HomeMy WebLinkAbout2023-cv-1341 - Erbacher v. City Of Fort Collins, et al. - 093 - City Rule 702 Motion Strike Pl's ExpertIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-1341-CNS-NRN
Cody Erbacher,
Plaintiff.
v.
City of Fort Collins; and
Jason Haferman.
Defendants.
DEFENDANT CITY OF FORT COLLINS’ MOTION TO STRIKE PLAINTIFF’S EXPERT
DAN CORSENTINO PURSUANT TO FED. R. EVID. 702
Defendant City of Fort Collins, by and through their undersigned counsel, Hall &
Evans, LLC, hereby submit the following as their Motion to Strike Plaintiff’s Expert, Dan
Corsentino, pursuant to Fed. R. Evid. 702:
CERTIFICATE OF CONFERRAL
Undersigned Counsel for the City of Fort Collins, conferred with Counsel for the
Plaintiff, regarding the relief requested in this Motion. Counsel for Plaintiff indicated an
objection to any such relief. Therefore, this Motion is opposed.
CERTIFICATE RE: ARTIFICIAL INTELLIGENCE (“AI”)
Undersigned Counsel hereby certifies that no portion of this filing was drafted by
AI.
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 1 of 15
2
I. INTRODUCTION
This matter arises out of Plaintiff’s arrest on June 11, 2021, by Defendant and
former Fort Collins Police Officer, Jason Haferman, and the ensuing investigation and
prosecution for the crime of Driving Under the Influence (“DUI”). Plaintiff claims
Defendant Haferman’s actions somehow implicate the City of Fort Collins (“City”). In
particular, the Complaint attempts to set forth claims against the City, pursuant to 42
U.S.C. § 1983, for an unconstitutional pattern and practice, a failure to train and supervise,
and a violation of “due process” under the Fourth Amendment.
As part of his efforts to prove his claims against the City, Plaintiff endorsed Dan
Corsentino as an expert. (See generally opinions of Dan Corsentino, attached hereto as
Exhibit A) (“Report”). In rendering his opinions, however, Mr. Corsentino completely
omits any analysis regarding the actions of Defendant Haferman and the determination
of probable cause, vis-à-vis the City, and instead relies on broad, sweeping, unsupported,
and conclusory criticisms. Furthermore, Mr. Corsentino’s opinions do not provide any
proper analysis regarding any alleged unconstitutional pattern or practice, a failure to
train, or a failure to supervise, and instead relies on a dilution of the proper Constitutional
standard, akin to nothing more than negligence or malpractice. In doing so, Mr.
Corsentino effectively and incorrectly dictates to a jury, what law should apply. Mr.
Corsentino’s opinions should, therefore, be excluded from presentation to a jury pursuant
to Fed. R. Evid. 702 and applicable case law. See e.g. Specht v. Jensen, 853 F.2d 805
(10th Cir. 1988); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 2 of 15
3
II. FACTS 1
On June 11, 2021, former Fort Collins Police Officer Jason Haferman, pulled
Plaintiff over in his truck, for accelerating too quickly. (ECF 33 at ¶ 51). After questioning
by Officer Haferman, Plaintiff admitted he had one beer, several hours earlier in the day.
(ECF 33 at ¶ 52). Officer Haferman asked Plaintiff to participate in roadside tests, to
prove he was safe to drive (ECF 33 at ¶ 53). After performing the roadside tests, Officer
Haferman arrested Plaintiff and charged him with driving under the influence (ECF 33 at
¶ 62). On November 10, 2021, Officer Haferman received Plaintiff’s blood test results,
which were negative for alcohol or drugs (ECF 33 at ¶ 79). The charges against Plaintiff
were subsequently dropped by the District Attorney (ECF 33 at ¶ 80).
Plaintiff claims Officer Haferman arrested him without probable cause in violation
of the Colorado Constitution and his Fourth Amendment rights. Plaintiff bases his claims
on a belief the City both maintained an unconstitutional policy with respect to DUI arrests,
and failed to train and/or supervise Officer Haferman.
