United States District Court, D. New Mexico
LYDIA LEYBA and LAWRENCE TRUJILLO, as co-personal representatives of the ESTATE OF ROBERT DOMINGUEZ, deceased, Plaintiffs,
CITY OF SANTA FE; CHARLES A. LARAMIE, II; RAYMOND J. RAEL; BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY; SANTA FE REGIONAL EMERGENCY COMMUNICATIONS CENTER BOARD OF DIRECTORS; ROBERT EAGAN; JUDITH EAGAN; LIVEWATCH SECURITY LLC d/b/a SAFEMART; and DOES I-V; Defendants.
ORDER GRANTING LIVEWATCH'S DAUBERT MOTION TO
William P. Lynch United States Magistrate Judge.
lawsuit is based upon the accidental shooting of Robert
Dominguez, the father of Plaintiffs, by Officer Charles
Laramie of the Santa Fe Police Department in the early
morning hours of March 4, 2013. Mr. Dominguez was seriously
injured, and Plaintiffs sued Officer Laramie, his supervisor,
Chief of Police Raymond J. Rael, and his employer, the City
of Santa Fe; the Board of County Commissioners of Santa Fe
County and Santa Fe Regional Emergency Communications Center
Board of Directors, which operates the County's 911
Center; Robert and Judith Eagan, who owned the house where
the shooting occurred; and LiveWatch Security, the
Eagans' home alarm system company. At issue is
Livewatch's Daubert motion to exclude testimony
from Roger Clark, Plaintiff's liability expert. (Doc.
has submitted an expert report that concludes that Livewatch,
Officer Laramie, the Santa Fe Police Department, and the 911
Center all share responsibility for the sequence of events
that led to the wounding of Mr. Dominguez. Concerning his
opinions as to Livewatch's culpability, Clark relies upon
the following facts: 1) Livewatch installed and monitored an
alarm system at the Eagans' house; 2) It is undisputed
that the alarm activation at the Eagans' house on March
4, 2013 was a malfunction and not because of criminal
activity; 3) Livewatch notified Mr. Dominguez on March 4,
2013 that the Eagans' alarm system was going off; 4)
Livewatch then notified the County's 911 Center about the
alarm notification, and failed to advise the 911 Center that
it had already contacted Mr. Dominguez to respond to the
house; and 5) Livewatch received a second alarm activation at
the Eagans' house, and failed to notify the 911 Center
that this meant that Mr. Dominguez had entered the house.
Based upon these facts, Clark concludes that this incident
began as an alarm malfunction, and Livewatch incompetently
reacted to the alarm notifications that night and further
violated its own written protocols regarding alarm monitoring
communications that would have eliminated the risk to Mr.
argues that, while Clark may be qualified to offer expert
testimony about police procedures, he is not qualified to
testify regarding alarm equipment malfunction and monitoring
procedures. Further, it argues that his opinions are not
reliable because they ignore key facts of this case, and it
raises evidentiary challenges to some of Clark's
opinions. In response, Plaintiffs contend that
Livewatch's motion is premature and would be more
appropriately raised through a pretrial motion in limine.
Plaintiffs also argue that Clark's opinions are reliable
and Livewatch should challenge them through
cross-examination, and that Clark's experience as a
police officer qualifies him to testify in this area.
argument that the Daubert motion is premature is
worth the one sentence they devote to it. Courts enter
scheduling orders so that discovery proceeds in a
(relatively) straightforward fashion so the case can either
be settled or prepared for trial. Scheduling orders are not
idly entered by courts, and are disregarded by counsel at
their peril. Washington v. Arapahoe Cnty. Dep't of
Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000). The
scheduling order requires that Daubert motions be
filed by December 1, 2016, and Livewatch's motion was
filed on that date.
admissibility of expert testimony is analyzed under
Daubert and Federal Rule of Evidence 702, pursuant
to which judges must serve as gatekeepers to keep scientific
and other expert testimony that is not reliable and relevant
out of the courtroom. Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 596-97 (1993). For expert testimony
to be admissible, the judge must ensure that the expert is
sufficiently qualified to give the opinion, the expert's
methodology must be sufficiently reliable, and the testimony
must assist the trier of fact to understand an issue in the
case. Id. In Kumho Tire, the Supreme Court
made clear that the Daubert framework applies not
only to scientific testimony, but to all expert testimony.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147
determining whether expert testimony is admissible, the
district court generally must first determine whether the
expert is qualified ‘by knowledge, skill, experience,
training, or education' to render an opinion.”
United States v. Nacchio, 555 F.3d 1234, 1241 (10th
Cir. 2009) (quoting Fed.R.Evid. 702). “Second, if the
expert is sufficiently qualified, the court must determine
whether the expert's opinion is reliable by assessing the
underlying reasoning and methodology, as set forth in
Daubert.” Id. The court must also
decide whether the testimony is relevant; that is, whether it
would aid the jury in resolving a factual issue. Bitler
v. A.O. Smith Corp., 400 F.3d 1227, 1238 (10th Cir.
