United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Lindsay, United States District Judge
the court is Defendants' Motion for Summary Judgment
(Doc. 15), filed January 19, 2016. After considering the
motion, response, reply, appendixes, record, and applicable
law, and for the reasons that follow, the court
grants in part and denies in
part Defendants' Motion for Summary Judgment
Factual and Procedural Background
a civil rights action arising out of an encounter between
Plaintiff Terry Graham, Jr. (“Plaintiff” or
“Graham”) and two Dallas Area Rapid Transit
(“DART”) officers, Defendants Fernando Ibarra,
Jr. (“Ibarra”) and Jeanne Jones
(“Jones”) (sometimes collectively, the
“Officers”). On the afternoon of May 11, 2013,
Graham left a shopping mall and boarded a DART bus in
downtown Dallas, Texas. Graham had not consumed any alcohol
that day. While on the bus, he witnessed a man in a gray
shirt strike a woman at a bus stop and then run away from the
bus toward a McDonald's restaurant near the federal
building in downtown Dallas.
approximately 4:30 p.m. that same afternoon, Ibarra and Jones
responded to a DART police dispatch regarding the assault
Graham had witnessed. The dispatch reported that a black male
had hit a female with an unknown object and thereafter may
have boarded a DART bus. The dispatch described the suspect
as wearing a gray shirt and blue jeans, although a later
dispatch stated that the suspect may have changed his shirt.
As Ibarra and Jones boarded the bus, they walked toward the
back where Graham, wearing blue jeans and a light-colored
shirt, was sitting. As the Officers approached Graham, Ibarra
unholstered his department approved firearm and kept it at
his side. He asked Graham for identification. In response,
Graham stated: “I am not the guy you are looking
for.” Pl.'s Summ. J. App. 71. Graham did not use
any profanities in response to Ibarra's questions.
Id. Other passengers on the bus also informed
the Officers that Graham was not the individual who had
committed the assault. Id.
states that at this point in the encounter he noticed that
Graham smelled like alcohol and observed that he had
bloodshot eyes and slurred speech. Defs.' Summ. J. App.
26. Ibarra directed Graham to place his hands behind his
back, and Jones handcuffed him. Id. at 18, 26.
Ibarra removed Graham from the bus for further questioning.
Officer Ibarra then advised Graham he was not a suspect in
the assault but was “being arrested for public
intoxication due to him being an obvious danger to himself
and others.” Id. at 19. Ibarra and Jones then
escorted a handcuffed Graham toward a DART patrol car.
respect to the ensuing events, the parties have provided the
court with a videotape that appears to have been taken by a
dash-mounted camera on another patrol car. See Id.
at 33; Pl.'s Summ. J. App. 70. Each party represents to the
court that the videotape supports his or her version of the
facts. “When opposing parties tell two different
stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Scott v.
Harris, 550 U.S. 372, 380 (2007). In Scott v.
Harris, the Supreme Court reversed an Eleventh Circuit
decision to uphold a denial of summary judgment where a
videotape captured the events in dispute and the deposition
testimony contradicted the videotape. “Respondent's
version of events is so utterly discredited by the record
that no reasonable jury could have believed him. The Court of
Appeals should not have relied on such visible fiction; it
should have viewed the facts in the light depicted by the
court has viewed the videotape numerous times. Unlike the
videotape in Scott v. Harris, unless the parties
have an enhanced version of the videotape or specialized
equipment for viewing the videotape that the court does not
have, the court is unable to substantiate either party's
version of the events that unfolded as the Officers led
Graham toward the patrol car, except as herein described. The
videotape is grainy, unclear, and an extremely bright glare
on the lens obscures what transpires between the Officers and
Graham. The audio portion is garbled and incomprehensible.
