Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01873-REB-OES

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1873-REB-OES LEONARD A. TRUJILLO, Plaintiff(s), v. GARY M. HISE, GERALD WHITMAN, Chief of Police of the City and County of Denver, Colorado; and the CITY AND COUNTY OF DENVER, COLORADO, Defendant(s). DEFENDANTS' REPLY TO "RESPONSE TO DEFENDANTS' MOTION FOR A HEARING TO EXCLUDE TESTIMONY OF PLAINTIFF'S EXPERT WITNESSES" The Defendants, City and County of Denver ("Denver"), Officer Gary Hise ("Officer Hise"), and Chief Gerald Whitman ("Chief Whitman"), by and through their respective undersigned counsel, hereby submit the following reply to Plaintiff's "Response to Defendants' Motion for a Hearing to Exclude Testimony of Plaintiff's Expert Witnesses" and state as follows: The Plaintiff's Response Brief Failed to Raise a Meritorious Issue for a Daubert Hearing. 1. The Plaintiff's response brief simply reasserted unsupported conclusions

and opinions and failed to identify specific, expert testimony that will assist the jury in this case. In reality, the Plaintiff's response did not raise any issues that require a

hearing in this case. See, e.g., Cook v. Sheriff of Monroe County, 402 F.3d 1092, 1113

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(11th Cir. 2005) (court is not required to hold a Daubert hearing and its decision to refuse a hearing is reviewed under an abuse of discretion standard). A court is not required to hold a Daubert inquiry when the opposing party has failed to offer conflicting evidence that is supported by "the source, substance, or methodology of the challenged testimony." See, e.g., U.S. v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2004). The party offering expert testimony should at least make a prima facie showing that a hearing is needed to decide whether the proffered expert testimony is reliable. The Plaintiff's response brief falls short of a prima facie showing. The Plaintiff Implicitly Agrees that Mr. Smith Cannot and Has Not Offered a Sufficiently Reliable Expert Opinion. 2. In discussing each of Mr. Smith's opinion, the Plaintiff essentially admits

that Mr. Smith did not have an opinion, or could not render a reliable opinion or simply offered an opinion that does not require expert testimony in this case. 3. For example, with respect to the first opinion discussed by the Plaintiff, he

admits that Mr. Smith did "not determine the specific rate of speed of Officer Hise's police cruiser" as it entered the driveway. The Plaintiff admitted that this task was "impossible." See Plaintiff's responsive brief, p. 7 (Point A). Amazingly, the Plaintiff rebuts the lack of a scientifically predictable "rate of speed" by calling it "irrelevant." The Plaintiff attempts to argue that the "throw distance" is more relevant because it allegedly "demonstrates where Trujillo was likely run over." Id. The Plaintiff fails to appreciate that his own expert testified (in the transcript cited by Plaintiff) that the point of impact and impact speed are essential to determine the "throw distance". See Smith's

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deposition, Plaintiff's Exhibit 3, p. 33, ll. 20-25 through p. 34, l. 1 (essentially testifying that the rate of speed can be determined by considering the point of impact and throw distance, or that throw distance can be determined from the rate of speed and point of impact). Mr. Smith could not make a reliable opinion as to the point of impact, the rate of speed or the throw distance. 4. The Plaintiff addresses the missing calculations of "acceleration rate" in

the same manner as the issue of "rate of speed." The Plaintiff admits that Mr. Smith could not provide the acceleration rate. Then the Plaintiff minimizes the significance of this missing calculation by saying that it is "not material." See Plaintiff's response brief, p. 7 (Point B). 5. The Plaintiff provides even less argument for Mr. Smith's opinion that the

Plaintiff should have been visible to Officer Hise when Officer Hise was backing up. Again, there is no reliable evidence that the Plaintiff was actually still in the driveway when Officer Hise was backing up. As stated above, Mr. Smith does not know where the point of impact occurred between Officer Hise's car and the Plaintiff. Mr. Smith did not know how far Officer Hise had to travel down the driveway, nor did he run any tests to see what Officer Hise could see as he backed down the driveway. See Plaintiff's Exhibit 3, p. 261-262. Smith's opinion is simply a bald, inadmissible assertion. 6. The remaining opinions of Mr. Smith, discussed in the Plaintiff's response,

simply do not provide meaningful technical assistance for a jury. It is undisputed that the Plaintiff was run over by the Officer Hise' vehicle; therefore, no expert is needed to opine that the car ran him over. To opine that Officer Hise should have backed up with

