United States District Court, D. Colorado
December 16, 2016
DEAN CARBAJAL, Plaintiff,
GILBERTO LUCIO, in his individual capacity, JAMES DIXON, in his individual capacity, MICHAEL O'NEILL, in his individual capacity, and JEFFREY WATTS, Investigator for the Second Judicial District, in his individual capacity, Defendants.
A. BRIMMER United States District Judge.
matter is before the Court on defendants James Dixon,
Gilberto Lucio, and Michael O'Neill's (collectively
the “Denver Defendants”) Motion to Strike
Untimely Expert Designations [Docket No. 855] and the Denver
defendants' Motion in Limine [Docket No. 868].
plaintiff originally alleged a multitude of claims against
numerous parties, the only claims that remain for trial are
plaintiff's claims that Sergeant James Dixon, Detectives
Michael O'Neill and Gilberto Lucio used excessive force
against him in violation of the Fourth or Fourteenth
Amendments, and Denver District Attorney's Office
Investigator Jeffrey Watts used excessive force against him
in violation of the Fourteenth Amendment. Docket No. 804 at
MOTION TO STRIKE UNTIMELY EXPERT DESIGNATIONS
Denver defendants seek to preclude each of plaintiff's
expert witnesses from testifying, with the exception of
Stephen Swan. Docket No. 855 at 1. On May 11, 2016, the
parties submitted their proposed final pretrial order. Docket
No. 818. In the proposed order, plaintiff identified 13
expert witnesses to be called at trial. Id. at 8. On
May 18, 2016, the magistrate judge ordered plaintiff to amend
his witness list and state the expected testimony for each of
his expert witnesses. Docket No. 822. On August 4, 2016,
plaintiff filed a supplement to the final pretrial order,
identifying five expert witnesses: Dan Montgomery, Charlie
Garcia, Al LaCabe, Perry Speelman, and Stephen Swan. Docket
No. 853 at 13-14. That supplement was incorporated by
reference into the final pretrial order. Docket No. 873 at 4.
Denver defendants state that plaintiff has failed to timely
disclose his experts, without a showing of excusable neglect,
and that plaintiff's failure to timely disclose has
severely prejudiced them. Docket No. 855 at 3-7. In
particular, the Denver defendants argue that plaintiff has
failed to disclose adequately the facts and opinions to which
each witness is expected to testify. Id. at 6. The
Denver defendants also argue that the expert witnesses should
be precluded from testifying because their testimony will not
help the trier of fact to understand the evidence or
determine a fact in issue as required by Fed.R.Evid. 702.
Docket No. 855 at 8-10. Plaintiff responds that he disclosed
his expert witnesses on December 20, 2012. Docket No. 861 at
1. As support, plaintiff attaches a copy of his expert
disclosure to his response, which lists ten expert witnesses
and includes a certificate of service stating that it was
mailed to the clerk of court and served on counsel via
electronic mail. Docket No. 861 at 4-10. The Denver
defendants reply that neither the Denver defendants nor
defendant Watts have any record of receiving plaintiff's
expert disclosures. Docket No. 865 at 2-3. Moreover, the
Court notes that plaintiff's expert disclosure was not
received and docketed by the Court. It is not necessary,
however, to resolve the dispute over whether plaintiff, in
fact, served his expert disclosure in 2012 for the reasons
Rule of Civil Procedure 26(a)(2)(C) specifies the disclosure
requirements for expert witnesses who are not required to
file a written report. The party calling such an expert must
disclose to the other side: (1) the subject matter on which
the witness is expected to present evidence under Fed.R.Evid.
702, 703, or 705; and (2) a summary of the facts and opinions
to which the witness is expected to testify. Fed.R.Civ.P.
26(a)(2)(C)(i) and (ii). “The purpose of Rule
26(a)(2)'s expert disclosure requirements is to eliminate
surprise and provide the opposing party with enough
information regarding the expert's opinions and
methodology to prepare efficiently for deposition, any
pretrial motions and trial.” Cook v. Rockwell
Int'l Corp., 580 F.Supp.2d 1071, 1122 (D. Colo.
2006). If the disclosed expert is a non-retained expert,
citations to the record, deposition testimony, or other
materials without a “clear indication of what sections
will be used or how the facts or opinions will be framed and
presented in testimony does not constitute a ‘summary
of the facts and opinions to which the witness is expected to
testify' within the meaning and requirements of Rule
26(a)(2)(C)(ii).” A.R. by Pacetti v. Corp. of
President of Church of Jesus Christ of Latter-Day
Saints, No. 12-cv-02197-RM-KLM, 2013 WL 5462277, at *3
(D. Colo. Sept. 30, 2013).
expert disclosures fail to describe the facts that his
proffered experts will rely upon. Docket No. 861 at 5-6, 8-9.