The videotape, however, shows that Jones did not participate
in the use of force as Graham was about to be put into the
patrol car and during the ensuing struggle between him and
Ibarra. The videotape clearly shows Jones standing by as
Ibarra used force. Other than Jones's lack of
participation, as the disputed events are too obfuscated to
provide support for either the Officers' or Graham's
version of the events, the videotape is of little utility to
the court. Accordingly, the court will consider it only in
assessing the lack of Jones's use of force during the
struggle between Ibarra and Graham that occurred near the
back door of the patrol car. Further, and as set out more
fully below in its discussion of the parties' evidence,
to the extent Defendants' retained and nonretained
experts rely on their viewing of the videotape to support
their opinions, the court will not consider this testimony,
as it is inherently unreliable.
to Defendants' version of the ensuing events, as Ibarra
escorted Graham toward the back seat of the patrol car,
Graham stepped onto the door sill and pushed back with force,
causing him and Ibarra to lose balance and fall onto the
concrete sidewalk. Graham kept kicking while on the sidewalk,
striking Jones with his legs and injuring her, and biting
Ibarra on the hand. Ibarra, believing Graham to be a danger
to himself and others, deployed his Oleoresin Capsicum Spray
(“OC Spray”). See Defs.' Summ. J.
Br. 2. In support of their version, the Officers rely on
their statements and incident reports, their deposition
testimony, the report of Officer Roy Wilt with the Office of
Professional Standards (“OPS”), the Affidavit of
DART's Chief of Police James D. Spiller, the report of
Defendants' retained expert, Albert Ortiz, and
Graham's own deposition testimony admitting to repeatedly
kicking his legs while he was on the sidewalk. Defs.'
Summ. J. App. 3-17, 19, 21-22, 27-32, 34-36, 69-70, 124-25,
to Graham's version, once near the patrol car, the
Officers, without justification, slammed him to the ground,
and severely beat, struck and injured him, even though he did
not resist, hit, strike, attempt to flee, bite, or in any way
pose a threat to the Officers. While Graham concedes he was
kicking his legs after he was on the ground, he contends that
Ibarra had his knee on Graham's neck, and provides
evidence that his kicking “stem[s] from [him] flailing
his legs as Ibarra choked the life out of him.”
Pl.'s Summ. J. Resp. Br. 9. In support of his version,
Graham relies on the emergency room records from Parkland
Hospital showing extensive facial injuries (Pl.'s Summ.
J. App. 1-65), his own affidavit submitted in support of his
response to the motion for summary judgment (id. at
71), as well as his deposition testimony where he states that
Ibarra had his knee on his neck and he was kicking his legs
because Ibarra “was choking the hell out of
[him].” Id. at 75-76. In support of his
contention that he never bit Ibarra, Graham points out that
the incident report completed by Ibarra at 4:32 p.m. on May
11, 2013, shortly after the incident, does not list Ibarra as
a victim or contain any reference to him being injured during
the encounter with Graham. Id. at 68-69.
Emergency Medical Services (“EMS”) was called to
treat Graham for injuries at the scene, including for the
effects of the OC Spray. Graham was then transported to the
Dallas County Jail, but his injuries were severe enough that
it would not accept him. Graham was then transported to
Parkland Hospital for medical treatment of his injuries. The
emergency room records show that in addition to burning eyes
caused by the OC Spray, Graham suffered a two-centimeter
laceration under his left eye, swelling of the left cheek, a
left medial nasal fracture, bruising all over his face, and a
small laceration to his inner lower lip. Id. at 7,
10. The emergency room records make no mention of alcohol,
the smell of alcohol, or Graham's alleged intoxication.
Once discharged the following day, May 12, 2014, Graham was
transported back to the Dallas County Jail where he was
booked for assault of a public servant under cause number
F13-16626. Defs.' Summ. J. App. 31-32.
20, 2013, Graham filed a complaint with the DART Police
Department's OPS against Ibarra for using excessive force
during his arrest. Roy Wilt, who was assigned to the OPS,
conducted an Internal Affairs investigation and found that
DART Police policy violations were not committed and
concluded that “Officer Ibarra used only the amount of
force necessary.” Id. at 8.
November 1, 2013, a Dallas County Grand Jury indicted Graham
for assault of a public servant in cause number F13-16626.
