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Harper v. The City of Dallas

United States District Court, N.D. Texas, Dallas Division

December 6, 2017

TONY S. HARPER, SANDRA HARPER, individually and for the benefit of all statutory beneficiaries of James Harper and as the Estate of James Harper, and KH, a minor by and through her mother and guardian Ashlee Whadley, Plaintiffs,



         Defendants City of Dallas, Texas and Brian Rowden have filed a Motion to Exclude Testimony of the Plaintiffs' Retained Expert Witness Jerry Staton, see Dkt. No. 83 (the “Motion to Exclude”), which Chief Judge Barbara M. G. Lynn has referred to the undersigned United States magistrate judge for a hearing, if necessary, and for determination under 28 U.S.C. § 636(b), see Dkt. No. 86.

         Plaintiffs Tony S. Harper, Sandra Harper, and KH filed a response, see Dkt. No. 96, and Defendants filed a reply, see Dkt. No. 101.

         For the reasons and to the extent explained below, the Court GRANTS in part and DENIES in part Defendants' Motion to Exclude Testimony of the Plaintiffs' Retained Expert Witness Jerry Staton [Dkt. No. 83].


         The pertinent factual background and procedural background is familiar to the parties and will not be recounted at length here.

         As Plaintiff explained in a previous motion, “[i]n this lawsuit, Plaintiffs claim that the City is liable for damages resulting from the use of excessive force, assault, unlawful arrest and detention of James Harper, who - although unarmed and unthreatening and having committed no unlawful acts - was savagely beaten, as the evidence shows and then shot in cold blood by Defendant Officer Brian Rowden.” Dkt. No. 79 at 1.

Defendants, for their part, describe the case as center[ing] around an encounter between James Harper (“Harper”) and former Dallas police officer Brian Rowden. On 24 July 2012, an anonymous 9-1-1 caller reported that an armed group of Latin males were leading an African-American male into a house on 5616 Bourquin Street, located in the Fair Park area of Dallas (“the House”). The kidnapping call was false and apparently arose out of an earlier altercation between the 9-1-1 caller and some members of a criminal street gang known as the 357 Dixon Crips, including James Harper, in which the 9-1-1 caller was assaulted. Three (3) uniformed Dallas Police Department (“DPD”) officers, including Officer Rowden, responded to the call by going to the House, which was being operated as a drug house.
The officers attempted to make contact with the occupants of the House by knocking on the door and identifying themselves as police officers. Officer Begin made eye contact with one of the occupants, who quickly slammed a door shut. Concerned for the safety of the reported kidnap victim, Officer Rowden pushed aside a window-mounted air conditioner to see what was going on inside. Officer Rowden saw a gun, several unfired shotgun shells, and what appeared to be marijuana and cocaine on a table. He could also smell phencyclidine (“PCP”). Officer Rowden also saw four African-American males inside the House, one of whom took the gun and ran to the back of the House. Officer Rowden yelled “Police!” and heard glass breaking toward the back of the House.
Several adult males fled from the House. One suspect, Arthur Dixon, was quickly apprehended. A second suspect, James Fullwood, was able to evade the officers. Officer Begin took custody of Dixon while Officer Rowden chased Harper over some fences and through residential yards. A prolonged physical struggle ensued when Officer Rowden caught up to Harper. Harper disobeyed Officer Rowden's repeated commands to show his hands, and appeared to be trying to retrieve a possible weapon from his pant pocket. Officer Rowden shot fatally Harper when he believed that Harper was about to produce a weapon and kill Officer Rowden.
The Plaintiffs contend that Officer Rowden shot Harper without any lawful justification; Officer Rowden asserts that he shot Harper in self-defense when Harper appeared to be reaching for a weapon concealed in Harper's pant pocket during the physical struggle.
The Plaintiffs sue the Defendants under 42 U.S.C. § 1983, and allege the deprivation of Harper's Fourth Amendment right to be free from the use of excessive force in the course of a seizure. The Plaintiffs assert that the City is liable under § 1983 because of supposed deficiencies in DPD officer training and supervision. The Plaintiffs plead for compensatory and punitive damages. The Defendants deny all liability, and Officer Rowden asserts his entitlement to qualified immunity.

