Guerrero et al v. Deane et al
Filing
233
MEMORANDUM OPINION re: 150 . This Court will deny Plaintiffs Motion to Exclude the Proffered Expert Testimony of Carlos Robles and Phillip Harrover.An appropriate Order will issue. Signed by District Judge James C. Cacheris on 9/10/12. (gwal, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ESPERANZA GUERERRO, et al.
Plaintiff,
v.
CHARLIE DEANE, et al.
Defendant.
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1:09cv1313 (JCC/TRJ)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Plaintiff’s Motion in
Limine to Exclude the Proffered Expert Testimony of Carlos
Robles and Phillip Harrover [Dkt. 150] (the “Motion”).
For the
following reasons, the Court will deny Plaintiffs’ Motion.
I. Background
A. Factual Background
The factual background of this case is recited in detail in
the Court’s October 27, 2010, Memorandum Opinion granting in
part and denying in part Defendants’ motion for summary judgment
and denying Plaintiffs’ motion for partial summary judgment.
See Guerrero v. Deane, 750 F. Supp. 2d 631 (E.D. Va. 2010).
Familiarity with that Memorandum Opinion is presumed.
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To summarize, on November 24, 2007, Defendant Officer David
Moore, an officer in the Prince William County Police Department,
went to Plaintiffs’ home in order to serve a summons on one
Antonia Munguia.
Plaintiff Esperanza Guerrero answered the door
and told Officer Moore that Ms. Munguia was not present.
Ms.
Guerrero then asked Officer Moore for his business card.
Officer Moore produced his card and stepped onto the threshold
of the Guerreros’ home.
The parties dispute what happened next.
According to Plaintiffs, Ms. Guerrero then began closing the
door, and Officer Moore attempted to force his way into the home.
According to Defendant, Ms. Guerrero initially took a step
backward while further opening the door, but then charged
forward and pushed Officer Moore out of the house.
The parties
agree that the door closed on Officer Moore’s leg or foot.
Officer Moore struggled against the door, attempting to enter
the home and arrest Ms. Guerrero.
While his foot was wedged in the door, Officer Moore called
for assistance.
The first officer to respond was Officer Luis
Potes, followed immediately by Officers Matthew Caplan and Adam
Hurley.
The officers pushed open the door, freeing Officer
Moore’s leg, and entered Plaintiffs’ home.
forced Ms. Guerrero to the floor.
The officers’ entry
As the officers were placing
Ms. Guerrero under arrest, her husband, Juan Guerrero, came
towards the officers, either running rapidly or walking fast.
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Once Mr. Guerrero was very close to the officers, an officer
deployed pepper spray on him.
Both Mr. Guerrero and Ms.
Guerrero were placed under arrest and placed in custody at the
Adult Detention Center.
Both suffered minor injuries as well.
As a result of the incident, Plaintiffs alleged violations of
the Fourth Amendment to the United States Constitution pursuant
to 42 U.S.C. § 1983 and asserted certain Virginia state-law
claims.
B. Procedural Background
On October 15, 2010, Plaintiffs filed a Memorandum of Law
in Support of Plaintiffs’ Motion in Limine to Exclude Proffered
Expert Testimony of Carlos Robles and Phillip Harrover (the
“Memorandum”) [Dkt. 158.]
On August 3, 2012, Defendant filed
his Opposition to Plaintiffs’ Memorandum.
[Dkt. 205.]
On
August 12, 2012, Defendants filed a Noitce of Corrected Document
re: Docket Entry 158 Motion in Limine re: Expert Testimony of
Carlos Robles and Phillip Harrover.
[Dkt. 211.]
II. Standard of Review
The purpose of a motion in limine is to allow the trial
court to rule in advance of trial on the admissibility and
relevance of certain forecasted evidence.
469 U.S. 38, 40 n.2 (1984).
Luce v. United States,
A court's ruling regarding a motion
in limine is "subject to change when the case unfolds,
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particularly if the actual testimony differs from what was
[expected]."
