United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S RULE 702 MOTION
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.
Michael Valdez (“Valdez”) was shot in the back by
Denver police officer Robert Motyka, Jr.
(“Motyka”), at the end of a car chase in which
occupants of the car Motyka was pursuing fired at Motyka and
struck him in the shoulder. Valdez claims that Motyka’s
gunshot constituted excessive force in violation of the
before the Court is Valdez’s Motion to Exclude Opinion
Testimony. (ECF No. 113.) For the reasons explained below,
the Court grants this motion in part as to Defendants’
medical expert, Dr. Downs, and grants it in full as to
Defendants’ crime scene reconstruction expert, Mr.
Court draws the following facts from the summary judgment
record, which clearly shows where the parties agree and
disagree regarding the relevant facts. (See ECF Nos.
82, 92, 104.)
January 16, 2013, Denver police received reports of a
domestic violence incident and two shooting incidents, all
involving a red Dodge pickup truck. The truck was spotted
later in the day and a police chase ensued through the
streets of north Denver. Valdez was a passenger in the truck.
the police pursuers, Motyka, was fired on from the truck. He
says he saw two people from the truck firing at him, one of
whom he is certain was Valdez. One of the bullets struck
Motyka in the left shoulder, causing him to pull over and
assess his injury momentarily, but he eventually joined other
officers who had continued the chase.
chase ended at Columbus Park when the truck collided with a
tree on the edge of the park. The chasing officers, including
Motyka, took up positions behind their cruisers, or the doors
of their cruisers, some fifty to sixty feet behind the truck,
with guns drawn.
of the truck began exiting. One of them fled into the park.
Valdez says that he and a female occupant both exited the
passenger side of the truck (the driver’s side was
smashed) and laid on the grass there in a prone position,
with Valdez placing his hands on or above his head. Valdez
says that, in this position, Motyka and another officer, John
Macdonald, opened fire on him, with Motyka in particular
motivated by revenge. Motyka says that Valdez did not lay on
the ground, but got out of the truck and then began reaching
back into the truck, which Motyka perceived as an action to
retrieve the gun with which Valdez had been shooting at him.
Motyka therefore opened fire, and Macdonald, who arrived
seconds later, opened fire because Motyka opened fire.
bullet, later established through ballistic evidence to have
been fired by Motyka, struck Valdez in the lumbar region,
shattering a portion of his spine and temporarily paralyzing
him. Another bullet tore off his left ring finger. No.
evidence could confirm who fired that bullet.
lawsuit was presided over by Senior U.S. District Judge
Richard P. Matsch until his passing in May 2019. In April
2019, Judge Matsch ruled that Macdonald was entitled to
summary judgment, but that there were material disputes of
fact preventing summary judgment as to Motyka and Denver.
(ECF No. 124.) Defendants appealed the denial of qualified
immunity as to Motyka. (ECF No. 128.) By order filed earlier
today, the Court certified that appeal as frivolous pursuant
to Stewart v. Donges, 915 F.2d 572 (10th Cir. 1990).
(ECF No. 147.) Accordingly, the Court has jurisdiction to
move forward with this lawsuit.
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
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) (en banc).
expert’s proposed testimony also must be shown to 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 a factual dispute.”
United States v. Garcia, 635 F.3d 472, 476 (10th
Cir. 2011) (alteration in original).
J.C. Upshaw Downs is a medical doctor and forensic
pathologist with extensive experience in areas such as
identifying remains, determining cause of death, and
evaluating certain kinds of causes of death. (See
ECF No. 121-7.) Defendants have retained him mostly to
provide a report about the angle at which Motyka’s shot
struck Valdez in the back, therefore providing information
about Valdez’s body position at the time of the shot.
(See ECF No. 121-9.)
first asserts that “Dr. Downs possesses no expertise in
firearms, bullet trajectory, ballistics, or crime scene
reconstruction.” (ECF No. 113 at 21.) Valdez therefore
attacks Dr. Downs’s ...