Dkt. No. 83 at 7-9 (footnote omitted).

         More specifically, as to the Motion to Exclude, Defendants note that “Plaintiffs filed [Federal Rule of Civil Procedure] 26(a)(2) expert disclosures on 26 March 2017” and that Defendants then timely filed the Motion to Exclude. Id. at 7. They explain that “Plaintiffs have designated Staton as a retained expert witness on police procedures” and “have served Staton's written report containing his expert opinions and conclusions to be offered before the jury in this case (the ‘Report'), and the Defendants have taken Staton's oral deposition.” Id. at 9.

         But, according to Defendants, “the bulk of Staton's opinions and conclusions as stated in his Report and deposition testimony relate to matters that may not be presented by an expert witness, or to matters as to which Staton lacks adequate qualifications to present testimony, ” and so “Defendants ask the Court to enter an order excluding such testimony from the trial of this case.” Id.

         Legal Standards

         Federal Rule of Evidence 702 provides that 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.” Fed.R.Evid. 702. The trial court acts as a “gatekeeper” to exclude expert testimony that does not meet relevancy and reliability requirements. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993) (scientific testimony or evidence must be relevant and reliable). In this role, the Court determines the admissibility of expert testimony based on Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. “The court may admit proffered expert testimony only if the proponent, who bears the burden of proof, demonstrates that (1) the expert is qualified, (2) the evidence is relevant to the suit, and (3) the evidence is reliable.” E.E.O.C. v. S&B Industry, Inc., No. 3:15-cv-641-D, 2017 WL 345641, at *2 (N.D. Tex. Jan, 24, 2017) (internal quotation marks omitted; citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)).

         “Before a district court may allow a witness to testify as an expert, it must be assured that the proffered witness is qualified to testify by virtue of [her] ‘knowledge, skill, experience, training, or education.'” United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting Fed.R.Evid. 702). “A district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject.” Id. (citing Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)). “Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (citation omitted).

         To be relevant, “expert testimony [must] ‘assist the trier of fact to understand the evidence or to determine a fact in issue.'” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 245 (5th Cir. 2002) (quoting Daubert, 509 U.S. at 591). “Relevance depends upon ‘whether [the expert's] reasoning or methodology properly can be applied to the facts in issue.'” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quoting Daubert, 509 U.S. at 593); see also F ed. R. Evid. 702(d) (requiring that “expert has reliably applied the principles and methods to the facts of the case”).

         “Reliability is determined by assessing ‘whether the reasoning or methodology underlying the testimony is scientifically valid.'” Knight, 482 F.3d at 352 (quoting Daubert, 509 U.S. at 592-93); see also Fed. R. Evid. 702(c) (requiring that “testimony [be] the product of reliable principles and methods”). “The reliability prong mandates that expert opinion be grounded in the methods and procedures of science and ... be more than unsupported speculation or subjective belief.” Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (internal quotation marks omitted). But “there is no requirement that an expert derive his opinion from firsthand knowledge or observation.” Deshotel v. Wal-Mart La., L.L.C., 850 F.3d 742, 746 (5th Cir. 2017) (internal quotation marks omitted).

         “The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. “The proponent need not prove to the judge that the expert's testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable.” Johnson, 685 F.3d at 459 (internal quotation marks omitted). But, if “there is simply too great an analytical gap between the [basis for the expert opinion] and the opinion proffered, ” the Court may exclude the testimony as unreliable. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

         “[C]ourts consider the following non-exclusive list of factors when conducting the reliability inquiry: (1) whether the theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the method used and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or method has been generally accepted by the scientific community.” Johnson, 685 F.3d at 459 (internal quotation marks omitted). But these factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of [the] testimony.” Kumho, 526 U.S. at 150.

         The burden is on the proponent of the expert testimony to establish its admissibility by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10; see also Johnson, 685 F.3d at 459. The Court's inquiry is flexible in that “[t]he relevance and reliability of expert testimony turns upon its nature and the purpose for which its proponent offers it.” United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010) (citation omitted). “As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the [trier of fact's] consideration.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987). “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.” Daubert, 509 U.S. at 596.


