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Bevan v. Valencia

United States District Court, D. New Mexico

September 4, 2018

AEVIEE BEVAN, as Personal Representative of the Estate of Desiree Gonzales, deceased, Plaintiff,
GABRIEL VALENCIA, Youth Development Admin., Individually; MATTHEW EDMUNDS, Corrections Officer, Individually; JOHN ORTEGA, Corrections Officer, Individually; MOLLY ARCHULETA, Corrections Nurse, Individually; and NATHAN PAUL UNKEFER, M.D., Defendants.


         This matter comes before the Court on the County Individual's Motion in Limine to Exclude Testimony of Plaintiff s Proffered Liability Experts Andrea Wiseman [sic], Ph.D. and Michael Cohen, M.D., filed July 13, 2018. (Doc. 280). Defendant Nathan Paul Unkefer, M.D. joins in the motion. (Doc. 285). Plaintiff filed a response to the motion on August 2, 2018. (Doc. 294). The Court also heard argument on the motion on August 29, 2018. Having considered the motion, the response, and the argument of counsel, the Court grants this motion in limine as described herein.

         A. The Motion

         County Individuals move to exclude the testimony of Plaintiff s experts Dr. Andrea Weisman, Ph.D., a psychologist, and Dr. Michael Cohen, M.D. County Individuals contend that their testimony focuses on whether the Santa Fe Youth Development Program (YDP) and its staff conformed to policies and internal standards of a national accreditation entity.

         1. Argument that Expert Testimony is Unnecessary and Unhelpful

         First, County Individuals argue that the expert testimony is unnecessary and unhelpful because the factual issues for trial concern the state of mind of the four individual County Defendants, i.e., whether those individuals were deliberately indifferent to Desiree Gonzales' medical needs and, therefore, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment.[1] In fact, the Court, in ruling on motions for summary judgment, concluded that expert testimony is not required to establish deliberate indifference to medical needs. See (Doc. 220) at 4; (Doc. 222) at 8. See also Powell v. Shah, 618 Fed.Appx. 292, 296 (7th Cir. 2015) (holding that where "the only issue in this case was whether the doctors had a 'sufficiently culpable state of mind' ... the court accurately recognized [it] as a subjective inquiry that did not require an expert....") (citations omitted); Campbell v. Sikes, 169 F.3d 1353, 1371 n. 22 (11th Cir. 1999) (finding that expert's affidavit does not support finding of deliberate indifference, which is subjective inquiry).

         County Individuals also note that the Tenth Circuit "has consistently held that the violation of police regulations is insufficient to ground a § 1983 action for excessive force." Tanberg v. Sholtis, 401 F.3d 1151, 1163 (10th Cir. 2005). In the excessive force context, this Court has concluded that evidence of officers not following standard operating procedures (SOPs) and police training is not relevant to a Fourth Amendment claim and is excludable under Fed.R.Evid. 402. Mata v. City of Farmington, 798 F.Supp.2d 1215, 1234-35 (D.N.M. 2011). County Individuals contend that this precept applies equally to barring evidence of procedures and national standards for violations of other constitutional rights. County Individuals cite W.K. v. Howie wherein Judge Johnson held in a non-excessive force lawsuit that "Plaintiff may not rely on SOP's as a means to establish or prove a constitutional violation and will not be considered here." 2016 WL 9777158, at *5 (D.N.M.) (case involving two police officers who removed a child from plaintiffs home, and claims included (1) unreasonable seizure under the Fourth Amendment, (2) violations of substantive and procedural due process under the Fourteenth Amendment, and (3) a violation of the right to familial association under the First Amendment).

         County Individuals further argue that experts cannot define the law of the case by testifying to violations of procedures. The Tenth Circuit has held

an expert's testimony is proper under Rule 702 if the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function. However, when the purpose of testimony is to direct the jury's understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed. In no instance can a witness be permitted to define the law of the case.

Specht v. Jensen, 853 F.2d 805, 809-10 (10th Cir. 1988). "Expert testimony on legal issues crosses the line between the permissible and impermissible when it 'attempts] to define the legal parameters within which the jury must exercise its fact-finding function.'" Smith v. Ingersoil-Rand Co., 214 F.3d 1235, 1246 (10th Cir. 2000) (quoting id. at 809-10) (emphasis added)). In other words, an expert cannot opine as to legal conclusions. United States v. Littlejohn, 2009 WL 5065559, at *3 (W.D. Okla.). Moreover, an expert cannot be a "mere mouthpiece for the expression of [a party's] version of events." Id. at *5.

         Finally, an expert cannot "vouch for the credibility of another witness...." United States v. Adams, 271 F.3d 1236, 1245 (10th Cir. 2001). Such testimony is not helpful to a jury and "encroaches upon the jury's vital and exclusive function to make credibility determinations...." Id.

         2. Argument that Expert Testimony on Objective Standards has no Relevance to Remaining Issues of Fact

         First, County Individuals note that Drs. Weisman and Cohen both contend in their reports that YDP did not follow certain internal policies based on standards of a national accreditation entity. In that sense, the reports are overlapping.

         Second, County Individuals argue that by presenting industry standards and how to apply those standards, Drs. Wiseman and Cohen are establishing an objective standard of care to which a youth detention facility must adhere to avoid being found negligent. Defendant Santa Fe County, however, is no longer a Defendant so such an objective standard of care is inapplicable to the County. An objective standard of care also does not apply to the County Individuals, who are under a subjective deliberate indifference test.

         County Individuals acknowledge that Plaintiff may offer evidence that an individual violated an internal policy in order to show that such conduct is consistent with deliberate indifference. County Individuals argue that an expert is not necessary for that purpose. Rather, Plaintiff can present the policy and the policy violation by the individual, then argue ...

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