Katterman v. Salt Lake County et al
MEMORANDUM DECISION AND ORDER granting 60 Motion in Limine. The Court EXCLUDES Propositions #1, #2, #3, and #4 as inadmissible expert testimony. Signed by Magistrate Judge Evelyn J. Furse on 3/30/2017. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SALT LAKE COUNTY, POLICE CHIEF
JAMES D. WINDER, KEVIN S. BARRETT,
OFFICER KYLE GLEUE, OFFICER JARED
ANGELL, UNIFIED POLICE DEPARTMENT
OF GREATER SALT LAKE, also known as or
functioning as SALT LAKE COUNTY
SHERIFF, and JOHN DOES 1-15,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION IN LIMINE TO EXCLUDE
TESTIMONY OF PLAINTIFF’S EXPERT
SYLVAN MALIS (ECF No. 60)
Case No. 2:13-CV-1122-EJF
Magistrate Judge Evelyn J. Furse
Defendants Salt Lake County, Police Chief James D. Winder, Officer Kevin S. Barrett,
Officer Kyle Gleue, Officer Jared Angell, the Unified Police Department, and the Salt Lake
County Sheriff’s Office (“Defendants”) move, in limine, to exclude the expert testimony of
James Katterman’s Expert, Sylvan Malis, used in Mr. Katterman’s Opposition to Defendants’
Motion for Summary Judgment, (ECF No. 57). (Defs.’ Obj. to, & Mot. in Limine to, Exclude
Test. of Pl.s’ Canine Expert Sylvan Malis (Mot. to Exclude), ECF No. 60.) Defendants seek to
exclude Mr. Malis’s testimony on four specific propositions:
[1.] “Mr. Malis, while stating he had received no specific training in analyzing dog
bites, did not concede that he had no expertise in this matter. He said he had
received medical/EMT training that, combined with his experience with dogs,
gave him the ability to distinguish what he called a “laceration” from a
“puncture.” (Doc. 57, Response to Defendants Fact #52)
[2.] “Sylvan Malis testified he reviewed a summary of Vortex and Officer
Barrett’s training certifications in preparation for his report” (Doc. 57, Fact
#11) (emphasis added)
[3.] “Mr. Malis testified that because Vortex was not trained in tracking or trailing,
it was unreasonable for Officer Barrett to allow Vortext [sic] to engage Mr.
Katterman because he could not have known that it was Mr. Katterman sitting
next to the driveway.” (Doc. 57, Fact #12)
[4.] “Mr. Malis testified that, given the documents he had reviewed, it was his
opinion that Officer Barrett was not adequately trained and supervised as a K9 handler.” (Doc. 57, Fact 13)
(Mot. to Exclude 2, ECF No. 60.) Having considered the parties’ briefing and the case record, the
Court GRANTS Defendants’ Motion.1 The Court will exclude Mr. Malis’s testimony on each
proposition as inadmissible expert testimony for purposes of the Summary Judgment Motion.
To determine the admissibility of an expert opinion, this Court applies a two-part test. Conroy
v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013). First, Mr. Katterman bears the burden of
demonstrating that the expert has the qualifications to opine on the designated topic by reason of
“knowledge, skill, experience, training, or education.” Id. (quoting Fed. R. Evid. 702). For the
proffered expert to pass this initial hurdle, s/he must possess expertise in the “particular field” of the
subject opined upon, or the subject must fall “within the reasonable confines” of the person’s
expertise. Id. at 1168-69 (quoting LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.
2004); Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001)). The
second step asks whether “the proposed expert testimony is both reliable and relevant.” Id. at 1168
(quoting United States v. Rodriguez-Felix¸ 450 F.3d 1117, 1122 (10th Cir. 2006)). In applying this
test, the Court functions as a gatekeeper, ensuring that it only admits testimony from qualified
witnesses with “knowledge [that] will help the trier of fact to understand the evidence or to determine
Pursuant to Civil Rule 7-1(f) of the Rules of Practice for the United States District Court for the
District of Utah, the undersigned finds oral argument unnecessary and makes its decision on the
basis of the written memoranda.
a fact in issue.” Fed. R. Evid. 702(a); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
589 (1993) (describing gatekeeper function).
Defendants move to exclude Mr. Katterman’s use of Sylvan Malis with regards to four distinct
propositions. (Mot. to Exclude 2, ECF No. 60 (“Mr. Katterman cites to Mr. Malis for the following
four propositions…”).) The Court will discuss the first proposition separately and then address the
second, third, and fourth proposition together because they share the same subject matter.