Ultimately, cause number F13-16626 was dismissed by the
Dallas County District Attorney's Office. The Officers
did not testify before the grand jury on the felony charge
December 16, 2014, Graham brought this lawsuit against DART,
Ibarra, and Jones, pursuant to 42 U.S.C. § 1983 for
alleged violations of his First, Fourth, and Fifth Amendment
rights. Specifically, he brings claims against the
Officers under the Fourth Amendment for “false arrest
and/or false imprisonment, ” unlawful detention or
seizure, and malicious prosecution. Compl. ¶¶ 24,
29-31. Graham also contends the Officers violated his Fourth
Amendment rights by using clearly excessive force after he
was already handcuffed and under arrest, causing him bodily
injury, and by failing to intervene to protect him from harm.
Id. ¶¶ 21-23. Although not entirely clear,
in addition to the Fourth Amendment, Graham appears to be
alleging that the Officers violated his First Amendment right
to free speech in connection with their alleged use of
excessive force, “in light of such force being in
response to First Amendment speech alone[.]”
Id. ¶ 21(a). Further, Graham sues Defendant
DART pursuant to section 1983, alleging it has a custom,
policy, or practice of allowing its officers to engage in
excessive force and make arrests without probable cause, and
that it failed to adequately train its officers in the use of
force. Id. ¶¶ 26-27. In addition to his
federal claims under section 1983, Graham brings state law
tort claims against Ibarra and Jones for intentional
infliction of emotional distress (“IIED”), false
arrest and false imprisonment, and assault and battery.
Id. ¶¶ 32-39. Graham seeks compensatory
damages against Defendants, jointly and severally, punitive
damages against the Officers, as well as attorney's fees,
prejudgment and postjudgment interest, and costs.
judgment shall be granted when the record shows that there is
no genuine dispute as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute
regarding a material fact is “genuine” if the
evidence is such that a reasonable jury could return a
verdict in favor of the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
ruling on a motion for summary judgment, the court is
required to view all facts and inferences in the light most
favorable to the nonmoving party and resolve all disputed
facts in favor of the nonmoving party. Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine dispute of
material fact. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 586 (1986). On the other hand,
“if the movant bears the burden of proof on an issue,
either because he is the plaintiff or as a defendant he is
asserting an affirmative defense, he must establish beyond
peradventure all of the essential elements of the
claim or defense to warrant judgment in his favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986) (emphasis in original). “[When] the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no ‘genuine
[dispute] for trial.'” Matsushita, 475
U.S. at 587. (citation omitted). Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th
Cir. 1996). Unsubstantiated assertions, improbable
inferences, and unsupported speculation are not competent
summary judgment evidence. See Forsyth v. Barr, 19
F.3d 1527, 1533 (5th Cir. 1994).
party opposing summary judgment is required to identify
specific evidence in the record and to articulate the precise
manner in which that evidence supports his or her claim.
Ragas, 136 F.3d at 458. Rule 56 does not impose a
duty on the court to “sift through the record in search
of evidence” to support the nonmovant's opposition
to the motion for summary judgment. Id.; see
also Skotak v. Tenneco Resins, Inc., 953 F.2d 909,
915-16 & n.7 (5th Cir. 1992). “Only disputes over
facts that might affect the outcome of the suit under the
governing laws will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 248. Disputed
fact issues that are “irrelevant and unnecessary”
will not be considered by a court in ruling on a summary
judgment motion. Id. If the nonmoving party fails to
make a showing sufficient to establish the existence of an
element essential to its case and on which it will bear the
burden of proof at trial, summary judgment must be granted.
Celotex, 477 U.S. at 322-23.
Section 1983 Claims Against DART
governmental entity can be sued and subjected to monetary
damages and injunctive relief under 42 U.S.C. § 1983
only if its official policy or custom causes a person to be
deprived of a federally protected right. Board of the
Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397,
403 (1997); Monell v. New York City Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978). A governmental entity
cannot be liable for civil rights violations under a
theory of respondeat superior or vicarious liability.
Id.; see also Baskin v. Parker, 602 F.2d
1205, 1208 (5th Cir. 1979). DART has been recognized as a
municipal entity subject to suit under 42 U.S.C. § 1983.
See Craig v. Dallas Area Rapid Transit, 504 F.
App'x 328, 334 (5th Cir. 2012); see also Williams v.
