United States District Court, D. Colorado
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 ...