The Court Finds Mr. Malis’s Expert Testimony on Proposition #1 Inadmissible
Defendants seek to exclude consideration of Mr. Malis’s opinion that Mr. Katterman suffered
a laceration not a puncture wound. (Mot. to Exclude 2, ECF No. 60.) Defendants challenge Mr.
Malis’s medical expertise and the reliability of his conclusions regarding the appearance of dog bites.
(Mot. to Exclude 9-10, ECF No. 60.) Defendants argue that Mr. Katterman’s failure to address
Sylvan Malis’s medical expertise in his Opposition, and how it qualifies him to opine on dog bites,
means he concedes the point. (Reply Mem. in Supp. of Defs.’ Obj. to, and Mot. in Limine to,
Exclude Test. of Pl.s’ Canine Expert Sylvan Malis (Reply) 2-3, ECF No. 65.) The burden of
showing the admissibility of the testimony falls on the expert testimony’s proponent. Conroy, 707
F.3d at 1168. Absent any argument to the contrary, (see Pl.s’ Resp. Mem. in Opp’n to Defs.’ Obj. to,
and Mot. in Limine to, Exclude Test. of Pl.s’ Canine Expert Sylvan Malis (Opp’n), ECF No. 64),
the Court excludes Mr. Malis’s opinion concerning whether Mr. Katterman suffered a laceration or a
puncture for purposes of summary judgment.
The Court finds Mr. Malis’s Expert Testimony on Propositions #2, #3, and #4
The Defendants seek to exclude Mr. Malis’s opinion that Officer Barrett and Vortex received
inadequate training, rendering deployment of Vortex unreasonable, as well as Mr. Malis’s testimony
that he reviewed summaries of Officer Barrett and Vortex’s training certifications. (Mot. to Exclude
2, ECF No. 60.) For the Court to admit Mr. Malis’s expert testimony regarding Vortex’s training and
capabilities, as well as Officer Barret’s training, Mr. Katterman must demonstrate Mr. Malis’s
qualifications in this subject area, either through expertise in the “particular field” or experience such
that these topics fall “within the reasonable confines” of Mr. Malis’s expertise. Conroy, 707 F.3d at
Mr. Katterman argues that Mr. Malis possesses the qualifications necessary to opine on “the
skills and requirements necessary for employment as a police dog” because of his background training
dogs for security and law enforcement purposes. (Opp’n 5, ECF No. 64.) Mr. Malis founded
Property Security Systems as a security alarm company in approximately 1975 and worked as a
supervisor and dog trainer there until the mid-1980s. (Malis Dep. 16, 44-48, Exh. 1, ECF No. 60-1.)
During that time period, Mr. Malis personally trained approximately ten to twenty dogs. (Id. at 45.)
Mr. Malis does not know whether he had a personal role in training any dogs that went on to work at
police or sheriff’s departments but estimates that Property Security Systems sent five to ten dogs to
law enforcement agencies during that time period. (Id. at 46.) The company never certified dogs
directly but prepared them to “be pretty close to being able to pass any certifying organization’s…
procedures.” (Id. at 48.) Mr. Malis prepared dogs by incorporating the “best parts” of various
certification requirements into his dog training program, which he based upon the Koehler system of
dog training. (Id. at 43, 48.)
After Property Security Systems closed down in the mid-1980s, Mr. Malis continued training
dogs, although none of these dogs went to law enforcement agencies; rather he trained all of them “for
basic asset protection.” (Id. at 48-49.) In his post-Property Security Systems dog work, Mr. Malis
continued to include “certain functions” of police dogs in his training. (Id. at 51.)
Mr. Katterman cites Ralston v. Smith & Nephew Richards, Inc. for the proposition that “a lack
of specialization will not affect the admissibility of an expert’s opinions” so long as the expert stays
within the reasonable confines of his expertise. (Opp’n 5-6, ECF No. 64 (citing 275 F.3d 965, 969
(10th Cir. 2001) (quoting Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991))).)
Defendants cite the same case in their Reply, interpreting it to say, “general expertise in an area
does not qualify someone as an expert in a specific area.” (Reply 4, ECF No. 65 (citing Ralston,
275 F.3d at 969).) Turning to Ralston directly, the Tenth Circuit held the district court did not
abuse its discretion when it determined that the proffered expert lacked the requisite
qualifications, despite a familiarity with general principles and concepts of the field. Ralston,
275 F.3d at 970. The portion of Ralston cited by Mr. Katterman quotes another case, Compton v.
Subaru. Ralston, 275 F.3d at 969-70 (quoting 82 F.3d 1513 (10th Cir. 1996)). Compton, in
turn, quotes the Tenth Circuit in Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991).