Luce, 469 U.S. at 41.
A district court's
evidentiary rulings are entitled to substantial deference and
will not be reversed absent a clear abuse of discretion."
United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994); see
also United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).
"[The Court of Appeals] will find that discretion to have been
abused only when the district court acted 'arbitrarily or
irrationally.'"
Id. (quoting United States v. Ham, 998 F.2d
1247, 1252 (4th Cir. 1993)).
III. Analysis
Rule 702 of the Federal Rules of Evidence, which was
amended effective December 1, 2000, to reflect the Supreme
Court’s rulings in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (U.S. 1993), and Kumho Tire Co. v. Carmichael, 526
U.S. 137 (U.S. 1999), now provides as follows:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based
upon sufficient facts or data, (2) the
testimony is the product of reliable
principles and methods, and (3) the witness
has applied the principles and methods
reliably to the facts of the case.
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Fed. R. Evid. 702.
Expert testimony, in order to be reliable,
“must be based on scientific, technical, or other specialized
knowledge and not on belief or speculation, and inferences must
be derived using scientific or other valid methods.”
Oglesby v.
General Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999)(citing
Daubert, 509 U.S. at 590, 592-93) (emphasis in original).
“Reliability of specialized knowledge and methods for applying
it to various circumstances may be indicated by testing, peer
review, evaluation of rates of error, and general acceptability.”
Id. (citing Daubert, 509 U.S. at 593-94).
A district court’s
decision with respect to the admissibility of expert scientific
testimony “is always a flexible one, and the court’s conclusions
necessarily amount to an exercise of broad discretion guided by
the overarching criteria of relevance and reliability.”
Id.;
see also Cooper, 259 F.3d at 200 (noting the Supreme Court’s
statement in Kumho Tire that trial judges “must have
considerable leeway in deciding in a particular case how to go
about determining whether particular expert testimony is
reliable”)(quoting Kumho Tire, 526 U.S. at 152).
As a general
matter, the qualifications of a witness to render expert
testimony are to be liberally judged under Rule 702.
United
States v. Perkins, 470 F.3d 150, 157 (4th Cir. Va. 2006)
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(quoting United States v. Figueroa-Lopez, 125 F.3d 1241, 1246-47
(9th Cir. 1997)).
Subject to certain exceptions, Federal Rule of Evidence
704(a) 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."
However, such testimony can be excluded if it is not “otherwise
admissible.”
Fed. R. Evid. 704(a).
As the Rules Advisory
Committee explained, “[t]he abolition of the ultimate issue rule
does not lower the bars so as to admit all opinions,” because
the expert testimony must be helpful to the trier of fact and
not waste time pursuant to Rules 701, 702, and 403. Fed. R. Evid.
704 Advisory Committee's Note.
Collectively, these rules of
evidence “afford ample assurances against the admission of
opinions which would merely tell the jury what result to reach,”
and require the court to “exclude opinions phrased in terms of
inadequately explored legal criteria.”
Id.
Opinion testimony
that states a legal standard or draws a legal conclusion by
applying law to the facts is generally inadmissible.
United
States v. McIver, 470 F.3d 550, 561-62 (4th Cir. 2006).
As a threshold matter, this Court finds that matters of
police procedure remain relevant in this case.
Indeed,
Plaintiffs have offered their own expert witness on police
procedure.
Defendant has stated that he intends to use his
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expert witnesses in part to rebut the testimony of Plaintiffs’
expert witness.
An expert witness need not have an identical
background as another expert witness to rebut the latter's
testimony, so long as both witnesses are qualified to testify as
experts on the same designated issues.
Pulse Med. Instruments,
Inc. v. Drug Impairment Detection Servs., Civil Action No. DKC
07–1388, 2012 WL 845550 (D.Md. 2012); see also Fed. R. Evid. 702.
From the outset, there exists no reason as to why Defendant
should be disallowed from offering expert witnesses as to police
procedure.
Plaintiffs assert that Robles and Harrover are not
qualified to testify as experts in this case because they do not
satisfy Daubert.
