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Beebe v. State

United States District Court, D. Colorado

November 15, 2019

SCOTT A. BEEBE, Plaintiff,


          Christine M. Arguello United States District Judge

         This matter is before the Court on Plaintiff Scott A. Beebe's Objection to the United States Magistrate Order on Plaintiff's Motion to Strike Defendants' Rebuttal Expert Witness. (Doc. # 66), Plaintiff's Motion to Exclude from Admission at Trial All Evidence and Testimony of Defendants' Witness Jason A. Page (Doc. # 83), Defendants' Motion to Exclude Expert Testimony of Dr. D'Orazio pursuant to Federal Rule of Evidence 702 (Doc. # 84), and Plaintiff's Rule 37 Motion to Strike Witnesses for Violations of Rule 26 (Doc. # 82). These Motions have been fully briefed.[1] The Court considers each Motion in turn.

         I. BACKGROUND

         Magistrate Judge Tafoya's Recommendation (Doc. # 62) and this Court's Order adopting the Recommendation (Doc. # 87) provided a thorough recitation of the factual and procedural background in this case. The Recommendation and this Court's previous Order are both incorporated herein by reference and the facts will be repeated only to the extent necessary to address the instant Motions.

         Plaintiff was convicted and sentenced to probation for a Colorado sex offense on April 13, 2002. Probation was revoked on November 30, 2007, and Plaintiff was resentenced to a minimum mandatory two years to life indeterminate sentence to the Colorado Department of Corrections (“CDOC”), which was modified on May 13, 2009, to reflect the opportunity for discretionary rather than mandatory parole. Plaintiff is currently an inmate at the Centennial Correctional Facility (“CCF”) within the CDOC. (Doc. # 35 at ¶¶ 5, 10-11.)

         At all times throughout his incarceration, Plaintiff alleges that he has had “mental impairments of Axis I: 300.02 Generalized Anxiety Disorder, with Panic Disorder; Axis I: 2000.4 Persistent Depressive Disorder, which includes Major Depressive Disorder, and Axis II: 301.4 Obsessive/Compulsive Personality Disorder (OCD).” (Id. at ¶ 8.) Plaintiff further alleges that such mental impairments “substantially limit [his] concentration, thinking, communicating, and brain function.” (Id. at ¶ 9.) Moreover, Plaintiff alleges that these mental impairments cause him to experience “excessive anxiety and worry, restlessness, and difficulty concentrating, accompanied by overstimulation of his nervous system, accelerated heart rate, shortness or irregularity of breath, muscle tension and dizziness, all of which are exacerbated by the prospect of and actual taking of a polygraph.” (Doc. # 35 at ¶ 22.)

         Plaintiff has been and currently is admitted to and participating in the Sex Offender Treatment and Monitoring Program (“SOTMP”). (Id. at ¶¶ 4, 12.) To qualify for permission to receive parole, Plaintiff must earn a “Successful Progress” status by meeting seven treatment criteria, the second of which is central to this case. (Id. at ¶¶ 15-17.) The second criterion requires “verification of sexual history ‘through either the . . . polygraph . . . or other clinical indicators” (“Second Criterion”). (Id. at ¶ 17 (quoting Colo. Sex Offender Mgmt. Bd., Standards and Guidelines for the Assessment, Evaluation, Treatment and Behavioral Monitoring of Adult Sex Offenders 304, LS 4.210(A) (April 2018)) (emphasis in original).) The SOMB Standards provide that “other clinical indicators” may include “scores on dynamic risk assessments” and “behavioral observations.” (Id. at ¶ 19 (internal citations omitted).)

         Plaintiff alleges that he routinely fails the polygraph component of the Second Criterion as a result of his alleged disabilities. (Id. at ¶¶ 18, 22-23.) As such, Plaintiff requested an Americans with Disabilities Act (“ADA”) accommodation from Defendants, seeking a waiver of the polygraph test and the ability to use “other clinical indicators” so that he can meet the Second Criterion. (Id. at ¶¶ 24-38); (Doc. # 62 at 2). Defendants denied Plaintiff's request. (Doc. # 35 at ¶¶ 25, 32-34.)

         On June 1, 2018, Plaintiff filed suit against Defendants (Doc. # 1), and on September 24, 2018, Plaintiff filed his Amended Complaint (Doc. # 35), wherein he asserted a single claim for Violation of Title II of the ADA based on two theories. First, Plaintiff argues that Defendants discriminated against him based on his disabilities when they denied his request for an accommodation to waive the polygraph examination and use “other clinical indicators.” Second, Plaintiff contends that, as a result of Defendants' failure to accommodate him, he was denied meaningful access to SOTMP services and rehabilitation benefits because his participation in polygraph examinations causes harm to him. (Doc. # 35 at ¶¶ 65-69.) Defendants respond that Plaintiff's disabilities do not affect the accuracy of his polygraph examinations, and as such, an accommodation is unnecessary. (Doc. # 67 at 15.) Defendants alternatively assert that Plaintiff is not otherwise qualified for parole eligibility. (Doc. # 67 at 18-19.)