III. ARGUMENT
A. Corsentino’s Opinions
In his Report, Mr. Corsentino offers the following opinions:
1. Sergeant Allen Heaton and Corporal Jason Bogosian failed in the following
areas:
a. Failed to review Officer Haferman's written reports,
b. Failed to review BWC footage,
c. Failed to review results of blood tests,
d. Failed to randomly and systematically follow up with arrestees
who made complaints about Officer Haferman,
1 The recited facts are taken as true only for the purposes of this Motion to Strike.
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 3 of 15
4
e. Failed to communicate with the District Attorney on the status of
certain cases based on the volume of DUI arrests Haferman was
involved in,
f. Failed to notify Command Staff, specifically the Chief of Police, that
there was a pattern of behavior developing in their DUI enforcement
section,
g. Failure to train properly on DUI Enforcement, and
h. Failed to do a ride along with Officer Haferman to assess how he
established probable cause for a traffic stop.
(Ex. A at 22)
2. The recurring pattern of wrongful arrests and ethical lapses attributed to
Officer Haferman raises serious concerns about the department's training
protocols, supervision mechanisms, and ethical standards enforcement.
(Ex. A at 22)
3. (T)he supervisory roles of Sergeant Allen Heaton in particular comes under
scrutiny, due to his apparent lapses in addressing critical deficiencies in
Haferman not having accurate and detailed police reports, and it does not
appear that Heaton handled internal affairs investigations into
performance complaints that had been made about Haferman very
effectively.
(Ex. A at 22-23).
The report also offers conclusory statements, respecting topics such as
“Supervisor Oversight,” (Ex. A at 11); “Early Red Flags,” (Ex. A at 11); “Performance
Reviews and Feedback of Jason Haferman,” (Ex. A at 18) and; “Maintaining Ethical
Standards.” (Ex. A at 20). Corsentino’s observations involve the City’s review of body-
camera footage, activation of Haferman’s body camera, criticisms of Haferman’s report
writing, and sweeping statements regarding ethics in policing.
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 4 of 15
5
B. Applicable Law
To establish liability of a public entity under 42 U.S.C. §1983, “a plaintiff must show
(1) the existence of a municipal custom or policy and (2) a direct and causal link between
the custom or policy and the violation alleged.” Jenkins v. Wood, 81 F.3d 988, 993 (10th
Cir. 1996), citing City of Canton v. Harris, 489 U.S. 378, 385 (1989). The Supreme
Court described the requirements a plaintiff must meet to impose public entity liability as
follows: “It is not enough for a §1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate that, through its
deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That
is, a plaintiff must show that the municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link between the municipal action and
the deprivation of federal rights.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520
U.S. 397, 404 (1998) (emphasis added).
Under these standards, municipal liability may arise only out of official customs or
policies, or for the actions of a final policymaker to any extent that such policies, customs,
or policymakers can be shown to be responsible for a constitutional violation. See Brown,
520 U.S. at 403-404. Establishing deliberate conduct and the “requisite degree of
culpability,” means municipal liability attaches only where “a deliberate choice to follow a
course of action is made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter in question.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); Myers v. Oklahoma Cnty.
Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1319 (10th Cir. 1998).
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 5 of 15
6
“Under § 1983, government officials are not vicariously liable for the misconduct of
their subordinates. ‘There is no concept of strict supervisor liability under § 1983.’” Serna
v. Colo. Dept. of Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006), citing Jenkins v.
Wood, 81 F.3d 988, 994 (10th Cir. 1996); see also Bass v. Robinson, 167 F.3d 1041,
1048 (6th Cir. 1999) (“Liability . . . must be based upon more than a mere right to control
employees.) “Where a plaintiff claims that the municipality has not directly inflicted an
injury, but nonetheless has caused an employee to do so, rigorous standards of culpability
and causation must be applied to ensure that the municipality is not held liable solely for
the actions of its employee.” Schneider v. City of Grand Junction Police Dep’t, 717
F.3d 760, 770 (10th Cir. 2013), citing Brown, 520 U.S. at 405. “The causation element is
applied with especial rigor when the municipal policy or practice is itself not
unconstitutional, for example, when the municipal liability claim is based upon inadequate
training, supervision, and deficiencies in hiring.” Schneider, 717 F.3d at 770, citing Martin
A. Schwartz, Section 1983 Litigation Claims & Defenses, § 7.12.
“[F]or claims of inadequate. . . training. . . a plaintiff ‘must demonstrate that the
municipal action was taken with deliberate indifference as to its known or obvious
consequences.’” Hernandez v. City and Cnty. of Denver, 2022 U.S. Dist. LEXIS
151302, at *3 (D. Colo. Aug. 23, 2022), citing Waller v. City and Cnty. of Denver, 932
F.3d 1277, 1284 (10th Cir. 2019). “[A] less stringent standard of fault for a failure-to-train
claim ‘would result in de facto respondeat superior liability on municipalities.’” Hernandez,
at *3, citing Connick v. Thompson, 563 U.S. 51, 62 (2011), citing City of Canton v.