Dallas Area Rapid Transit, 242 F.3d 315, 319-20 (5th
Cir. 2001) (holding that DART is a municipal entity rather
than an arm of the state).
purposes of section 1983, official policy is defined as:
1. A policy statement, ordinance, regulation, or decision
that is officially adopted and promulgated by [DART's]
lawmaking officers or by an official to whom the lawmakers
have delegated policy-making authority; or
2. A persistent, widespread practice of [DART] officials or
employees which, although not authorized by officially
adopted and promulgated policy, is so common and well-settled
as to constitute a custom that fairly represents [DART]
policy. Actual or constructive knowledge of such custom must
be attributable to the governing body of [DART] or to an
official to whom that body had delegated policy-making
Webster v. City of Houston, 735 F.2d 838, 841 (5th
Cir. 1984) (en banc); Bennett v. City of
Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en
banc). A plaintiff must identify the policy, connect the
policy to the governmental entity itself, and show that his
injury was incurred because of the application of that
specific policy. Bennett v. City of Slidell, 728
F.2d 762, 767 (5th Cir. 1984). A plaintiff must establish
that the governmental entity through its deliberate conduct
was the “moving force behind the injury alleged”
and must establish a direct causal link between the
governmental entity's action and the deprivation of a
federally protected right. Bryan County v. Brown,
520 U.S. at 404.
must rest on official policy, meaning the governmental
entity's policy, and not the policy of an individual
official. Bennett, 728 F.2d at 769. The official
complained of must possess
[f]inal authority to establish [DART] policy with respect to
the action ordered. . . . The official must also be
responsible for establishing final government policy
respecting such activity before [DART] can be held liable. .
. . [W]hether an official had final policymaking authority is
a question of state law.
Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82
(1986). An employee, agency, or board of a governmental
entity is not a policymaker unless the governmental entity,
through its lawmakers, has delegated exclusive policymaking
authority to that employee, agency, or board and
cannot review the action or decision of the
employee, agency or board. See City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988); Worsham v.
City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir.
policy or custom relied upon to establish liability may
include the inaction of official policymakers but only when
such inaction constitutes “deliberate
indifference” to the rights of the plaintiff, and such
indifference is a “closely related” cause of the
plaintiff's injuries. City of Canton v. Harris,
489 U.S. 378, 388, 391 (1989). The failure or inaction
regarding the discipline, supervision, or training of
municipal employees “must amount to an intentional
choice, not merely an unintentionally negligent
oversight.” Rhyne v. Henderson Cty., 973 F.2d
386, 392 (5th Cir. 1992) (citing City of Canton, 489
U.S. at 390).
type and quantum of proof a plaintiff must offer to establish
deliberate indifference vary, however, with the type of
inaction alleged and with the identity of the wrongdoer. When
the wrongdoer is a policymaking official, a single act will
suffice, if deliberate indifference and causation are
established. See, e.g., Pembaur, 475 U.S.
at 481 (“[W]here action is directed by those who
establish governmental policy, the municipality is equally
responsible whether that action is to be taken only once or
to be taken repeatedly.”). When the challenge relates
to a custom of behavior among nonpolicymaking employees,
which may be contrary to official policy, the plaintiff
cannot rely on a single instance of unconstitutional conduct,
but must demonstrate “at least a pattern of similar
incidents in which the citizens were injured . . . to
establish the official policy requisite to municipal
liability under section 1983.” Snyder v.
Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998) (internal
quotations and citations omitted). Isolated violations are
not persistent, often repeated constant violations that
constitute custom or policy. Bennett, 728 F.2d at
768 n.3. In such “custom” cases, “where the
violations are flagrant or severe, the fact finder will
likely require a shorter pattern of the conduct to be
satisfied that diligent governing body members would
necessarily have learned of the objectionable practice and
acceded to its continuation.” Id. at 768.
contends that DART is liable under section 1983 because it
had a policy or custom that led to the alleged violations of
his constitutional rights. He alleges DART “sanctioned
the custom, practice and/or policy or procedure of illegal
seizures, excessive force and/or violating [the] right to
be free of unwanton [sic] seizure.” Pl.'s Compl.
