United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant's 702 Motion
Challenging Dan Montgomery [Docket No. 71]. This case is set
for a five-day jury trial beginning on October 7, 2019.
Docket No. 96. Plaintiff Edward John Nosewicz alleges that,
while he was in custody at the Adams County Detention
Facility on December 6, 2014, defendant Jeffrey Janosko, a
deputy sheriff with the Adams County Sheriff's
Department, used excessive force against him in violation of
the Fourth Amendment. Docket No. 59 at 2-3.
December 5, 2014, plaintiff Edward John Nosewicz was arrested
by Thornton police officers. Docket No. 39 at 2, ¶
After his arrest, plaintiff was taken to the Adams County
Detention Facility. Docket No. 45 at 3, ¶ 2. Two members
of the jail's medical staff saw plaintiff during the
intake process. Docket No. 39 at 2, ¶ 6. That evening,
plaintiff complained in an irate manner that he needed to see
the medical staff again. Docket No. 45 at 4, ¶ 8.
Defendant, who was assigned to the jail, contacted the
medical unit, and plaintiff was taken to the medical unit for
evaluation. Id., ¶¶ 9, 12.
approximately 4:10 a.m. on December 6, 2014, plaintiff, while
in a cell, began yelling at the top of his lungs. Docket No.
39 at 3-4, ¶ 14; Docket No. 45 at 5, ¶ 14.
Defendant went to plaintiff's cell and asked the tower
deputy to open plaintiff's cell door so that plaintiff
and defendant could better communicate. Id.
Defendant stood in front of the open door and spoke with
plaintiff. Docket No. 39 at 4, ¶ 16. Defendant offered
to call the medical staff to ask if they would see plaintiff
and told plaintiff that he could file a kite if they would
not see him. Id.; see also Docket No. 45 at
5, ¶ 16. Plaintiff became progressively angrier and
began yelling at defendant. Docket No. 39 at 4, ¶ 17.
Because of plaintiff's irate behavior and because
plaintiff would not obey defendant's commands, defendant
decided that he needed to escort plaintiff to a safer
location. Docket No. 45 at 5, ¶ 17; Docket No. 39 at 4,
¶ 18. Defendant entered plaintiff's cell and a
physical altercation ensued. Docket No. 39 at 4, ¶ 20;
Docket No. 45 at 5, ¶ 19. The parties dispute the
particulars of the altercation, but they agree that defendant
forced plaintiff to the cell floor and that plaintiff's
left elbow was lacerated. Docket No. 45 at 5, ¶¶
19, 20. Plaintiff subsequently filed this lawsuit. Docket No.
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, 470
F.3d at 990. 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 same
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
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 Dan Montgomery as an expert on “modern
police practice regarding use of force.” Docket No. 73
at 1. This Court's practice standards require a motion
objecting to the admissibility of opinion testimony of an
expert witness to “identify with specificity each
opinion the moving party seeks to
exclude” and to “identify the specific ground(s)
on which each opinion is challenged.” See
Practice Standards (Civil cases), Chief Judge Philip A.
Brimmer, III.G. Much of defendant's motion, however,
fails to provide the necessary “specificity” as
to which opinions he is challenging and on what grounds.
See, e.g., Docket No. 71 at 2 (indicating that
defendant “moves to strike all of Mr.
Montgomery's opinions”). As the court explained in
Crabbe, “the Rule 702 determination [is] ...