         In support of these theories, Plaintiff and Defendants intend to call several witnesses, some of whom will provide expert testimony. At issue in the instant motions are Plaintiff's proffered expert witness Dr. Deidre D'Orazio and Defendants' proffered expert witness James Page and fact witness Christina Ortiz-Marquez, along with a legion of other witnesses who were allegedly belatedly disclosed. These witness disclosures spurred both parties to file several motions now before the Court.


         On February 22, 2019, Plaintiff moved the Court to exclude Defendants' retained rebuttal expert Jason A. Page because Mr. Page's rebuttal report exceeded the scope of Plaintiff's proffered expert testimony and purportedly sought to introduce “a different theory” and “methodology” than that from Plaintiff's expert witnesses. (Doc. # 44 at ¶¶ 7, 11-13.) As such, Plaintiff contends that, under the Tenth Circuit's 103 Investors I, L.P. v. Square D Company decision, Mr. Page's rebuttal testimony is improper and should have previously been disclosed as an affirmative report. (Id. at ¶¶ 8-10 (citing 103 Investors I, L.P. v. Square D Company, 372 F.3d 1213 (10th Cir. 2006)).) After briefing was completed (Doc. ## 60, 61), on April 9, 2019, Magistrate Judge Tafoya held a hearing on Plaintiff's Motion. (Doc. # 63.)

         At the conclusion of the hearing, Magistrate Judge Tafoya denied Plaintiff's Motion and concluded that Mr. Page was timely disclosed as a rebuttal expert and that his rebuttal opinion did not “introduce a different methodology into the case.” (Id. at 1.) During the hearing, the Magistrate Judge rejected Plaintiff's argument that Defendants sought to admit polygraph examination evidence through Mr. Page's proffered rebuttal report. (Doc. # 65 at 6-12, 17, 24, 31-32.) Moreover, Magistrate Judge Tafoya determined that Mr. Page's rebuttal report did not utilize a different methodology to rebut Plaintiff's proffered testimony because the opinion itself-that Plaintiff's conditions do not affect the accuracy of the polygraph examination results-directly rebuts Plaintiff's expert opinion-that Plaintiff's alleged disabilities prevent him from successfully completing an accurate polygraph examination. (Id. at 24-31.)

         On April 23, 2019, Plaintiff filed his Objection to the Magistrate Judge's Order denying his motion to strike Mr. Page's testimony. (Doc. # 66.) Plaintiff avers that Magistrate Judge Tafoya's decision was “clearly erroneous and contrary to law” because Defendants have sought to introduce a new theory with Mr. Page's rebuttal report, which flies in the face of the Tenth Circuit's Square D decision. (Id. at ¶¶ 11-14.) Specifically, Plaintiff argues that, because Mr. Page's expertise is in polygraphy, his opinion “would be bringing in a new theory and expertise to rebut the psychological and physiological based opinions of Plaintiff's experts.” (Id. at ¶ 4.) For the following reasons, the Court disagrees with Plaintiff that Magistrate Judge Tafoya's decision was contrary to law.


         Under Federal Rule of Civil Procedure 72(a), the “district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Therefore, the Court applies the clearly erroneous standard to Magistrate Judge Tafoya's Order (Doc. # 63).

         B. ANALYSIS

         Federal Rule of Civil Procedure 26(a)(2)(D) provides that rebuttal expert evidence must be offered “solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C).” Fed.R.Civ.P. 26(a)(2)(D)(ii). Proper rebuttal expert testimony is limited to rebutting or contradicting the same subject matter identified by another party as opposed to providing support only for the proffering party's case in chief. Anderson v. Seven Falls Co., Case No. 12-cv-01490-RM-CBS, 2013 WL 3771300, at *9 (D. Colo. July 18, 2013) (collecting cases). Properly disclosed rebuttal expert testimony excludes the introduction of any new theory. Square D, 372 F.3d at 1218.