§ 26. According to Plaintiff's pleadings,
“Ibarra and Jones's actions were a customary
practice and/or policy or procedure that was sanctioned by
DART” and such actions deprived him of his civil
rights. Graham further alleges that, although assaults,
beatings, and injury to citizens by DART police officers were
not a policy or custom that was officially adopted by DART,
the practice was so common and well-settled that it
constitutes an official policy or custom, and DART had
constructive knowledge of the “unspoken policy.”
Id. Graham also contends that DART is liable under
section 1983 for its failure to adequately train its police
support of its motion for summary judgment, DART argues that
it has adequate policies and procedures that ensure fair and
humane treatment of all persons in its custody, as shown by
the DART Police Department's Code of Conduct, which
All officers shall protect the rights of any person held in
custody and no officer shall verbally abuse or use
unnecessary force or violence against any such person.
No officer shall willfully mistreat or give inhumane
treatment to any person held in custody.
Officers shall use only the reasonable amount of force
necessary in effecting an arrest and maintaining custody of
Summ. J. App. 45-46. DART contends that Graham has failed to
come forward with any evidence or identify: “an
official DART policy or custom”; a DART policymaker
with final DART policymaking authority; or that the alleged
official policy or custom of DART was the moving force of the
alleged constitutional violations; or a pattern or practice
of DART of constitutional violations sufficient to establish
a persistent widespread practice of DART “that is so
common and well settled as to constitute a custom that fairly
represents governmental policy.” Defs.' Summ. J.
Br. 7. In addition, DART contends there is no evidence that
it sanctioned or ratified any policy or custom about which
Graham complains. Finally, DART contends that the evidence
establishes that Ibarra and Jones meet the legal minimum
training requirements for police officers in Texas, including
successfully completing the Basic Peace Officer training
requirements of the Texas Commission on Law Enforcement
(“TCOLE”), and that Graham has failed to show
that their training was inadequate. Id. at 20
(“Graham has presented no evidence DART's training
requirements for police officers fail to meet minimum state
standards or that the training from the N. Central Texas
Regional Police Academy was somehow deficient or inadequate
and there is no genuine [dispute] of material fact on this
court recognizes that this litigation is at the summary
judgment stage; however, before the court considers the
summary judgment evidence, a plaintiff must have sufficiently
pleaded a claim against a party. Plaintiff's Complaint
fails to allege sufficiently that a policy of custom of DART
was a moving force behind his alleged injury, much less
produce competent summary judgment evidence to establish that
he was injured as a result of an unconstitutional policy of
DART. To defeat “a motion to dismiss, a complaint's
‘description of a policy or custom and its relationship
to the underlying constitutional violation . . . cannot be
conclusory; it must contain specific facts.'”
Balle v. Nueces Cty., Tex., 690 F. App'x 847,
852 (5th Cir. 2017) (quoting Spiller v. City of Tex.
City, Police Dep't, 130 F.3d 162, 167 (5th Cir.
1997)). In other words, the pleadings are adequate with
respect to a section 1983 claim against a municipality when
they set forth “specific factual allegations that allow
a court to reasonably infer that a policy or practice exists
and that the alleged policy of practice was the moving
force” for the constitutional violation asserted.
Id. (citation omitted). Graham has not even met this
low pleading threshold, as his pleadings are entirely
conclusory, which alone constitutes a basis for dismissal of
his claims against DART.
event, in his response, Graham fails to address his section
1983 claim against DART, much less respond to any of
DART's arguments in support of its motion for summary
judgment. Although Graham's failure to respond to
DART's arguments in support of summary judgment does not
permit the court to enter a “default” summary
judgment on his section 1983 claims against DART, the court
is permitted to accept DART's evidence as undisputed.
Bookman v. Subzda, 945 F.Supp. 999, 1002 (N.D. Tex.
