United States District Court, D. New Mexico
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.
MEMORANDUM OPINION AND ORDER
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.
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.
Argument that Expert Testimony is Unnecessary and
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. 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).
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).
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.
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
Argument that Expert Testimony on Objective Standards has no
Relevance to Remaining Issues of Fact
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
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.
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