fifth Circuit and this Court have excluded similar
expert testimony on whether a person acted with deliberate indifference” and that
“Staton concedes that it is not his role to opine whether there was deliberate
indifference on the part of the City’s policymakers and, further, he had not actually
formed an opinion on that issue.” Id. at 29.

-30-

Plaintiffs respond that they “do not intend to ask Staton to opine on ... (c) legal
standards.... Accordingly, this Court should deny the arguments raised in section[] ...
IV-B-10 can be denied as moot.” Dkt. No. 96 at 5 n.2.
Defendants reply that, while conceding “that their expert, Staton, may not offer
opinions on legal standards, proffer legal conclusions, opine on witness credibility,
speculate upon others’ subjective mental states or personal motivations, or speculate
on what might have happened if ‘proper procedures’ had been followed,” Plaintiffs are
mistaken that these issues are moot where the Motion to Exclude “seeks to prevent
testimony on the given topic areas” and so focuses “not merely upon what the Plaintiffs
intend to ask, but also on what their expert might say,” and “[t]he Court should grant
the Motion as to the subject matter of the foregoing sections of the Motion, so that the
testimony is precluded – not merely questions about the testimony.” Dkt. No. 101 at
2 (emphasis removed).
For the same reasons discussed above, the Court again agrees with Defendants
that this portion of their Motion to Exclude is not moot and, as conceded by Plaintiffs,
determines that any testimony by Staton of an opinion as to whether any defendant
or agent or policymaker of the City of Dallas or the Dallas Police Department was
deliberate indifferent is excluded. Accord Flanagan, 2017 WL 2817424, at *4-*5.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part Defendants’ Motion to Exclude Testimony of the Plaintiffs’
Retained Expert Witness Jerry Staton [Dkt. No. 83].
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SO ORDERED.
DATED: December 6, 2017

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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