         Defendants contend that, “[i]n his Report, Staton criticizes Officer Rowden's conduct based upon (1) irrelevant alleged deviations from ‘good police procedure, ' (2) irrelevant alleged misconduct that does not violate federal law, and (3) irrelevant alleged misconduct as to which no actionable claim is asserted. Staton further expresses opinions that are speculative, conclusory, or otherwise irrelevant, as well as opinions bearing directly upon the credibility of witnesses.” Dkt. No. 83 at 13. They argue that “all of those opinions that follow should be excluded from evidence under the Daubert/Kumho standards, as well as under several other evidentiary rules.” Id. at 9. Defendants assert that these specified “opinions are impermissibly speculative, impermissibly attempt to convey a legal standard, impermissibly opine on others' mental states, and/or will not be helpful to the jury because they are irrelevant to any fact in issue” and that “[t]he Court should preclude Staton from proffering those opinions before the jury, in accordance with Rule 702 of the Federal Rules of Evidence, and settled jurisprudence as to the allowable scope of opinions by police procedures experts.” Id. at 30.

Plaintiffs respond that

Defendants do not question Staton's qualifications. Nor can they. Staton's own report - which Defendants included in their appendix - demonstrates his extensive experience in the field. By way of background, Staton is a retired police officer having obtained the rank of Detective with the Austin Police Department. Staton started his police career in February, 1975 and retired in August, 2000. The majority of Staton's service was spent in the tactical arena, including eight years on a full-time SWAT team. The last three years Staton was assigned as an instructor in the Police Academy, teaching use of force skills to cadets and veteran officers. Since retiring Staton has continued teaching in the police use of force field on a regular basis, currently accumulating eighteen years of teaching experience and over forty years of law enforcement related experience. Thus, Staton's background supports that he is experienced in the fields of, among other things, probable cause, reasonable suspicion, use of force, police practices and analysis. Instead, Defendants question the relevance and reliability of his testimony. In the process, the Defendants take a rather narrow view of the law and Staton's opinions to make both arguments. A more accurate analysis, however, reveals that Staton's opinions are both relevant and reliable.

Dkt. No. 96 at 3-4.

         In reply, Defendants contend that “Plaintiffs concede that their expert, Staton, may not offer opinions on legal standards, proffer legal conclusions, opine on witness credibility, or speculate on subjective mental states or personal motivations”; that “the Court should grant the Defendants' objections to Staton's opinions as requested in sections IV-B-3, -6, -7, -9, and -10 of their Motion”; that “all that is in issue are Staton's opinions that are the subject of Motion sections IV-B-1, -2, -4, -5, and -8”; and that “[t]he Court should grant the Defendants' remaining objections because the subject-matter of Staton's remaining testimony is irrelevant to either the objective reasonableness of Officer Rowden's uses of force or the existence of a City policy that could result in § 1983 liability based upon Officer Rowden's uses of force.” Dkt. No. 101 at 1-2.

         The Court will address in turn each of the 10 sets of opinions that Defendants' Motion to Exclude challenges, in the order that Defendants presented them.

         I. The three officers improperly handled the initial investigation of the 9-1-1 call.

         Defendants seeks to exclude Staton's opinion in section V, paragraphs 1 through 8 of his Report that “the three responding officers should have handled events preceding Officer Rowden's confrontation with Harper differently.” Dkt. No. 83 at 15. Defendants explain that, although “Staton's Report is rife with purely speculative opinions as to what might have occurred if the officers had handled the 9-1-1 call differently preceding Officer Rowden's one-on-one encounter with Harper, or if different decisions had been made, ” “no expert, no matter how good his credentials, is permitted to speculate as to what might have happened under other factual scenarios.” Id. at 13.

         In their response, Plaintiffs contend that “[a] thorough review of Staton's report plainly reveals that in paragraphs V-1 through V-8, he offers numerous opinions regarding forensic investigation, police procedure, and training. None of his opinions involve an evaluation of witness credibility. None of his statements involve speculation as to what ‘might have happened' if proper procedures were followed. None of his statements purport to offer opinions on legal standards or legal conclusions. Accordingly, ...

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