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care, merely begs the question (i.e., whether he did so). Mr. Smith's opinion, that Officer Hise should have known he impacted something when the Plaintiff was run over, is not based on any scientific information but merely on what the common person should know or not know when a car runs over something. In the end, no hearing is needed to see that Mr. Smith's opinions are not admissible. Plaintiff Has Not Properly Designated Mr. Smith as an Expert in "Police Investigation" and "Police Pursuits". 7. The Plaintiff's late designation of Mr. Smith as an expert in police

investigations of automobile accidents and police pursuits was not included in Smith's written opinion and should not be permitted. See Defendants' opening brief, Exhibit 1 (Smith's written opinion). The Plaintiff provided no notice of such designation. Mr. Smith has insufficient qualifications to testify as to such issues. Police investigations of automobile accidents are not relevant to this action. The Plaintiff Failed to Provide a Sufficient Basis for the Admissibility of Mr. Willard's testimony. 8. The Defendants argued in their Motion to Exclude the Plaintiff's Expert

Witnesses, an expert must do more than posit subjective beliefs or unsupported speculation for the opinions to qualify as reliable. See U.S. v. Kelley, 6 F. Supp. 2d 1168, 1185 (D. Kan. 1998) citing U.S. v. Posado, 57 F.3d 428, 433 (5th Cir. 1995) ("Evidentiary reliability, or trustworthiness, is demonstrated by the knowledge offered is more than speculative belief or unsupported speculation"). The Plaintiff's response

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brief, coupled with his lack of qualifications in the record, do little to prove that Mr. Willard's opinions are reliable. 9. The Plaintiff's response brief left in tact Mr. Willard's deposition admission

that he could not identify any specific law enforcement policies he authored as a police executive. The Plaintiff also left unchanged the fact that Mr. Willard could not testify specifically as to any constitutional standard or state law that Officer Hise violated in his case. Id. at pp. ll. 10. The Plaintiff implicitly admitted that none of Mr. Willard's opinions have

been tested, subjected to peer review or publication, or shown to be in conformance within the law enforcement community. The Plaintiff erroneously argues that Mr. Willard's knowledge and employment as a police administrator alone meets the reliability standard required in Kumho Tire. 11. The Plaintiff cites three cases to support his position that experience alone

correlates to reliability. See Bitler v. A.O. Smith Corporation, 391 F.3d 1114 (10th Cir. 2004); Storts v. Hardee's Food Systems, 2000 U.S. App. LEXIS 6307 (10th Cir. 2000); and U.S. v. Conn, 297 F.3d 548 (7th Cir. 2002).1 However, as demonstrated below, these cases actually highlight the problem with Mr. Willard's qualifications. 12. The experts in the cases cited by the Plaintiff acted markedly different than his own expert. In Bitner, the experts in those cases observed the physical evidence,
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This Court should disregard the Plaintiff's citation to the Storts decision and Call v. State Industries, 2000 U.S. App.LEXIS 17732 (10th Cir. 2000) as these decisions carry no binding precedence and are generally disfavored as authority in this jurisdiction. Presuming that this Court will consider these opinions, the Defendants will address the merits of these decisions. 5

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visited the accident scene, and posited a test that by a preponderance of the evidence proved causation. See Bitler v. A.O.Smith Corporation, 391 F.3d 1114 at 1122-1123. In addition to their extensive experience in law enforcement, the experts in Storts had personal knowledge of the accident scene and an "extensive background" of security in the restaurant industry. Finally, the experts presented evidence that their theory was "widely accepted in the security field." See Storts v. Hardee's Food Systems, 2000 U.S. App. LEXIS 6307 at **36-37.2 13. The experts in these cases did more than just rely on their experience in

