United States District Court, D. New Mexico
JACKIE MARTINEZ, as Personal Representative on behalf of the Estate of Russell Martinez, Plaintiff,
JOSEPH SALAZAR, in his individual capacity, GREG ESPARZA, in his individual capacity, THE ESPANOLA DEPARTMENT OF PUBLIC SAFETY, LEO MONTOYA, and THE CITY OF ESPANOLA, Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon motions in limine filed by
both parties. On September 16, 2015, Plaintiff filed
plaintiff's Motion in Limine to Exclude the Expert
Testimony of Raymond J. Rael and Memorandum in Support
(“plaintiff's Motion in Limine”). (Doc. 103).
Defendants filed a response on October 7, 2015, and Plaintiff
filed a reply on October 26, 2015. (Docs. 108 & 116). On
October 13, 2015, Defendants filed Defendants' First
Motion in Limine to Exclude the Opinion Testimony of
plaintiff's Expert Roger A. Clark (“Defendants'
First Motion in Limine”) and Defendants' Second
Motion in Limine to Exclude the Opinion Testimony of
plaintiff's Expert Roger A. Clark (“Defendants'
Second Motion in Limine”). (Docs. 110 & 111).
Plaintiff filed a consolidated response to both motions, and
Defendants filed replies. (Docs. 119, 128, & 129). Having
reviewed the motions, the accompanying briefs, relevant law,
and otherwise being fully advised, the Court GRANTS
plaintiff's Motion in Limine, GRANTS IN PART and DENIES
IN PART Defendants' First Motion in Limine, and GRANTS IN
PART and DENIES IN PART Defendants' Second Motion in
a police excessive force case arising from interactions
between Russell Martinez (“Mr. Martinez”) and
Defendants Joseph Salazar and Greg Esparza. Mr. Martinez
originally filed this case on May 5, 2014, in the First
Judicial District Court, County of Rio Arriba, New Mexico.
(Doc. 1-1). Defendants removed the case to this Court on June
6, 2014. (Doc. 1). Subsequently, Mr. Martinez filed his First
Amended Complaint for Damages Resulting from Civil Rights
Violations, Intentional Torts, Negligence, and Violations of
Title II of the Americans with Disabilities Act
(“Amended Complaint”). (Doc. 88).
Amended Complaint, Plaintiff alleges that Mr. Martinez is
paraplegic, has had his lower left leg amputated, and has no
feeling in his lower body. Id. at 3:10. On May 11,
2012, Mr. Martinez and his wife, Mrs. Jackie Martinez, had an
argument in their car in a parking lot. Id. at
3:11-12. During the argument, bystanders called the police,
and Espanola Police Department Officer Joseph Salazar
(“Defendant Salazar”) arrived at the scene.
Id. at 3:12-13. Mrs. Martinez spoke to Defendant
Salazar and told him that Mr. Martinez was paraplegic,
immobile, and unable to drive. Id. at 3:14. Mr.
Martinez remained in the car. Id. at 3:13. While
investigating the incident, Defendant Salazar approached the
car and asked Mr. Martinez to exit the vehicle. Id.
at 3:16. Mr. Martinez responded that he is immobile.
Id. Defendant Salazar then pulled Mr. Martinez from
his car, beat him, and drive stunned him with a Taser,
despite the fact that he could not move his lower body.
Id. at 4:17-18. During theis encounter, Officer Greg
Esparza (“Defendant Esparza”) arrived on the
scene and shot Mr. Martinez in the chest with a Taser.
Id. at 4:21. As a result, Mr. Martinez suffered
excruciating pain and injuries, and was transported to
Espanola Hospital. Id. at 4:22-23.
on these allegations, the Amended Complaint alleges four
counts. In Count I, Plaintiff brings 42 U.S.C. § 1983
excessive force claims against Defendants Salazar and
Esparza. (Doc. 88) at 5. In Count II, Plaintiff brings New
Mexico Tort Claims Act (“NMTCA”) claims against
Salazar and Esparza for the intentional torts of assault,
battery, false arrest, and violation of the United States and
New Mexico constitutions. Id. at 5-6. In addition,
the Amended Complaint alleges respondeat superior
claims against the Espanola Department of Public Safety
(“EDPS”) and the City of Espanola for the
intentional torts allegedly committed by Salazar and Esparza.