For example, plaintiff states that Charlie Garcia will
testify to various training failures by the Denver Police
Department and testify about “formal law enforcement
practices and standards.” Id. at 5, ¶ 3.
This disclosure fails to identify any specific omission in
the training of Denver Police Department officers or specific
practice or policy. Id. Plaintiff's disclosures
regarding the other experts are equally devoid of any facts
on which they rely. Failing to disclose the facts upon which
the experts' opinions rely does not provide the
defendants with sufficient information to prepare for trial
in this case.
plaintiff's expert disclosures fail to describe in
sufficient detail the opinions that his experts will offer.
Docket No. 861 at 5-6, 8-9. Plaintiff states that Perry
Speelman, a Sergeant for the Denver Police Department,
“has expert knowledge of the correct techniques
incorporated by the DPD, training with respect to search and
seizures under the 4th Amend. and use of force,
and the cultures maintained by him and Fellow
officers.” Id. at 9, ¶ 10. This expert
disclosure does not state what Sgt. Speelman's opinions
are, but rather generally identifies the subject of his
testimony. Plaintiff's disclosures regarding the other
experts are similarly deficient. The disclosure of specific
opinions is necessary to provide defendants with sufficient
notice to prepare for trial.
Rule of Civil Procedure 37(c) allows a district court to
admit expert witness testimony despite the failure to comply
with Rule 26, but only so long as the violation is
“justified or harmless.” Jacobsen v. Deseret
Book Co., 287 F.3d 936, 952- 53 (10th Cir. 2002) (citing
Fed.R.Civ.P. 37). In determining whether the violation of
Rule 26 was justified or harmless the Court should consider
the following factors: “(1) the prejudice or surprise
to the party against whom the testimony is offered; (2) the
ability of the party to cure the prejudice; (3) the extent to
which introducing such testimony would disrupt the trial; and
(4) the moving party's bad faith or willfulness.”
Id. at 953 (citation omitted). The burden to
demonstrate substantial justification and the lack of harm is
on the party who failed to make the required disclosure.
A. H., ex rel. Hohe v. Knowledge Learning Corp.,
2010 WL 4272844, at *5 (D. Kan. Oct. 25, 2010).
plaintiff responds to defendants' motion by stating that
his expert disclosure was timely, he provides no
justification for the inadequacy of his expert disclosures.
Docket No. 861 at 2. The Court finds that the Denver
defendants have been significantly prejudiced and are unable
to adequately prepare to rebut plaintiff's proffered
plaintiff's disclosure met the requirements of Rule
26(a)(2)(C), plaintiff fails to demonstrate that the
experts' testimony will assist the trier of fact. Expert
testimony is appropriate if “the expert's
scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to
determine a fact in issue.” Fed.R.Evid. 702(a).
to plaintiff's expert disclosure, Dan Montgomery is a
former Chief of Police for the Westminster Police Department
and will testify about the “practices, policies, and
customs of the Denver Police Department.” Docket No.
853 at 13. Charlie Garcia, a former Manager of the Department
of Safety, which oversees the Police Department, is
identified as “an expert in constitutional law and the
practices and policies of Denver Police Department.”
Id. Al LaCabe, also a former Manager of the
Department of Safety, has “expert knowledge concerning
the unconstitutional policies, practices and customs of the
Denver Police Department.” Id. at 13-14. Perry
Speelman, a Sergeant in the Denver Police Department,
“will testify . . . concerning the practices and
policies of the Denver Police Department.” Id.
apparently seeks to introduce evidence of unconstitutional
police policies and practices to show that the Denver
defendants acted in accordance with those
policies. Docket No. 853 at 13-14. However, the City
and County of Denver was dismissed from this lawsuit because
the magistrate judge found that “there is no evidence
of any specific policy, custom, or act which could support
[plaintiff's Monell claims].” Docket No.