Harris, 489 U.S. 378, 392 (1989). “A pattern of similar constitutional violations by
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 6 of 15
7
untrained employees is ordinarily necessary to demonstrate deliberate indifference for
purposes of failure to train.” Erickson v. City of Lakewood, 489 F. Supp. 3d 1192, 1208
(D. Colo. Sept. 24, 2020), citing Connick, 563 U.S. at 62.
“We treat allegations of failure to supervise (which often may be indistinguishable
from failure to train) the same way. Whitewater v. Goss, 192 Fed. Appx. 794, 797 (10th
Cir. 2006) referring to Medina v. City & County of Denver, 960 F.2d 1493, 1500 (10th
Cir. 1992); Schepp v. Fremont County, 900 F.2d 1448, 1454 (10th Cir. 1990); Meade
v. Grubbs, 841 F.2d 1512, 1527-28 (10th Cir. 1988).
C. Corsentino’s Proposed Expert Opinions Must Be Excluded by the Court as
Any Such Opinions Do Not Meet Rule 702’s Reliability or Relevancy
Requirements.
Pursuant to Daubert and Kumho Tire, an expert is required to offer opinions
based on reliable methodology and which are relevant to the issues in the matter. The
Court may determine initial questions respecting admissibility of expert testimony
pursuant to Fed. R. Evid. 104(a). “The court must decide any preliminary question about
whether a witness is qualified, a privilege exists, or evidence is admissible.” Fed. R. Evid.
104(a). Rule 104(a) requires a proponent of the testimony to salvage its admissibility by
a preponderance of the evidence. See Ralston v. Smith & Nephew Richards, Inc., 275
F.3d 965, 970, n. 4 (10th Cir., 2001); In Re Breast Implant Litigation 11 F.Supp. 2d
1217, 1222 (D. Colo. 1998); See also In Re Williams Sec. Litig., 496 F.Supp. 2d 1195,
1230, and n. 10 (N.D. Okla. 2007).
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 7 of 15
8
Additionally, a determination as to the admissibility of Corsentino's proposed
expert opinions should also be made under Fed. R. Evid. 702 which provides in pertinent
part:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based
on the sufficient facts or data; (c) the testimony is the product of
reliable principals and methods; and (d) the expert has reliability
applied the principles and methods to the facts of the case.
In Daubert, the Supreme Court interpreted Rule 702 to mean that when a trial
judge is “[f]aced with a proffer of expert scientific testimony ... the trial judge must
determine at the outset ... whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.”
United States v. Benally, 541 F.3d 990, 994 (10th Cir. 2008), citing Daubert, 509 U.S.
at 592. To be reliable under Daubert, proposed expert testimony must be supported by
scientific principles and by “appropriate validation – i.e., ‘good grounds,’ based on what
is known.” Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003). Daubert directs
a district court making a Rule 702 reliability assessment to consider whether the
testimony: (1) can be and has been tested; (2) was subjected to peer review and
publication; (3) has a known or potential rate for error; and (4) has attained general
acceptance in the relevant scientific community. Magdaleno v. Burlington N.R.R. Co.,
5 F. Supp. 2d 899, 902 (D. Colo. 1998); see Truck Ins. Exch. v. MagneTek, Inc., 360
F.3d 1206, 1210 (10th Cir. 2004). In certain cases, “the relevant reliability concerns may
focus upon personal knowledge or experience.” Kumho Tire, 526 U.S. at 150. However,
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 8 of 15
9
requiring expert opinions to be based on reliable methodology is essential, because an
expert is not permitted to speculate. Milne v. USA Cycling Inc., 575 F.3d 1120, 1133-34
(10th Cir. 2009).
The Court’s gatekeeping “requires more than simply taking the expert’s word for
it.” United States v. Nacchio, 555 F.3d 1234, 1258 (10th Cir. 2009), citing Fed. R. Evid.