Id. In Count III, Plaintiff brings state negligence
claims against Joe Montoya, the Director of the EDPS, for
negligently hiring, training, and/or supervising Salazar and
Esparza, and thereby causing Salazar and Esparza to commit
the intentional torts listed in Count II. Id. at
6-7. The Amended Complaint also alleges that EDPS and the
City of Espanola are liable for Montoya's negligent
actions under respondeat superior. Id. at
7. Finally, in Count IV, Plaintiff asserts claims under Title
II of the Americans with Disabilities Act (“ADA”)
against the EDPS and the City of Espanola for failing to
reasonably accommodate Mr. Martinez's disability in the
course of questioning, interacting with, and detaining him.
Id. The parties largely dispute the facts of this
party has retained experts to evaluate Defendants Salazar and
Esparza's use of force and alleged ADA violations.
See (Docs. 103-1 & 110-1). Both Plaintiff and
Defendants now move to exclude the opposing party's
expert testimony pursuant to Federal Rules of Evidence 403
and 702, on the grounds that the testimony is not reliable or
helpful for various reasons, and may be prejudicial to the
parties or confusing to the jury.
Standard of Review
Federal Rule of Evidence 702, “[a] district court may
allow expert testimony ‘[i]f [the expert's]
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue.'” United States v.
Adams, 271 F.3d 1236, 1245 (10th Cir. 2001) (citing
Fed.R.Evid. 702); see United States v. Hill, 749
F.3d 1250, 1258 (10th Cir. 2014) (“The touchstone of
admissibility under rule 702 is the helpfulness of the
evidence to the trier of fact.”) (citing United
States v. Rangel-Arreola, 991 F.2d 1519, 1524 (10th Cir.
1993)). The Court must act as a gatekeeper under Rule 702 to
ensure the reliability and relevance of all proffered expert
testimony. Kumho Tire Co. Ltd. v. Carmichael, 526
U.S. 137, 147 (1999) (citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)).
Indeed, “[t]he [United States] Supreme Court has held
that Rule 702 imposes a special obligation upon a trial judge
to ensure that all expert testimony, even non-scientific and
experience-based expert testimony, is both relevant and
reliable.” Adams, 271 F.3d at 1245 (internal
addition, any “proffered expert testimony must also
pass muster under Federal Rule of Evidence 403.”
Schinagel et al. v. City of Albuquerque, et al., No.
Civ. 07-481 LH/RLP, at *4 (D.N.M. Mar. 25, 2009)
(unpublished). Rule 403 provides that “evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.” Fed.R.Evid. 403.
parties ask this Court to exclude the opposing party's
expert testimony on several grounds. The Court will address
each expert report and the relevant objections in turn.
plaintiff's Motion in Limine to Exclude the Report and
Testimony of Defendants' Expert Raymond J. Rael
retained Raymond J. Rael to conduct an evaluation of the
propriety of the use of force by Defendants Salazar and
Esparza during the encounter with Mr. Martinez. (Doc. 103-1)
at 1. Mr. Rael's report indicates that he seeks to
testify that Defendants Salazar and Esparza did not use
excessive force while interacting with Mr. Martinez, and that
the officers did not necessarily violate the ADA.
Id. at 10-12. In the Motion in Limine, Plaintiff
moves to exclude Mr. Rael's testimony completely, on the
grounds that Mr. Rael's conclusions are improperly
predicated on his credibility determination that
Defendants' account of what happened is more likely to
have occurred. Defendants respond that Mr. Rael's report
properly renders opinions on the ultimate issues in this case
and makes no credibility determinations.