         Given that Plaintiff's objection rests on the Square D decision, explanation thereof is instructive. Square D concerned a district court's exclusion of a rebuttal expert report partially because the report projected a “totally new theory of negligence[.]” 372 F.3d at 1217. The causation of a building fire and, specifically, whether the manufacturing of the building's busways rather than an external leak into the busways caused the fire, were at issue in Square D. Id. at 1214, 1216-18. The affirmative expert reports provided that the “contamination on the bus duct which led to the fire had entered the bus ducts from an outside source[.]” Id. at 1217. The rebuttal expert report indicated that “contamination from a foreign liquid material” was “not a reasonable possibility” and that the cause of the fire must be attributed to the manufacturing process. Id. at 1218. The Tenth Circuit disagreed with the district court that the rebuttal report espoused “a new theory.” Id. The court held that, because the affirmative reports discussed “the internal defects and contamination on the inner bus ducts, ” regardless of the additional detail underlying the rebuttal report, the rebuttal opinion itself “merely label[ed] the cause more specifically as a manufacturing defect[, ]” and as such, did not comprise a “new theory in violation of Rule 26.” Id.

         The Court agrees with Magistrate Judge Tafoya and Defendants that Mr. Page's rebuttal report directly rebuts part of the same subject matter opined by Doctors Kleinasser and Dr. D'Orazio. The gist of Plaintiff's affirmative expert reports provide that Plaintiff's alleged disabilities and related symptoms affect the accuracy and reliability of his polygraph examinations, including Plaintiff's ability to uninhibitedly participate in the polygraph examination. (Doc. # 60-1 at 13 (Dr. Kleinasser's Report); Doc. # 60-2 at 1 (Dr. D'Orazio's Report)). Mr. Page's introductory statement provides that his rebuttal report seeks to discuss the “veracity of the claims”[2] that Plaintiff's alleged disabilities “would negatively affect his polygraph examinations and their outcomes.” (Doc. # 60-3 at 1.) Indeed, Mr. Page specifically explains how Plaintiff's disabilities and related symptoms affect Plaintiff's polygraph examinations.[3] (Id. at 3-5.) Such opinions directly rebut or pertain to the same subject matter of Plaintiff's proffered experts-even if the experience underlying Mr. Page's rebuttal opinion varies from that of Doctors Kleinasser and D'Orazio. Contrary to what Plaintiff might have gleaned from the Square D decision, the Tenth Circuit did not discuss the methodologies used by both experts in determining whether the rebuttal report addressed the same subject matter of which the affirmative experts opined. Therefore, the Court concludes that Magistrate Judge Tafoya's order was not contrary to law and was consistent with the Tenth Circuit's Square D decision.

         Accordingly, the Court AFFIRMS the Magistrate Judge's decision to DENY Plaintiff's Motion to Strike Defendants' Rebuttal Expert Witness (Doc. # 66).

         III. RULE 702 MOTIONS (DOC. ## 83, 84)

         The Court next considers Plaintiff's Motion to Exclude from Admission at Trial All Evidence and Testimony of Defendants' Witness Jason A. Page (Doc. # 83) and Defendants' Motion to Exclude Expert Testimony of Dr. D'Orazio pursuant to Federal Rule of Evidence 702 (Doc. # 84).


         1. Framework for Admitting Expert Testimony

         Under Daubert, the trial court acts as a “gatekeeper” by reviewing a proffered expert opinion for relevance pursuant to Federal Rule of Evidence 401, and reliability pursuant to Federal Rule of Evidence 702. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-95 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999); see also Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). The proponent of the expert must demonstrate by a preponderance of the evidence that the expert's testimony and opinion are admissible. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); United States v. Crabbe, F.Supp.2d 1217, 1220-21 (D. Colo. 2008); F.R.E. 702 advisory comm. notes. This Court has discretion to evaluate whether an expert is helpful, qualified, and reliable under Rule 702. See Goebel, 214 F.3d at 1087; United States v. Velarde, 214 F.3d 1204, 1208-09 (10th Cir. 2000).

         Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule 702 provides that a witness who is qualified as an expert by “knowledge, skill, experience, training, or education” may testify 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.

         In deciding whether expert testimony is admissible, the Court must make multiple determinations. First, it must first determine whether the expert is qualified “by knowledge, skill, experience, training, or education” to render an opinion. Nacchio, 555 F.3d at 1241. Second, if the expert is sufficiently qualified, the Court must determine whether the proposed testimony is sufficiently “relevant to the task at hand, ” such that it “logically advances a material aspect of the case.” Norris v. Baxter Healthcare Corp., 397 F.3d 878, 884, 884 n.2 (10th Cir. 2005). “Doubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility unless there are strong factors such as time or surprise favoring exclusions.” Robinson v. Mo. Pac. R.R. Co., 16 F.3d 1083, 1090 (10th Cir. 1994) (quotation omitted). Third, the Court examines whether the expert's opinion “has ‘a reliable basis in the knowledge and experience of his [or ...

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