This Court has reviewed the record and will
allow Robles and Harrover to testify as experts relating to
matters of police procedure.
The both individuals have
demonstrated extensive experience in law enforcement.
However,
this Court will continue in its role as a warden against the
admission of impermissible evidence or testimony.
Both
witnesses are forbidden from making improper credibility
determinations, as doing so would usurp the jury’s role in
assessing credibility.
Expert witnesses are not permitted to
testify as to witness credibility.
See United States v. Dorsey,
45 F.3d 809, 815 (4th Cir. 1995); see also United States v.
Burgos, 94 F.3d 849 (4th Cir. 1996) (stating “determinations of
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credibility are within the sole province of the jury”)(quoting
United States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995));
Jacobs v. College of William and Mary, 517 F.Supp. 791, 794
(E.D.Va 1980)(“Issues of fact should be left to the
determination of the jury, whose duty it is to determine the
credibility of the witnesses [...]”); see also Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (U.S. 2000).
Further, because character or reputation is not currently at
issue in the instant civil case, evidence as to character or
reputation is not admissible.
See, e.g., Snead v. U.S., 217
F.2d 912, 914 (citing 20 Am.Jur., pp. 299 and 300).
This Court
will disallow any testimony on the part of Robles and Harrover
to offer impermissible character on behalf of the Defendant.
Additionally, the Court cautions that it will not allow the
“needless presentation of cumulative evidence” in this case.
Fed. R. Evid. 403.
Plaintiffs also object to the testimony on the witnesses on
the grounds that they seek to offer improper legal conclusions.
However, as this Court wrote in its recent opinion relating to
Defendant’s Motions in Limine, subject to certain exceptions,
Federal Rule of Evidence 704(a) 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."
However, such testimony can be
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excluded if it is not “otherwise admissible.”
704(a).
Fed. R. Evid.
As the Rules Advisory Committee explained, “[t]he
abolition of the ultimate issue rule does not lower the bar so
as to admit all opinions,” because the expert testimony must be
helpful to the trier of fact and not waste time pursuant to
Rules 701, 702, and 403. Fed. R. Evid.
Note.
704 Advisory Committee's
Collectively, these rules of evidence “afford ample
assurances against the admission of opinions which would merely
tell the jury what result to reach,” and require the court to
“exclude opinions phrased in terms of inadequately explored
legal criteria.”
Id.
Opinion testimony that states a legal
standard or draws a legal conclusion by applying law to the
facts is generally inadmissible.
United States v. McIver, 470
F.3d 550, 561-62 (4th Cir. 2006).
Although the Court will
disallow any otherwise improper testimony, it will not disallow
the witnesses solely on those grounds.
Furthermore, this Court reiterates that speculation is not
permissible, particularly with respect to the operative issues
in this case.
This Court will disregard his opinion on such
matters if they constitute mere speculation, not supported by
facts.
See Anderson v. National R.R. Passenger Corp., 866 F.
Supp. 937 (E.D.Va. 1994)(citing May v. Dover Elevator Co., 845
F.Supp. 377, 381 (E.D.Va. 1994) (finding purely speculative an
expert's theory that lacked physical evidence to support it but
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that was, according to the expert, “the only plausible
explanation”)); Stokes v. L. Geismar, S.A., 815 F.Supp. 904, 909
(E.D.Va. 1993), aff'd, 16 F.3d 411 (4th Cir. 1994) (holding that
an expert's testimony as to causation was mere speculation where
the expert himself admitted that his explanation of the cause
was not the only reasonable one); see also Rohrbough v. Wyeth
Labs. Co., 719 F.Supp. 470, 474 (N.D.W.Va. 1989), aff'd, 916
F.2d 970 (4th Cir. 1990).
IV. Conclusion
For these reasons, this Court will deny Plaintiffs’ Motion
to Exclude the Proffered Expert Testimony of Carlos Robles and
Phillip Harrover.
An appropriate Order will issue.
September 10, 2012
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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