1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL MCCURTY, Case No. 21-cv-05435-SI
8 Plaintiff, ORDER RE: DAUBERT MOTIONS 9 v. Re: Dkt. Nos. 85, 86 10 H. MADSEN, et al., 11 Defendants.
12 Plaintiff and defendants each filed one Daubert motion seeking to exclude expert testimony. 13 Dkt. Nos. 85, 86. The Court’s determination as to each motion is detailed below. 14 15 BACKGROUND 16 Plaintiff is a prisoner at the Correctional Training Facility (“CTF”) in Soledad, California. 17 Dkt. No. 1 (“Compl.) at 1.1 On July 15, 2021, plaintiff filed this suit pro se and named the following 18 CTF employees as defendants: Correctional Officer H. Madsen, Correctional Officer Arlene 19 Stephens, Warden Craig Koenig, and Does 1-3. Compl. The Court found plaintiff asserted a 20 cognizable Eight Amendment sexual harassment claim. Dkt. No. 4 (“Order of Service”) at 4. But 21 the Court found plaintiff’s claim of incitement to violence non-cognizable. Id. at 4-5. The Court 22 dismissed defendants Does 1-3. Dkt. No. 22 at 4. 23 In his complaint, plaintiff alleges that on August 10, 2019, defendants Madsen and Stephens 24 conducted a search of plaintiff’s cell and a “clothed body search of Plaintiff.” Compl. ¶ 4. During 25 the search, defendant Madsen ordered plaintiff to step out of the cell and then defendant Madsen 26 pulled down plaintiff’s pants causing his “buttocks to be exposed to the approximately 40 to 60 27 1 other inmates in the wing’s dayroom, other inmates in their cells, and defendant Stephens.” Id. ¶¶ 2 5, 8. After pulling down plaintiff’s pants, defendant Madsen grabbed plaintiff’s buttocks and 3 grabbed and squeezed his genitalia. Id. ¶¶ 13-14. For the aforementioned events, defendant 4 Stephens stood and watched. Id. ¶¶ 9,12. Additionally, plaintiff alleges defendant Warden Koenig 5 has been aware of “staff sexual misconduct” since as early as 2018 and has failed to properly address 6 it. Id. ¶¶ 24, 25. 7 On February 17, 2026, this case was re-assigned to this Court. Dkt. No. 94. The pretrial 8 conference is set for April 21, 2026, and trial is set to begin May 4, 2026. Dkt. No. 97. 9 10 LEGAL STANDARD 11 Federal Rule of Evidence 702 permits the introduction of expert testimony only if “(a) the 12 expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand 13 the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) 14 the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects 15 a reliable application of the principles and methods to the facts of the case.” Fed. R. Evid. 702. “To 16 qualify as an expert, a witness must have ‘knowledge, skill, experience, training, or education’ 17 relevant to such evidence or fact in issue.” U.S. v. Chang, 207 F.3d 1169, 1172 (9th Cir. 2000) 18 (citing Fed. R. Evid. 702). Expert testimony is admissible “only if it is both relevant and reliable.” 19 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). 20 The proponent of the expert testimony has the burden of proving the proposed expert 21 testimony is admissible. Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 22 1996). On December 1, 2023, Rule 702(d) was amended to “clarify and emphasize that expert 23 testimony may not be admitted unless the proponent demonstrates to the court that it is more likely 24 than not that the proffered testimony meets the admissibility requirements set forth in the rule.” Fed. 25 R. Evid. 702 (Adv. Comm. Note, 2023). However, Rule 702 “should be applied with a ‘liberal 26 thrust’ favoring admission.” Messick v. Novartis Pharm. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014) 27 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993)). “Shaky but admissible 1 evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of 2 proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). 3 Rule 702 requires that the trial court act as a “gatekeeper” by “making a preliminary 4 determination that the expert’s testimony is reliable.” Elsayed Mukhtar v. Cal. State Univ., 5 Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002) (citations omitted); see Daubert, 509 U.S. at 597. 6 The decision whether to admit or exclude expert testimony lies within the trial court’s discretion. 7 See General Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997); United States v. Calderon-Segura, 8 512 F.3d 1104, 1109 (9th Cir. 2008). The Ninth Circuit has acknowledged that Daubert “may be 9 harder to apply when the expert testimony is ‘experience-based’ rather than ‘science-based,’” but 10 an examination of reliability may be more important in considering “experience-based” opinion. 11 United States v. Valencia-Lopez, 971 F.3d 891, 898 (9th Cir. 2020). Additionally, Rule 702 “makes 12 no relevant distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ 13 knowledge.” Kumho Tire, 526 U.S. at 147. 