United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S RULE 702 MOTION TO EXCLUDE EXPERT
WILLIAM J. MARTINEZ JUDGE
civil rights action arises out of the shooting death of James
Strong, Jr., in his home during the execution of a no-knock
arrest warrant on May 28, 2015. Plaintiff Estate of James
Strong, Jr. (“Plaintiff”), has one remaining
claim under 42 U.S.C. § 1983 against Jason Schlenker
(“Defendant”) for use of excessive force in
violation of the Fourth Amendment. (ECF No. 33 ¶¶
before the Court is “Defendants' Motion to Exclude
Expert Testimony Pursuant to Fed.R.Evid. 702” (the
“Motion”). (ECF No. 119.) In the Motion, Defendant
seeks to limit Plaintiff from offering certain opinions at
trial from Plaintiff's designated expert, James George
Mosher. For the reasons explained below, Defendant's
Motion is granted in part and denied in part.
Court has previously set forth the factual background and
allegations in this case in some detail, including in its
Order Granting in Part and Denying in Part the Motion for
Summary Judgment. (See ECF No. 121.) Familiarity
with that factual background is presumed.
summary, Defendant was part of a SWAT team that executed a
no-knock warrant on Strong's home on May 28, 2015. (ECF
No. 88 at 6, ¶ 10.) Members of the SWAT team were
informed that firearms would likely be present and they
should be prepared for the occupants to be armed.
(Id. at 7, ¶ 10.) As the SWAT team entered the
house, officers detonated flash-bang devices outside the home
and, contrary to normal procedure, did not break any windows
prior to entering the residence. (Id. at 7, ¶
11.) The SWAT team members shouted “police, search
warrant” and “show me your hands.”
(Id. at 9, ¶ 19.) A loudspeaker outside the
home also identified those on the scene as the police.
(Id.; ECF No. 88-5 at 4, ¶ 14.)
and his partner, Lanhisha Richmond, were asleep in their
bedroom when the police entered the home. Richmond stated
that she did not hear the officers identify themselves as law
enforcement. (ECF No. 99-5 at 253.) As Officer Wilson nudged
open the door to Strong and Richmond's bedroom, Strong
immediately fired two shots at close range. He later fired a
third shot at Wilson. Wilson and Thornton Police Officer
Schlenker returned fire. When the shooting ceased, Wilson had
been hit several times. (ECF No. 88-5 at 6-7, ¶¶
24, 26; ECF No. 98-1 at 3.) Wilson ultimately fired 15 shots
and Schlenker fired 11. (ECF No. 99-3 at 175; ECF No. 99-2 at
173.) Strong had more than 20 bullet wounds, include six
gunshot wounds to the head and neck area, and did not survive
his injuries. (ECF No. 98-5 at 2.)
district court must act as a “gatekeeper” in
admitting or excluding expert testimony. Bitler v. A.O.
Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004).
Admission of expert testimony is governed by Rule 702, which
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. The proponent of the expert testimony
bears the burden of proving the foundational requirements of
Rule 702 by a preponderance of the evidence. United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.
an expert witness's testimony must assist the jury to be
deemed admissible, Fed.R.Evid. 702(a), it may not usurp the
jury's fact-finding function. See Specht v.
Jensen, 853 F.2d 805, 808 (10th Cir. 1988).
“Expert testimony which does nothing but vouch for the
credibility of another witness encroaches upon the jury's
vital and exclusive function to make credibility
determinations, and therefore does not assist the trier of
fact as required by Rule 702.” United States v.
Adams, 271 F.3d 1236, 1245 (10th Cir. 2001) (internal
quotation marks omitted). Moreover, “a proposed
expert's opinion that a witness is lying or telling the
truth might be inadmissible pursuant to Rule 702 because the
opinion exceeds the scope of the expert's specialized
knowledge and therefore merely informs the jury that it
should reach a particular conclusion.” Id.
(internal quotation marks omitted). United States v.
Leach, 749 F.2d 592, 600 (10th Cir. 1984) (resolving
conflicts in the evidence and reaching ultimate conclusions
of fact are both functions exclusively reserved to the trier
of fact). The line between what is helpful to the jury and
what intrudes on the jury's role as the finder of fact is
not always clear, but it is well-settled that “[a]n
opinion is not objectionable just because it embraces an
ultimate issue.” Fed.R.Evid. 704.
“the rejection of expert testimony is the exception
rather than the rule.” Fed.R.Evid. 702 advisory
committee's note. “[T]he trial court's role as
gatekeeper is not intended to serve as a replacement for the
adversary system. . . . Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.”
Id. (quoting Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 595 (1993)).
addition to analysis under Rule 702, an expert's proposed
testimony must be relevant and otherwise admissible. See
Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576,
588 n.7 (10th Cir. 2016). To be 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 ...