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Estate of Strong v. Schlenker

United States District Court, D. Colorado

July 19, 2019




         This 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 ¶¶ 61-72.)

         Currently before the Court is “Defendants' Motion to Exclude Expert Testimony Pursuant to Fed.R.Evid. 702” (the “Motion”). (ECF No. 119.)[1] 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.

         I. BACKGROUND

         The 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.

         In 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.)

         Strong 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.)


         A 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 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. 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. 2009).

         While 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.

         Ultimately, “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)).

         In 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 ...

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