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Home My WebLink About2019-cv-901 - Surat v. City of Fort Collins, et al. - 143 - Dfs' Motion Strike Pl's ExpertIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 19-cv-00901-WJM-NRN MICHAELLA LYNN SURAT, Plaintiff, v. RANDAL KLAMSER, in his individual capacity, and CITY OF FORT COLLINS, a municipality, Defendants. ______________________________________________________________________________ DEFENDANTS’ MOTION FOR LEAVE TO FILE MOTION TO STRIKE PLAINTIFF’S EXPERT PURSUANT TO F.R.C.P. 702 ______________________________________________________________________________ Defendants RANDALL KLAMSER, in his individual capacity, and the CITY OF FORT COLLINS, a municipality, by and through their attorneys, Mark S. Ratner and John F. Peters, Hall & Evans, L.L.C., and John R. Duval, City of Fort Collins, City Attorney’s Office, hereby submit this Motion for Leave to File a Motion to Strike Plaintiff’s Expert, Mr. Dan Montgomery, pursuant to Federal Rules of Civil Procedure 702, and in support of this motion, state as follows: CONFERRAL Undersigned Counsel conferred with Counsel for Plaintiff regarding the relief requested in this Motion. Counsel for Plaintiff opposes any such relief. I. INTRODUCTION AND ARGUMENT Generally, this matter arises out of Plaintiff’s claim of excessive force against Officer Klamser for use of a takedown maneuver during Ms. Surat’s arrest, and a claim against the City of Fort Collins for unconstitutional custom, practices and/or policies which were purportedly the proximate cause for the use of excessive force. Case 1:19-cv-00901-WJM-NRN Document 143 Filed 01/19/21 USDC Colorado Page 1 of 5 On January 4, 2021, Defendants filed their Combined Reply in Support of Motion to Dismiss and Motion for Summary Judgment (ECF 142). In providing the Reply, the Defendants addressed and objected to certain opinions of Plaintiff’s retained expert, Dan Montgomery. The objections consisted of criticizing Plaintiff’s version of Mr. Montgomery’s opinions as set forth in his report (See e.g. ECF 142 at 5, RCUF 1 24); characterizing Mr. Montgomery’s opinions as “20/20 hindsight” (See e.g. ECF 142 at 5, RCUF 27); and criticizing Mr. Montgomery’s opinions regarding alternatives to Officer Klamser’s takedown technique (See e.g. ECF 142, at 15). In support of his opinions, Mr. Montgomery relies on “established police practices and guidelines,” including those adopted by the International Association of Chiefs of Police (See e.g., ECF 128-6 at 3, 17, ); the Department of Justice (See e.g. ECF 128-6 at 5-6); and the Police Executive Research Forum (See e.g. ECF 128-6 at 6). Plaintiff’s relied on Mr. Montgomery’s opinions to an extent, but her Response did not extensively rely on the “established police practices or guidelines.” It did, however rely on “established police practices” (See ECF 128 at 15, ¶ 30, 36, 55). In the Reply, the Defendants did have an opportunity to minimally address “guidelines” (See ECF 142 at 15, RCUF 24). The Court’s Practice Standards provide that a Rule 702 Motion must be filed no later than 70 days (10 weeks) before the Final Trial Preparation Conference, unless the motion challenges expert evidence submitted in support of summary judgment briefing. In that case, the motion must be filed contemporaneously with the summary judgment response or reply, as appropriate (Honorable William J. Martinez’ Practice Standards, III(H)(2)(a)). The Defendants generally contend Mr. Montgomery’s opinions rely on standards and guidelines which usurp the function of the jury and ultimately instruct them on law which is not 1 RCUF is Reply Concerning Undisputed Facts. Case 1:19-cv-00901-WJM-NRN Document 143 Filed 01/19/21 USDC Colorado Page 2 of 5 applicable to this matter. Although the standards and guidelines relied on by Mr. Montgomery were not extensively discussed in Plaintiff’s Response, it appears that upon consideration of the Court’s Practice Standards, a 702 Motion should have been filed with Defendants’ Reply. The Defendants are, therefore, requesting leave to file a 702 motion. In consideration of this request, the Defendant further states that any such motion is not intended as a “veiled dispositive motion”. (Honorable Judge Martinez’ Practice Standard III(H)(1)). In other words, even if a 702 motion is considered with the pending Motion for Summary Judgment, exclusion of Mr. Montgomery’s opinions would not necessarily leave Plaintiff without the evidence necessary to prove an element of her claim, as it is the Defendants’ position such opinions are unnecessary given the Graham factors, the totality of the circumstances, and other applicable law. WHEREFORE, Defendants respectfully request the Court grant this Motion and allow the filing of a 702 motion seeking to strike Plaintiff’s expert, Dan Montgomery. Respectfully submitted this 19th day of January, 2021. Respectfully submitted, s/ Mark S. Ratner Mark S. Ratner, Esq. John Peters, Esq. Hall & Evans, L.L.C. 1001 17th Street, Suite 300, Denver, CO 80202 303-628-3300 /Fax: 303-628-3368 ratnerm@hallevans.com petersj@hallevans.com and s/ John R. Duval John R. Duval, Esq. Deputy City Attorney City of Fort Collins P.O. Box 580 Case 1:19-cv-00901-WJM-NRN Document 143 Filed 01/19/21 USDC Colorado Page 3 of 5 Fort Collins, CO 80522 (970) 221-6520 jduval@fcgov.com ATTORNEYS FOR DEFENDANTS Case 1:19-cv-00901-WJM-NRN Document 143 Filed 01/19/21 USDC Colorado Page 4 of 5 CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 19th day of January, 2021, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: David Lane, Esq. Andrew McNulty, Esq. Helen S. Oh, Esq. Killmer, Lane & Newman, LLP 1543 Champa St, Suite 400 Denver, CO 80202 303-571-1000 Phone 303-571-1001 Fax dlane@kln-law.com amcnulty@kln-law.com hoh@kln-law.com Attorneys for Plaintiff Sarah Stefanick, Legal Assistant to Mark S. Ratner Hall & Evans, L.L.C. 1001 Seventeenth St., Suite 300 Denver, CO 80202 Phone: 303-628-3300 Fax: 303-628-3368 ratnerm@hallevans.com ATTORNEYS FOR DEFENDANTS Case 1:19-cv-00901-WJM-NRN Document 143 Filed 01/19/21 USDC Colorado Page 5 of 5