2004). Because “there are many different kinds of
experts, and many kinds of expertise, ” the
Daubert factors are not a definitive checklist or
test and some factors may not be pertinent to assessing the
reliability of non-scientific experts. Kumho Tire,
526 U.S. at 150; see generally William P. Lynch,
Doctoring the Testimony: Treating Physicians, Rule 26,
and the Challenges of Causation Testimony, 33 Rev.
Litig. 249, 301-09 (2014).
considering Daubert challenges to expert testimony,
courts must be careful to maintain the proper balance between
the court's role as gatekeeper and the jury's role as
the ultimate fact finder. McDowell v. Brown, 392
F.3d 1283, 1299-1300 (11th Cir. 2004). To present expert
testimony, a party need not prove that his expert is
indisputably correct or that his theories are
“generally accepted” in the relevant community.
Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th
Cir. 2003). Instead, the party must show that the methods
employed by the expert in reaching his conclusions are based
on reliable methodologies and that his opinions are based on
facts sufficiently tied to the case. Id. When expert
testimony meets the Daubert standard, the expert may
testify and the fact finder decides how much weight, if any,
to give that testimony. Zuchowicz v. United States,
140 F.3d 381, 387 (2d Cir. 1998).
first challenges Clark's qualifications to offer expert
testimony on the topics of alarm equipment malfunction and
alarm monitoring procedures. Plaintiffs bear the burden of
showing that their expert testimony is admissible. Conroy
v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013). When
an expert's qualifications are challenged, a party must
show that the expert has skill, experience or knowledge in
the particular field at issue or that it falls within the
reasonable confines of the witness's expertise.
Id. at 1169.
name of his business, Police Procedures Consultant, Inc., is
the first hint as to Clark's area of possible expertise.
In his report, he states that he served for 27 years as a law
enforcement officer, and since his retirement in 1993 has
held himself out as an expert in jail and police procedures.
He claims to have testified as an expert in the following
areas: use of force, jail procedures and jail administration,
investigations, police procedures, investigative procedures,
shooting scene reconstruction, police administration and
Taser weapons. He does not claim in his report to have any
knowledge, skill, experience, training or education about
alarm equipment malfunction and alarm monitoring procedures.
The report also does not disclose any studies, tests or
experiments he performed, any industry standards or
literature about alarm equipment malfunction or monitoring
procedures he reviewed, or that he has testified as an expert
in this field.
recognizing these problems, Plaintiffs gently back away from
claiming that Clark is qualified to render most of his
opinions concerning Livewatch. They agree they will not
elicit testimony from Clark concerning the functioning of the
alarm equipment itself. They also agree not to elicit
testimony from Clark about Livewatch's internal
operations, its training methods or its written protocols
regarding alarm monitoring communications. Plaintiffs rely
solely on the argument that Clark's training in the
handling of alarm activations and his personal response as a
police officer to them qualifies him to offer expert
testimony on how Livewatch's alarm monitoring operators
should handle responses to alarm calls.
true that an expert witness can be qualified solely on
experience. Nacchio, 555 F.3d 1258. But when that is
the case, “‘the witness must explain how that
experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how
that experience is reliably applied to the facts.'”
Id. (quoting Fed.R.Evid. 702 advisory
committee's note (2000)). Plaintiffs fail to explain how
Clark's training in handling alarm activations or his
experience as a police officer responding to them qualifies
him as an expert on alarm monitoring procedures. A
court's gatekeeping function “requires more than
simply ‘taking the expert's word for
it.'” Id. Because he is not qualified to
testify about alarm equipment or monitoring procedures,
Clark's testimony on these issues must be excluded.
See Conroy, 707 F.3d at 1168-69 (Court affirms
decision that expert could not testify about sex stereotyping
in the workplace because she had no skill, experience or
knowledge in the field and it did not fall within the
reasonable confines of her expertise); Milne v. USA
Cycling, Inc., 575 F.3d 1120, 1133-34 (10th Cir. 2009)
(Court affirms decision to exclude expert testimony on
standard of care in mountain-bike races because the expert
was not sufficiently qualified to give such testimony).
also challenges the reliability of Clark's opinions.
Courts determine whether an expert's opinion is reliable
by assessing the reasoning and methodology used by the
expert. Nacchio, 555 F.3d at 1241. The party
offering the testimony must show, among other things, that
the opinions are based on facts which satisfy Rule 702's
reliability requirements. Conroy, 707 F.3d at 1170.
When an expert is “oblivious to [ ] key facts” in
a case, his opinion cannot rest on a reliable foundation.
Id.; see also Onyiah v. St. Cloud State
Univ., 684 F.3d 711, 720 (8th Cir. 2012) (expert
testimony is properly excluded when it is excessively
speculative or unsupported by sufficient facts); Elcock
v. Kmart Corp., 233 F.3d 734, 754-56 (3d Cir. 2000)
(economist's testimony on economic damages should have
been excluded because his assumptions were not supported by a
sufficient factual foundation).
Conroy, Clark is oblivious to key facts in this
case. Livewatch contests that the alarm activation was a
malfunction, although Clark confidently asserts this issue is
undisputed. Plaintiffs argue that Clark's mistake as to
what company monitored the Eagans' alarm system is not
properly raised through a Daubert motion. This is
nonsense, of course, because courts are required to keep
expert testimony that is not reliable out of the ...