783 at 55-56 (discussing municipal liability under Monell
v. Dep't of Social Servs., 436 U.S. 658 (1978));
see also Docket No. 804 at 17. Plaintiff cannot
introduce evidence of allegedly unconstitutional policies on
which the Court has already granted summary judgment to
defendants. Even if such evidence was not precluded by the
dismissal of plaintiff's Monell claim, plaintiff
fails to show that such evidence is relevant to an excessive
force claim. See Meredith v. Lake Cty. Sheriff, 2016
WL 4751198, at *3 (N.D. Ind. Sept. 13, 2016) (bifurcating a
trial where plaintiff alleged that
“unconstitutional/constitutionally deficient policies,
practices, procedures, and/or customs in effect . . .
resulted in the excessive and unreasonable force”
because “[i]f a person has suffered no constitutional
injury at the hands of the individual police officer, the
fact that the departmental regulations might have
authorized the use of constitutionally excessive
force is quite beside the point”) (quoting City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986)
(emphasis in original). As a result, the Court will preclude
plaintiff from calling Dan Montgomery, Charlie Garcia, Al
LaCabe, and Perry Speelman as expert witnesses.
MOTION IN LIMINE
their motion in limine, the Denver defendants seek
to preclude plaintiff from calling certain witnesses, to
quash subpoenas issued to those witnesses, and to exclude
certain exhibits. Docket No. 868 at 1.
Standard of Review
Federal Rules of Evidence permit the admission of all
relevant evidence subject to the limitations provided by the
Rules of Evidence and other laws. See Fed. R. Evid.
402. Evidence is relevant if “(a) it has any tendency
to make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in
determining the action.” Fed.R.Evid. 401. Even relevant
evidence may be excluded if “its probative value is
substantially outweighed by . . . unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.”
Fed.R.Evid. 403. The Federal Rules of Evidence also limit the
testimony of a lay witness to matters of which the witness
has personal knowledge. Fed.R.Evid. 602.
analyzing an excessive use of force claim under the Fourth
Amendment, the fact finder must “analyze whether the
force used to effectuate an arrest violates an
individual's Fourth Amendment Rights under the
‘objective reasonableness' standard of the Fourth
Amendment.” Marquez v. City of Albuquerque,
399 F.3d 1216, 1220 (10th Cir. 2005) (citing Graham v.
Connor, 490 U.S. 386, 388 (1989)). “Reasonableness
is evaluated under a totality of the circumstances approach
which requires that we consider the following factors: the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to
evade arrest by flight.” Weigel v. Broad, 544
F.3d 1143, 1151-52 (10th Cir. 2008) (quoting Graham,
490 U.S. at 396) (internal quotations omitted).
process clause of the Fourteenth Amendment, in contrast, is
only violated in the context of an excessive force claim when
the actions of the individual “can properly be
characterized as arbitrary, or conscience shocking. . . .
[C]onduct intended to injure in some way unjustifiable by any
government interest is the sort of official action most
likely to rise to the conscience-shocking level.”
Cty. of Sacramento v. Lewis, 523 U.S. 833, 847-48
(1998). Under the due process standard, the f actors relevant
to whether the use of force is excessive are: “(1) the
relationship between the amount of force used and the need
presented; (2) the extent of the injury inflicted; and (3)
the motives of the . . . officer.” Ellis v. City of
Lindsay, 1998 WL 879818, at *5 (10th Cir. Dec. 17, 1998)
(unpublished) (quoting Latta v. Keryte, 118 F.3d
693, 702 (10th Cir. 1997)).
Witnesses to be Excluded
Denver defendants seek to exclude a number of witnesses. The
Court considers only those witnesses about whom sufficient
information is available to make a ruling at this time.
seeks to call Angela Hunt, a Denver City Attorney, to testify
that she confessed Mr. Carbajal's motion to dismiss the
charges brought against him arising out of the April 29, 2009
arrest. Docket No. 853 at 7-8, ¶ 6. Plaintiff states
that Ms. Hunt will testify that there was no probable cause
to charge Mr. Carbajal on that occasion. Id. The
Denver defendants concede that the April 29, 2009 charges
against plaintiff were dropped, but state that Ms. Hunt's
testimony will be both irrelevant and confusing. Docket No.
868 at 5. Where there is no claim for unlawful arrest or
detention, the presence of probable cause is irrelevant.
