United States District Court, D. Colorado
FRANKY L. SESSION, Plaintiff,
DEPUTY SHERIFF CAPTAIN ROMERO, in his individual capacity, and DEPUTY SHERIFF SERGEANT JORDAN, in his individual capacity, Defendants.
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Motion to
Strike Defendants' Expert's Report and in the
Alternative Exclude Portions Thereof [Docket No. 392],
Defendants' Fed.R.Evid. 702 Motion to Exclude Expert
Testimony of David Teigen [Docket No. 393], and
Plaintiff's Motion for Leave to Serve a Supplemental
Expert Report [Docket No. 405]. This case is set for a
four-day jury trial beginning on January 28, 2019. Docket No.
359. Plaintiff alleges that defendants, who are deputies from
the Denver Sheriff's Department, violated his Fourteenth
Amendment due process rights by keeping him in a 23-hour per
day segregation unit at Denver Detention Center
(“DDC”), which is operated by the Denver
Sheriff's Department, from March 24, 2013 to December 18,
2013. Docket No. 300 at 2.
MOTION TO EXCLUDE UNDER FED. R. EVID. 702
admissibility of expert testimony is governed by Federal Rule
of Evidence 702, which provides:
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 if: (a) 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; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. As the rule makes clear, while required,
it is not sufficient that an expert be qualified based upon
knowledge, skill, experience, training, or education to give
opinions in a particular subject area. Instead, the Court
must “perform a two-step analysis.” 103
Investors I, L.P. v. Square D Co., 470 F.3d 985, 990
(10th Cir. 2006). After determining whether the expert is
qualified, the Court must assess whether the specific
proffered opinions are reliable. See id.;
Fed.R.Evid. 702 (requiring that the testimony be “based
on sufficient facts or data, ” be the “product of
reliable principles and methods, ” and reflect a
reliable application of “the principles and methods to
the facts of the case”).
702 thus imposes on the district court a “gatekeeper
function to ‘ensure that any and all scientific
testimony or evidence admitted is not only relevant, but
reliable.'” United States v. Gabaldon, 389
F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). To
perform this role, the Court must “assess the reasoning
and methodology underlying the expert's opinion, and
determine whether it is both scientifically valid and
applicable to a particular set of facts.” Dodge v.
Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003)
(citing Daubert, 509 U.S. at 592-93). In assessing
reliability, “the court may consider several
nondispositive factors: (1) whether the proferred theory can
and has been tested; (2) whether the theory has been subject
to peer review; (3) the known or potential rate of error; and
(4) the general acceptance of a methodology in the relevant
scientific community.” 103 Investors I, L.P. v.
Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). These
factors are not applicable in every case. See Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141, 150-53 (1999).
Indeed, the trial court has “the sam e kind of latitude
in deciding how to test an expert's reliability
. . . as it enjoys when it decides whether or not
that expert's relevant testimony is reliable.”
Id. at 152. Regardless of the specific factors
applied, however, the objective of Daubert's
gatekeeping requirement remains the same: to ensure that an
expert “employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field.” Id.
the proponent of the challenged testimony has the burden of
establishing admissibility, United States v.
Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (citing
Ralston v. Smith & Nephew Richards, Inc., 275
F.3d 965, 970 n.4 (10th Cir. 2001)), the reliability standard
does not require proof “that the opinion is objectively
correct, but only that the witness has sufficient expertise
to choose and apply a methodology, that the methodology
applied was reliable, that sufficient facts and data as
required by the methodology were used and that the
methodology was otherwise reliably applied.” United
States v. Crabbe, 556 F.Supp.2d 1217, 1221 (D. Colo.
2008) (internal citation omitted).
the standard for reliability is met, the Court must also
ensure that the proffered testimony will assist the trier of
fact. See Kumho Tire, 526 U.S. at 156;
United States v. Rodriguez-Felix, 450 F.3d
1117, 1122-23 (10th Cir. 2006). “Relevant expert
testimony must logically advance[ ] a material aspect of the
case and be sufficiently tied to the facts of the case that
it will aid the jury in resolving a factual dispute.”
United States v. Garcia, 635 F.3d 472, 476 (10th
Cir. 2011) (internal quotation marks and citations omitted).
In assessing whether expert testimony will assist the trier
of fact, the Court should also consider “whether the
testimony ‘is within the juror's common knowledge
and experience,' and ‘whether it will usurp the
juror's role of evaluating a witness's
credibility.'” Id. at 476-77 (quoting
Rodriguez-Felix, 450 F.3d at 1123).
has designated David Teigen as an expert in the field of
corrections. Mr. Teigen's expert report includes five
opinions that plaintiff anticipates offering at trial:
1. Under generally accepted correctional industry standards,
an inmate shall only be placed in segregation for a jail
management rationale relating to a threat to life, property,
self, staff, community, other inmate, or to the security and
orderly operation of the institution.
2. Under generally accepted correctional industry standards,
the reason for placing or holding an inmate in segregation
should be supported by clear and substantiated evidence and
3. Under generally accepted correctional industry standards,
an inmate in segregation should receive a review of his
classification within a timely manner from the appropriate
authority and in regular intervals until the inmate is
released from segregation.
4. Based on my review of the record, Defendants have not
provided a sufficient jail management rationale for keeping
Mr. Session in segregation for the period between
approximately March 31 and December 18, 2013.
5. Based on my review of the record, Defendants did not
support their supposed rationale for keeping Mr. Session in
segregation with sufficient evidence or documentation, as
would be expected of them on a regular basis under industry
Docket No. 393-1. Defendants seek to exclude each of these
opinions on the grounds that (1) Mr. Teigen is not qualified
to opine on the standards and policies applicable to a
county-level detention center, like DDC; (2) Mr. Teigen's
reliance on Colorado Department of Corrections
(“CDOC”) and Bureau of Prisons
(“BOP”) policies and regulations renders his
opinions unreliable; and (3) Mr. Teigen's opinions
regarding the policies and ...