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Martinez v. Salazar

United States District Court, D. New Mexico

December 14, 2016

JACKIE MARTINEZ, as Personal Representative on behalf of the Estate of Russell Martinez, Plaintiff,
v.
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

          This 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 Limine.

         I. Background

         This is 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”).[1] (Doc. 88).

         In the 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.

         Based 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 case.

         Each 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.

         II. Standard of Review

         Under 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 citations omitted).

         In 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.

         III. Discussion

         Both 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.

         A. plaintiff's Motion in Limine to Exclude the Report and Testimony of Defendants' Expert Raymond J. Rael

         Defendants 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.

         “[The 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).

         Upon 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.

         However, 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.

         Because 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.

         B. Defendants' Motions in Limine to Exclude the Testimony of plaintiff's Expert Roger A. Clark

         Plaintiff 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.

         Mr. 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.

         1. Defendants' First Motion in Limine

          In 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 ...


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