1996) (Fitzwater, J.). Further, “a summary judgment
nonmovant who does not respond to the motion is relegated to
[his] unsworn pleadings, which do not constitute summary
judgment evidence.” Id. (citing Solo Serve
Corp. v. Westowne Associates, 929 F.2d 160, 165 (5th
Cir. 1991)); see also Larry v. White, 929 F.2d 206,
211 n.12 (5th Cir. 1991) (“Unsworn pleadings,
memoranda, or the like are not, of course, competent summary
judgment evidence.”). As Graham's Complaint is not
verified, the court may not consider it in determining
whether he has raised a genuine dispute of material fact.
considered the summary judgment evidence provided by DART,
and pursuant to Federal Rule of Civil Procedure 56(e),
DART's motion for summary judgment must be granted
because Graham has failed to provide even a scintilla of
evidence to support his claims against DART. By not
responding to DART's arguments and submitting any
evidence in support of his section 1983 claims against DART,
Graham has failed to raise a genuine dispute of material fact
as to DART's contentions and undisputed evidence
supporting its motion for summary judgment, and DART is
entitled to judgment as a matter of law. Accordingly, the
court will grant DART's motion for summary judgment and
enter judgment in DART's favor regarding Graham's
section 1983 claims against it.
the court concludes that Graham has abandoned or waived his
section 1983 claims against DART. When a party fails to
pursue a claim or defense beyond the party's initial
complaint, the claim is deemed abandoned or waived. Black
v. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir.
2006) (plaintiff abandoned claim when she failed to defend
claim in response to motion to dismiss); Keenan v.
Tejeda, 290 F.3d 252, 262 (5th Cir. 2002) (noting that
“an issue raised in the complaint but ignored at
summary judgment may be deemed waived”) (citation
omitted). As Graham failed to pursue his section 1983 claims
against DART, they are no longer before the court, and he has
abandoned or waived them. Accordingly, in addition to the
reasons set forth previously, Graham's abandonment or
waiver constitutes an alternative ground for granting summary
judgment in DART's favor.
Claims Under Section 1983 Against Ibarra and Jones
alleges Ibarra and Jones violated his right to be free from
unreasonable seizure under the Fourth Amendment by: (i)
unlawfully detaining him; (ii) arresting him without probable
cause; (iii) using excessive and unreasonable force during
his arrest; and (iv) maliciously prosecuting him for assault
on a police officer.
Officers contend they are entitled to summary judgment based
on qualified immunity with respect to these
claims. In support, the Officers rely on the
evidence submitted in the appendix to their motion, which
includes the Affidavit of Albert Ortiz (“Ortiz
Affidavit”), their retained expert, as well as his
“Expert Opinion Report” (“expert
report”), and the Affidavit of James Spiller
(“Spiller Affidavit”), a nonretained expert.
702 of the Federal Rules of Evidence provides guidance on the
admissibility of expert testimony:
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Supreme Court has held that Rule 702 requires the district
court to act as a “gatekeeper” to ensure that
“any and all scientific evidence admitted is not only
relevant, but reliable.” Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
(1993). Further, the Court clarified that the
Daubert gatekeeping function applies to all forms of
expert testimony, not just scientific. Kuhmo
Tire Company v. Carmichael 526 U.S. 137, 141 (1998).
The district court fulfills its role as gatekeeper by
screening the proposed evidence and evaluating it in light of
the specific circumstances of the case to ensure that it is
reliable and sufficiently relevant to assist the jury in
resolving the factual disputes. Daubert, 509 U.S. at
592-93. The Fifth Circuit on more than one
occasion has reminded district courts of their important
gatekeeping functions. See Carlson v. Bioremedi
Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir.
2016); In re Air Crash Disaster at New Orleans,
La., 795 F.2d 1230, 1233 (5th Cir. 1986) (“Our
point is that the ultimate issue in such cases can too easily
become whatever an expert witness says it is, and trial
courts must be wary lest the expert become nothing more than
an advocate of policy before the jury. Stated more directly,
the trial judge ought to insist that a proffered expert bring
to the jury more than the lawyers can offer in
of its obligation as a gatekeeper, prior to analyzing the
parties' arguments on summary judgment, the court first
addresses whether Ortiz's and Spillers's respective
opinions meet the requirements for expert testimony under
Rule 702, Daubert, and Kuhmo Tire.