See Scott v. City of Wichita, 109 F. App'x 201,
205 (10th Cir. 2004) (unpublished) (affirming the trial
court's decision to “exclude as irrelevant evidence
of dismissal of  assault charges”). The Court finds
that the proposed testimony of Ms. Hunt is irrelevant and
plaintiff shall be precluded from calling Ms. Hunt.
seeks to call David Cooperstein, the Denver defendants'
counsel of record, because he was “personally involved
in the intimidation and harassment of Kathy Jones and
Victoria Carbajal in an effort to coerce them to not
testify.” Docket No. 853 at 6, ¶ 17. Plaintiff
also states that Mr. Cooperstein has knowledge concerning the
concealment of the identities of Ms. Jones and Anthony
Schluck. Id. The magistrate judge has already
addressed and rejected plaintiff's allegations regarding
witness intimidation and the concealment of evidence. Docket
Nos. 753 at 8-19, 854 at 3-5. The Court finds that the
proposed testimony of Mr. Cooperstein is irrelevant and
unduly prejudicial to the Denver defendants. Plaintiff shall
be precluded from calling Mr. Cooperstein.
states that Darin Desel, a former defendant in this case,
will testify about “the cover up of this alleged use of
excessive force” and the “standard practices
concerning . . . civil suits brought against police
officers.” Docket No. 853 at 3, ¶ 5. Mr. Desel was
dismissed from this case due to his lack of participation in
the relevant events. Docket No. 783 at 34, 38; Docket No. 804
at 17. In his declaration in support of summary judgment, Mr.
Desel stated that plaintiff's allegation that Mr. Desel
participated in his arrest “appears to be based on a
typographical error” and that he has “never
arrested Plaintiff Dean Carbajal and did not personally
participate in his arrest on April 28-29, 2009.” Docket
No. 700-10 at 1-2. Plaintiff does not offer any evidence to
contradict Mr. Desel's declaration other than by
referencing the apparent typo in the Arrest Hardcopy. Docket
No. 853 at 3, ¶ 5. The Court finds that the proposed
testimony of Mr. Desel should be excluded due to his lack of
personal participation and because the standard practices of
the Denver Police Department in addressing civil suits
brought against police officers is irrelevant to the
excessive force claims. Plaintiff shall be precluded from
calling Mr. Desel.
Charlie Garcia, Robert White, Gerald Whitman, and Dan
seeks to call several former and current Denver officials at
trial. Plaintiff states that Charlie Garcia will testify
about the “policies, customs and cultures in the Denver
Police Department, ” Docket No. 853 at 7, ¶ 5;
Robert White, the current Denver Chief of Police, will
testify about the investigation into the excessive use of
force in this matter and “training and discipline of
officers for using improper force, ” id. at
8-9, ¶ 8; Gerald Whitman, a former Denver Chief of
Police, “may testify concerning the Denver Police
Departments Operational Manual in place during the
2009” arrest, id. at 9, ¶ 9; and Dan
Montgomery of “Professional Police Consulting”
will testify about his investigations into the “culture
of violence and deceptive conduct that has been maintained in
the Denver Police Department.” Id. at 11,
noted above, the existence of unconstitutional policies that
authorize or allow officers to use excessive force, while
relevant to an inquiry into Monell liability against
the entity that authorized those policies, is not relevant to
whether the remaining defendants in this case used excessive
force against plaintiff. Plaintiff has not indicated, other
than by a general assertion, that Chief of Police White has
any personal knowledge about the facts of this case.
will be precluded from calling Charlie Garcia, Robert White,
Gerald Whitman, and Dan Montgomery in this matter.
states that Mr. Keefer, a Deputy Sheriff for the Denver
Sheriff's Department, attacked plaintiff, apparently
sometime after the incidents involved in this case, in
“retaliation for his civil actions against Denver
Police Officers and the City of Denver.” Docket No. 853
at 6, ¶ 18. The Court finds that the proposed testimony
of Mr. Keefer is irrelevant to the claims in this case, and
plaintiff shall be precluded from calling Deputy Keefer.
that the Denver defendants' Motion to Strike Untimely
Expert Designations [Docket No. 855] is granted. It is
that Dan Montgomery, Charlie Garcia, Al LaCabe, and Perry
Speelman are struck from plaintiff's list of expert
witnesses, see Docket Nos. 853, 873, and plaintiff
is precluded from calling them as experts. It is further
that the Denver defendants' Motion in Limine
[Docket No. 868] is granted in part. It is further
that plaintiff is precluded from calling Angela Hunt, David
Cooperstein, Darin Desel, Charlie Garcia, Robert White,
Gerald Whitman, Dan Montgomery, and Andrew Keefer.
 Because plaintiff is proceeding
pro se, the Court construes his filings liberally.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
 In both the motion to strike and the
motion in limine, the Denver defendants cite to
cases where the Tenth Circuit has held that a violation of
department rules may not be used to prove a constitutional
violation. Docket Nos. 855 at 9-10, 868 at 7-8. These cases
are irrelevant because plaintiff does not seek to prove that
defendants violated internal policies; rather,
plaintiff seeks to demonstrate that the defendants in this
case complied with unconstitutional