Thus, tracing Mr. Katterman’s proposition back to its roots brings us to a pre-Daubert opinion. In
fact, the Ralston court warns, “Compton 's citation to Wheeler v. John Deere for the precept that
reliance upon general principles and concepts is sufficient for admissibility of expert testimony is itself
questionable as Wheeler is a pre-Daubert opinion.” Ralston, 275 F.3d at 969-970. Ralston also
cautions overreliance on Compton, “the Compton court merely held that the trial court did not abuse
its discretion when it admitted expert testimony based upon the expert's familiarity with general
engineering principles and concepts. That is a far cry from suggesting that a district court always
abuses its discretion when it excludes an expert who may have some marginal familiarity with general
concepts in the relevant field.” Id.
Mr. Malis, by his own admission, has only trained roughly ten dogs since the mid-1980s, and
he trained all of those dogs for “basic asset protection,” not law enforcement. (Malis Dep. 48-49, Exh.
1, ECF No. 60-1.) Mr. Malis trained dogs for various capacities from the mid-1970s to mid-1980s,
and during that period his company successfully sent five to ten dogs to law enforcement agencies.
(Id. at 46.) Mr. Malis does not know whether he had a personal role in training any of these agencybound dogs, and Mr. Malis never certified any dogs for police work. (Id. at 45-46.) Rather Property
Security Systems prepared dogs to meet some requirements of various certification processes. (Id. at
46-47.) Neither Mr. Malis nor his company ever trained police dogs with their officer or officers by
themselves. (Id. at 47.) Mr. Malis admits at least six different organizations certify dogs for police
work, each with different standards, and he has never taken a certification class or “been certified as a
certifier.” (Id. at 47-48.)
Whatever role Mr. Malis played in preparing dogs to meet police certification requirements
ended thirty years ago. The Court finds no evidence to support the claim that Mr. Malis has remained
current in the requirements of police dog certification or that his dog training knowledge meets any
objective standards. In the intervening three decades, by his own admission Mr. Malis has only
trained approximately ten dogs, all for private security purposes. (Id. at 49.) Mr. Malis has worked in
several unrelated fields since the mid-1980s, including computer consulting, wireless cable television,
importing, and drinking water. (Id. at 33, 159-60.) Mr. Malis never received any certifications and
supplied no objective evidence to support his continued education in, or knowledge of, dog training.
(Id. at 51-55, 57-59.) At best, Mr. Malis retains some familiarity with the general concepts and
principles of police dog training and handling and continues to read about such. By comparison, in
Ralston and Compton the proposed experts held some objective measure of knowledge – certification
as an orthopedic surgeon and an aerospace and mechanical engineer respectively. Ralston, 275 F.3d
at 969; Compton, 82 F.3d at 1519-20. According to Ralston, general familiarity with the relevant field
may provide grounds to admit testimony. Ralston, 275 F.3d at 970. However, Ralston also
permits courts to exclude expert testimony on specific subjects where the expert merely claims
general familiarity with the field. In this case, Mr. Katterman has failed to put forth evidence to show
Mr. Malis qualifies as an expert in either police dog training or officer training in police dog handling.
The undersigned finds that based on the evidence put forward by Mr. Katterman, Mr. Malis lacks
current expertise on the specific topic areas in question. The Court EXCLUDES Mr. Malis’s
testimony on Propositions #2, #3, and #4 because Mr. Malis fails to qualify as an expert in police dog
training or officer training in police dog handling.
Additionally, Mr. Malis’s testimony regarding Proposition #2 fails step two of the
admissibility test because it would not help the Court “to understand the evidence or to determine a
fact in issue.” Fed. R. Evid. 702; Conroy, 707 F.3d at 1168-69. Whether Mr. Malis reviewed training
certificates does not speak to a material issue given the Court’s exclusion of Propositions #3 and #4.
For the reasons discussed above, the Court GRANTS Defendants’ Motion. The Court
EXCLUDES Propositions #1, #2, #3, and #4 as inadmissible expert testimony.
DATED this 30th day of March 2017.
BY THE COURT:
EVELYN J. FURSE
United States Magistrate Judge
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