Tenth Circuit] ha[s] said that ‘[t]he credibility of
witnesses is generally not an appropriate subject for expert
testimony.'” Adams, 271 F.3d at 1245
(citing United States v. Toledo, 985 F.2d 1462, 1470
(10th Cir. 1993)). This is because “[s]uch testimony:
(1) usurps a critical function of the jury; (2) is not
helpful to the jury, which can make its own determination of
credibility; and (3) when provided by impressively qualified
experts on the credibility of other witnesses is prejudicial
and unduly influences the jury.” Hill, 749
F.3d at 1258 (internal citations and quotations omitted).
review of Mr. Rael's report, it is evident that he has
formulated his analysis and conclusions by making credibility
determinations of the witnesses. Indeed, Mr. Rael explicitly
states that, “[i]n light of conflicting reports and the
lack of independent witnesses, the evaluation of this case is
by necessity conducted based on the most likely and
reasonable scenario.” (Doc. 103-1) at 9. He then goes
on to opine that Defendant “Salazar's version of
events appears more logical, and suggests that he acted
reasonably in arresting Martinez after being punched, and
justified in using reasonable force, up to and including
intermediate weapons such as a baton or Taser, to prevent Mr.
Martinez from accessing his firearm and forcing compliance
for restraint and custody.” Id. at 10. Mr.
Rael continues to base his conclusions on Mr. Martinez's
purported aggressive and violent resistance, his attempts to
acquire Defendant Salazar's firearm, and the fact that
Defendant Salazar may not have known that Mr. Martinez was
disabled. Id. at 11, 12.
the facts surrounding the physical interaction between Mr.
Martinez and defendants are highly disputed. For instance,
Plaintiff disputes whether Mr. Martinez or Defendant Salazar
was the initial aggressor in their interaction, and whether
Mrs. Martinez explicitly told Defendant Salazar that Mr.
Martinez was paraplegic and could not move from the waist
down. As a result, while Mr. Rael utilizes his experience and
methodology to come to his conclusions, he bases those
conclusions on his assumption that the facts are as
Defendants suggest, and not as Plaintiff alleges.
Mr. Rael's report and testimony relies completely on this
credibility determination, the Court finds that the testimony
would not be helpful to the jury, and should be excluded.
See Schinagel, No Civ. 07-481 LH/RLP, at *5-6
(holding that expert testimony which relied on
defendant's version of facts, and discounted
plaintiff's, merely vouched for credibility of witness
and encroached on jury's exclusive function and does not
assist trier of fact). The Court notes that, to the extent
Mr. Rael's conclusions did not rely on his credibility
determination, those opinions could have been admitted. But
it is clear, based on the Court's review of his report,
that Mr. Rael's entire analysis and corresponding
opinions rely are based on his credibility determinations,
and this Court is limited to considering his report and
proposed testimony. Id.; See Fed. R. Civ.
P. 26(a)(2)(B). For these reasons, plaintiff's Motion in
Limine to exclude Mr. Rael's testimony will be GRANTED.
Defendants' Motions in Limine to Exclude the Testimony of
plaintiff's Expert Roger A. Clark
retained Roger A. Clark to conduct an evaluation and render
his opinion on Defendants Salazar and Esparza's use of
force and tasing of Mr. Martinez. (Doc. 110-1) at 1.
Clark seeks to testify that Defendants Salazar and Esparza
used excessive force while interacting with Mr. Martinez, and
that there appears to be inadequate policies and procedures
within the EDPS regarding the use of force and accommodating
individuals with disabilities. Id. at 10-12. In
their First and Second Motions in Limine, Defendants move to
exclude Mr. Clark's testimony on several grounds.
Plaintiff opposes both motions in their entirety.
Defendants' First Motion in Limine
their First Motion in Limine, Defendants move to exclude Mr.
Clark's testimony with regard to plaintiff's
excessive force claims on the grounds that he makes factual
and credibility determinations, draws legal conclusions,
discusses police operating procedures and national police
practices, and focuses on “less intrusive”
alternatives to the use of force in this case. In response,
Plaintiff maintains that Mr. Clark does not vouch for any
witness's credibility or come to ...