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Nosewicz v. Janosko

United States District Court, D. Colorado

March 31, 2019

EDWARD JOHN NOSEWICZ, Plaintiff,
v.
JEFFREY JANOSKO, Defendant.

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         On December 5, 2014, plaintiff Edward John Nosewicz was arrested by Thornton police officers. Docket No. 39 at 2, ¶ 1.[1] 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.

         At 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. 1.

         II. LEGAL STANDARD

         The 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”).

         Rule 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 field.” Id.

         Although 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).

         Assuming 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).

         III. ANALYSIS

         Plaintiff 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] ...


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