702 Advisory Committee Note (2000). “[N]othing in either Daubert or the Federal Rules
of Evidence requires a district court to admit opinion evidence that is connected to existing
data only by the ipse dixit of the expert. A court may conclude that there is simply too
great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997). Expert opinions “are valueless as evidence without
exploration of the underlying facts and rationale showing the path from the facts to the
opinion.” U.S. v. R.J. Reynolds Tobacco Co., 416 F. Supp. 316, 325 (D.N.J. 1976).
1. Corsentino’s Opinions are not Based on any Reliable Methodology.
Mr. Corsentino’s Report offers generalized criticisms of various generalized factual
aspects, but provides no supporting standards, grounded in reliable and repeatable
methodology. For example, the Report states Mr. Corsentino was retained to offer
opinions with respect to “minimal baselines of supervision in policing,” and opines “not
even the most minimal or baseline levels of supervision were exercised with respect to
Officer Haferman,” but no such baselines are identified. (Ex. A at 7 & 11); Mr. Corsentino
believes the FCPS Command Staff were not adhering to “minimal standards of
supervision”, but no such standards are identified or defined. (Ex. A at 9); Mr. Corsentino
states, “a minimal standard for this type of critical supervision in policing should be
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 9 of 15
10
random audits of at least a few of each officer's videos each quarter,” but no reference to
any “standard” is set forth (Ex. A at 15). Mr. Corsentino relies on these standards to
render his opinions, but any such standards are not the product of identifiable and reliable
principles and methods. Furthermore, there are no indications in the Report, the opinions
are subject to any sort of peer review or have attained general acceptance in the relevant
community.
The Report also provides no indication as to how any of the opinions assist the
trier of fact to determine the issue of Haferman’s probable cause determination. The
Report criticizes areas such as the failure of Haferman to activate his body-worn camera
on a number of occasions (Ex. A at 12), and a Lieutenant’s apparent berating of a citizen
who made a complaint about Haferman, unrelated to any of the pending DUI matters (Ex.
A at 12), but there is no reasoning provided as to how these opinions would assist the
trier of fact, with respect to Haferman’s probable cause determination. The Report, in fact,
does not even address the specific arrest of the Plaintiff. Any such opinions should
therefore be precluded. Specht, 853 F.2d at 810.
2. Corsentino’s Opinions Should be Precluded on Relevancy Grounds as
Posing Potential to Confuse a Jury.
Even if proffered expert testimony meets these “reliability” criteria, this Court also
must determine such testimony is relevant to the case, because “the expert testimony
must ‘fit’ the facts at issue, requiring a valid scientific connection between the testimony
and issue sought to be proven.” Magdaleno, 5 F. Supp. 2d at 902. The reliability focus is
on the proposed expert’s principles and methodology, not on conclusions reached.
Daubert, 509 U.S. at 595. An expert cannot simply tell the jury what result it should reach
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 10 of 15
11
without an adequate explanation of appropriate criteria for that opinion. See United
States v. Richter, 796 F.3d 1173, 1195-96 (10th Cir. 2015).
The premises for Plaintiff’s allegation of a constitutional violation, relies on actions
of Mr. Haferman’s determination of probable cause. It is, therefore, necessary for Mr.
Corsentino’s opinions to provide an identifiable nexus between his criticisms of FCPS,
and Haferman’s probable cause determination. Merely identifying alleged flaws in the
administrative functions of FCPS, however, is both insufficient and irrelevant to
establishing the City’s constitutional liability. In particular, allowing opinions such as the
City failed to follow minimal standards of supervision, or failed to audit body-worn
cameras according to some, unidentifiable schedule, without consideration of the
Haferman’s actions, does not consider the need for Plaintiff to establish a direct and
causal link between any specific custom or policy and the violation alleged, or even the
City’s culpable state of mind. Jenkins 81 F.3d at 993.
Allowing Mr. Corsentino’s opinions, also risks impermissibly establishing liability
based on respondeat superior, without establishing an underlying constitutional violation.
“Municipal liability requires an underlying constitutional violation.” Jurinsky v. Arapahoe
Cnty. Dep’t of Hum. Servs., 2024 U.S. App. LEXIS 25487, *10-11 (10th Cir. 2024),
citing Burke v. Regalado, 935 F.3d 960, 998 (10th Cir. 2019). “A core principle
of Monell liability is that municipal entities are liable for only their own actions and not
vicariously liable for the actions of their employees.” Jurinsky, supra, citing Crowson v.