this field. They put forth the effort required to become an expert witness such as visiting the accident scene, reviewing relevant standards, policies, and procedures, and comparing the actions of their subjects with the relevant and accepted standards in the field. The Plaintiff appears to suggest that Mr. Willard's thirty-four year career in law enforcement alone qualifies him as an expert witness. It is reasonable to surmise that if the number of years were dispositive in proving reliability, the Courts on this issue would have avoided articulating the five prong standard stated in Daubert, Kumho, and its progeny and just issued a ruling stating the minimum number of years that an individual would have to serve in his career in order to qualify as an expert. Instead, the courts have crafted a standard of reliability that requires the individual to put forth the effort of examining evidence, reviewing policies, and testing theories as opposed to just resting on their laurels of continued employment. See also United States v. Allerheiligen, 2000 The Conn decision is of limited use as the expert's training and experience were never questioned by the defense attorneys and the court qualified the witness as an expert based solely on an apparently unchallenged offer of proof by the government. See U.S. v. Conn, 297 F.3d 548 at 556-557. 6
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U.S. App. LEXIS 18529 (10th Cir. 2000) (Appellate court affirmed a trial court's decision to exclude the testimony of a law enforcement officer with twenty-five (25) years experience because "his credentials evidence no training, experience or schooling in matters related to marijuana identification, eradication, processing, and use..") 14. Aside from reading the reports in this case, Mr. Willard reviewed Officer

Hise's videotape statement. Further, Mr. Willard relies heavily on the conclusions made by Mr. John Smith's accident reconstruction report, which also has been challenged by the Defendants as unreliable. See Plaintiff's Response Motion, p. 11. Mr. Willard admittedly did not review the Denver Police Department's policies and procedures on pursuits. The Plaintiff failed to show that Mr. Willard evaluated Officer Hise's actions against any standards articulated by any recognizable authority in the law enforcement field. This lack of adequate evaluation is highlighted by the fact that Mr. Willard could cite no relevant law or policy that Officer Hise violated in his interaction with the Plaintiff. See Willard Depo, pp. ll. Mr. Willard's Opinions Are Inadmissible as They Will Not Assist the Jury in Determining the Evidence in this Case. 15. Aside from his repeated claims that his opinions are unique and based on

his specialized knowledge as a former law enforcement officer, Mr. Willard does little to distinguish his opinion from those that can be held by anyone who drives an automobile. Mr. Willard's opinions about which shoulder to look over when driving a car in reverse and his opinion that Officer Hise was reckless in reversing his patrol vehicle are general

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opinions about everyday experiences in driving a vehicle that the jury can determine without the need of an expert witness. 16. The Plaintiff fails to address the Defendants' position that Mr. Willard's

testimony should be excluded as it will not help the trier of fact, or jury, determine the evidence at issue in this case. Because Mr. Willard's opinions resemble those that can be formed every day by a common motorist and because his opinions lack the indicia of reliability that is required by both rule and case law, these opinions should be inadmissible. WHEREFORE, the Defendants' respectfully request that the court strike the testimony of the Plaintiff's experts or, in the alternative, hold a hearing to the extent necessary to rule on the Defendants' motion. Respectfully submitted this 14th day of October, 2005. LUIS A. CORCHADO Assistant City Attorney CHRISTOPHER M.A. LUJAN Assistant City Attorney

By: s/ Luis A. Corchado Luis A. Corchado Christopher M.A. Lujan Assistant City Attorneys Denver City Attorney's Office Litigation Section 201 West Colfax Ave., Dept. No. 1108 Denver, CO 80202-5332 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 [email protected] Attorneys for Defendants 8

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CERTIFICATE OF SERVICE I hereby certify that on this 14th day of October, 2005, I electronically filed the foregoing DEFENDANTS' REPLY TO "RESPONSE TO DEFENDANTS' MOTION FOR A HEARING TO EXCLUDE TESTIMONY OF PLAINTIFF'S EXPERT WITNESSES" with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:
· · ·

David J. Bruno [email protected] [email protected] Jeffrey John Clayton [email protected] [email protected] Lonn M. Heymann [email protected] [email protected]

and I hereby certify that I have mailed the document to the following non CM/ECF participants via Interoffice Mail: Alvin J. LaCabe, Jr. Manager of Safety 1331 Cherokee Street Denver, Colorado 80204 s/ Marilyn Barela Marilyn Barela, Legal Secretary Denver City Attorney's Office
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