United States District Court, W.D. Texas, Austin Division
SARA HOKE, et al.
ROBERT ANDERSON, et al.
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
the Court are Defendants' Motion to Exclude Testimony of
Dr. Trent Terrell (Dkt. No. 42) and Defendants' Motion to
Exclude Testimony of Sara Hoke (Dkt No. 45). The District
Court referred the above-motions to the undersigned
Magistrate Judge for resolution pursuant to 28 U.S.C. §
636(b)(1)(A), Fed.R.Civ.P. 72, and Rule 1(c) of Appendix C of
the Local Rules.
Plaintiffs, Sara and Amanda Hoke, bring this case against the
Defendants, who are officers of the Austin Police Department,
after an incident on March 18, 2016. The Plaintiffs were on
6th Street in Austin during the annual SXSW
festival when one of the Plaintiffs accidently bumped into
another woman. The woman, joined by four or five other women,
allegedly became irate and attacked Sara Hoke. Sara's
sister, Amanda, attempted to intervene and aid her sister.
The Plaintiffs allege that the Defendants, without any
warning, began deploying chemical spray onto the women,
including the Hokes, to break up the fight. The Hokes claim
to have heard no commands from the police officers as they
were being sprayed. The Hokes were sprayed over large
portions of their bodies and did not realize that the police
were present until the women who attacked them got up and
walked away. The Hokes state that they were in extreme pain
because of the burning sensation caused by the chemical agent
used by the Defendants. As the Hokes were blinded by the
chemical spray, they also did not see two men walk toward
them and take their purses. The Hokes allege that the
Defendants did not offer to help them despite being in pain,
and instead directed the Hokes down the street to a vehicle
that transported them to jail. Plaintiffs claim that the
Defendants were aware of the pain caused by the chemical
spray given their training, but did not provide them any
water to wash away the spray. The Hokes allege they were
released from jail the next day without their belongings and
were only able to wash the chemical spray away after
returning home. Based on these events, the Plaintiffs bring
§ 1983 claims alleging violations of their Fourth,
Eighth, and Fourteenth Amendment rights under the United
motions before the Court, Defendants ask to exclude expert
testimony of Dr. Trent Terrell, and Plaintiff Sara Hoke. The
Plaintiffs have not responded to either motion.
STANDARD OF REVIEW
Rule of Evidence 702 provides the standard for determining
the admissibility of expert testimony. Daubert v. Merrell
Dow Pharms., 509 U.S. 579, 597-98 (1993). It provides:
A witness who is qualified as an expert by knowledge,
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.
Rule 702 and Daubert, the trial court is to act as a
“gatekeeper” with regard to expert testimony, to
make sure that unreliable expert opinions are not presented
to the jury. Daubert, 509 U.S. at 592-93.
Daubert and its principles apply to both scientific
and non-scientific expert testimony. Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 147 (1999). “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. 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).
addition to being qualified, an expert's methodology for
developing the basis of his or her opinion must be reliable.
Daubert, 509 U.S. at 592-93; Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
“The expert's assurances that he [or she] has
utilized generally accepted scientific methodology is
insufficient.” Moore, 151 F.3d at 276. The
party proffering expert testimony has the burden of