Wash. Cnty., Utah, 983 F.3d 1166, 1191 (10th Cir. 2020). “But ‘[b]ecause municipalities
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 11 of 15
12
act through officers, ordinarily there will be a municipal violation only where an individual
officer commits a constitutional violation.’” Jurinsky, supra, citing Burke, supra.
Mr. Corsentino’s opinions criticize the actions of Sergeant Heaton and Corporal
Bogosian. (Ex. A at 22-23). But, neither are defendants in this matter and even if they
were, the opinions establishing liability against the City, based on their actions (or the
actions of others), is improper and should be precluded.
D. Corsentino’s Proposed Expert Opinions must be Excluded by the Court as
Improper Legal Opinions that Inappropriately Invade the Province of both the
Court and the Jury.
Mr. Corsentino generates his opinions against the City of Fort Collins, without
considering the relevant constitutional standards related to municipal liability. By doing
so, the jury is effectively instructed that the criticisms outlined by Mr. Corsentino, create
the standard by which the City should be judged. For example, when Mr. Corsentino
opines the City failed to adhere to minimal supervisory standards, he does so without
consideration of deliberate conduct, causal nexus, or even identification of a custom,
policy or practice. Allowing Mr. Corsentino to opine the City failed to meet some
unidentified standard, or that any such failures stem from the actions of Sergeant Heaton,
Corporal Bogosian, or any other individual associated with FCPS, effectively dilutes
Plaintiff’s burden to something which is more akin to a negligence or malpractice
standard. By implicitly instructing the jury on an incorrect and “lower” standard, the
function of the jury is usurped and the Court’s function in instructing on the proper
Constitutional burden is overtaken. Any such approach is improper, and should be
precluded.
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 12 of 15
13
In Specht, the Tenth Circuit held “a witness cannot be allowed to give an opinion
on the question of law,” and “in order to justify having courts resolve disputes between
litigants, it must be posited as an a priori assumption that there is one, but only one, legal
answer for every cognizable dispute.” Specht, 853 F.2d at 807. The Tenth Circuit went
on to explain that to allow anyone other than the judge to state or even opine on the law
would violate this basic concept. Id.
In examining Rule 704, the Tenth Circuit explained:
While testimony on ultimate facts is authorized under Rule 704, the
committee’s comments emphasize that testimony on ultimate
questions of law is not favored. The basis for this distinction is that
the testimony on the ultimate factual question aids the jury in
reaching a verdict; testimony which articulates and applies the
relevant law, however, circumvents the jury’s decision-making
function by telling it how to decide the case.
Specht, 853 F.3d 808; see Oakland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1328
(10th Cir. 1998) (“Generally, an expert may not state his or her opinion as to legal
standards nor may he or she state legal conclusions drawn by applying the law to the
facts.”); A.E. ex rel. Evans v. Indep. Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir.
1991) (“However, an expert may not state legal conclusions drawn by applying the law to
the facts.”) Mr. Corsentino’s opinions are inappropriate under Specht, and should be
precluded.
IV. CONCLUSION
For the foregoing reasons, the City of Fort Collins, requests the Court: enter an
Order directing that a Daubert hearing be conducted with respect to the proposed expert
testimony of Plaintiff’s expert witness Dan Corsentino; following that Daubert hearing,
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 13 of 15
14
strike all of Corsentino’s testimony from any trial in this matter and, enter all such
additional relief as the Court deems just and appropriate.
Respectfully submitted this 4th day of December 2024.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Robert A. Weiner, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300, Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
weinerr@hallevans.com
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 14 of 15
15
CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 4th day of December 2024, a true and correct copy of
the foregoing DEFENDANT CITY OF FORT COLLINS’ MOTION TO STRIKE
PLAINTIFF’S EXPERT DAN CORSENTINO PURSUANT TO FED. R. EVID. 702 was
filed with the Court via CM/ECF and served on the below-listed party by email:
Sarah Schielke, Esq.
sarah@lifeandlibertylaw.com
Jonathan M. Abramson, Esq.
jabramson@sgrllc.com
Yulia Nikolaevskaya, Esq.
jnikolaevskaya@sgrllc.com
s/ Sarah Stefanick
Case No. 1:23-cv-01341-CNS-NRN Document 93 filed 12/04/24 USDC Colorado
pg 15 of 15