14 15 DISCUSSION 16 I. Defendants’ Daubert Motion: Lonnell Goodall 17 Plaintiff enlisted Lonnell Goodall to review and evaluate the prison’s investigation into 18 plaintiff’s allegation of defendants’ sexual misconduct. Mr. Goodall has over twenty-five years of 19 law enforcement experience, including serving in two different detention and corrections facilities. 20 Dkt No. 91-2 ¶¶ 3-4 (“Goodall Report”). Mr. Goodall also worked for nine years in internal affairs 21 where he conducted over 200 internal investigations into employee misconduct. Id. ¶¶ 4, 8-9. 22 Defendants challenge Mr. Goodall’s report and offered testimony on several grounds. Dkt. No. 85. 23 First, defendants argue that Mr. Goodall does not have “operational experience” at the 24 California Department of Corrections and Rehabilitation (“CDCR”) and is unable to testify to the 25 quality of the prison’s investigation. Dkt No. 85 at 3-4. Plaintiff responds that there is no 26 requirement that a witness work for a specific institution to be allowed to testify about the quality 27 of that institution’s investigation. Dkt. No. 91 at 3. Further, plaintiff argues Mr. Goodall has a 1 Goodall’s work conducting internal law enforcement investigations gives him the requisite 2 experience to testify about the quality of an internal investigation and that he does not need to have 3 worked for CDCR to testify to the quality of their investigation. 4 Second, defendants seek to exclude comments from Mr. Goodall that offer improper legal 5 opinions. Dkt. No. 85 at 5. Specifically, defendants object to a line from Mr. Goodall’s where he 6 states, “that the weight of the evidence supports the notion that Defendant Madsen did sexually 7 assault Mr. McCurty.” Id.; See Dkt. No. 91-2 at 17. Plaintiff does not address this point in its brief.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL MCCURTY, Case No. 21-cv-05435-SI
8 Plaintiff, ORDER RE: DAUBERT MOTIONS 9 v. Re: Dkt. Nos. 85, 86 10 H. MADSEN, et al., 11 Defendants.
12 Plaintiff and defendants each filed one Daubert motion seeking to exclude expert testimony. 13 Dkt. Nos. 85, 86. The Court’s determination as to each motion is detailed below. 14 15 BACKGROUND 16 Plaintiff is a prisoner at the Correctional Training Facility (“CTF”) in Soledad, California. 17 Dkt. No. 1 (“Compl.) at 1.1 On July 15, 2021, plaintiff filed this suit pro se and named the following 18 CTF employees as defendants: Correctional Officer H. Madsen, Correctional Officer Arlene 19 Stephens, Warden Craig Koenig, and Does 1-3. Compl. The Court found plaintiff asserted a 20 cognizable Eight Amendment sexual harassment claim. Dkt. No. 4 (“Order of Service”) at 4. But 21 the Court found plaintiff’s claim of incitement to violence non-cognizable. Id. at 4-5. The Court 22 dismissed defendants Does 1-3. Dkt. No. 22 at 4. 23 In his complaint, plaintiff alleges that on August 10, 2019, defendants Madsen and Stephens 24 conducted a search of plaintiff’s cell and a “clothed body search of Plaintiff.” Compl. ¶ 4. During 25 the search, defendant Madsen ordered plaintiff to step out of the cell and then defendant Madsen 26 pulled down plaintiff’s pants causing his “buttocks to be exposed to the approximately 40 to 60 27 1 other inmates in the wing’s dayroom, other inmates in their cells, and defendant Stephens.” Id. ¶¶ 2 5, 8. After pulling down plaintiff’s pants, defendant Madsen grabbed plaintiff’s buttocks and 3 grabbed and squeezed his genitalia. Id. ¶¶ 13-14. For the aforementioned events, defendant 4 Stephens stood and watched. Id. ¶¶ 9,12. Additionally, plaintiff alleges defendant Warden Koenig 5 has been aware of “staff sexual misconduct” since as early as 2018 and has failed to properly address 6 it. Id. ¶¶ 24, 25. 7 On February 17, 2026, this case was re-assigned to this Court. Dkt. No. 94. The pretrial 8 conference is set for April 21, 2026, and trial is set to begin May 4, 2026. Dkt. No. 97. 9 10 LEGAL STANDARD 11 Federal Rule of Evidence 702 permits the introduction of expert testimony only if “(a) the 12 expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand 13 the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) 14 the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects 15 a reliable application of the principles and methods to the facts of the case.” Fed. R. Evid. 702. “To 16 qualify as an expert, a witness must have ‘knowledge, skill, experience, training, or education’ 17 relevant to such evidence or fact in issue.” U.S. v. Chang, 207 F.3d 1169, 1172 (9th Cir. 2000) 18 (citing Fed. R. Evid. 702). Expert testimony is admissible “only if it is both relevant and reliable.” 19 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). 20 The proponent of the expert testimony has the burden of proving the proposed expert 21 testimony is admissible. Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 22 1996). On December 1, 2023, Rule 702(d) was amended to “clarify and emphasize that expert 23 testimony may not be admitted unless the proponent demonstrates to the court that it is more likely 24 than not that the proffered testimony meets the admissibility requirements set forth in the rule.” Fed. 25 R. Evid. 702 (Adv. Comm. Note, 2023). However, Rule 702 “should be applied with a ‘liberal 26 thrust’ favoring admission.” Messick v. Novartis Pharm. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014) 27 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993)). “Shaky but admissible 1 evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of 2 proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). 3 Rule 702 requires that the trial court act as a “gatekeeper” by “making a preliminary 4 determination that the expert’s testimony is reliable.” Elsayed Mukhtar v. Cal. State Univ., 5 Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002) (citations omitted); see Daubert, 509 U.S. at 597. 6 The decision whether to admit or exclude expert testimony lies within the trial court’s discretion. 7 See General Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997); United States v. Calderon-Segura, 8 512 F.3d 1104, 1109 (9th Cir. 2008). The Ninth Circuit has acknowledged that Daubert “may be 9 harder to apply when the expert testimony is ‘experience-based’ rather than ‘science-based,’” but 10 an examination of reliability may be more important in considering “experience-based” opinion. 11 United States v. Valencia-Lopez, 971 F.3d 891, 898 (9th Cir. 2020). Additionally, Rule 702 “makes 12 no relevant distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ 13 knowledge.” Kumho Tire, 526 U.S. at 147. 14 15 DISCUSSION 16 I. Defendants’ Daubert Motion: Lonnell Goodall 17 Plaintiff enlisted Lonnell Goodall to review and evaluate the prison’s investigation into 18 plaintiff’s allegation of defendants’ sexual misconduct. Mr. Goodall has over twenty-five years of 19 law enforcement experience, including serving in two different detention and corrections facilities. 20 Dkt No. 91-2 ¶¶ 3-4 (“Goodall Report”). Mr. Goodall also worked for nine years in internal affairs 21 where he conducted over 200 internal investigations into employee misconduct. Id. ¶¶ 4, 8-9. 22 Defendants challenge Mr. Goodall’s report and offered testimony on several grounds. Dkt. No. 85. 23 First, defendants argue that Mr. Goodall does not have “operational experience” at the 24 California Department of Corrections and Rehabilitation (“CDCR”) and is unable to testify to the 25 quality of the prison’s investigation. Dkt No. 85 at 3-4. Plaintiff responds that there is no 26 requirement that a witness work for a specific institution to be allowed to testify about the quality 27 of that institution’s investigation. Dkt. No. 91 at 3. Further, plaintiff argues Mr. Goodall has a 1 Goodall’s work conducting internal law enforcement investigations gives him the requisite 2 experience to testify about the quality of an internal investigation and that he does not need to have 3 worked for CDCR to testify to the quality of their investigation. 4 Second, defendants seek to exclude comments from Mr. Goodall that offer improper legal 5 opinions. Dkt. No. 85 at 5. Specifically, defendants object to a line from Mr. Goodall’s where he 6 states, “that the weight of the evidence supports the notion that Defendant Madsen did sexually 7 assault Mr. McCurty.” Id.; See Dkt. No. 91-2 at 17. Plaintiff does not address this point in its brief. 8 The Court agrees with defendants’ objection and instructs Mr. Goodall not to make any legal 9 conclusions including “that the weight of the evidence supports the notion that Defendant Madsen 10 did sexually assault Mr. McCurty.” See Dkt. No. 91-2 at 17. 11 Third, defendants claim that Mr. Goodall’s opinions improperly rely on credibility 12 determinations. Dkt. No. 85 at 5-8. Defendants take issue with Mr. Goodall’s testimony that 13 Lieutenant Landrum was biased in his investigation and that plaintiff’s allegations were 14 corroborated and should be given weight. Id. at 6-7. Plaintiff argues that Mr. Goodall’s testimony 15 is not based on credibility determinations, but instead rests on conclusions regarding inconsistent 16 reports. Dkt. No. 91 at 5-6. The Court finds that Mr. Goodall can testify to the quality of the prison’s 17 internal investigation and any inconsistencies therein but cannot weigh the evidence and assert 18 which side’s account is more credible. 19 Fourth, defendants seek to exclude any of Mr. Goodall’s testimony which is based on 20 speculation. Dkt. No. 85 at 8-9. Specifically, defendants seek to exclude Mr. Goodall’s assertions 21 that inmates do not tend to report incidents due to a “fear of retaliation,” as well as his conclusions 22 that Lieutenant Landrum was biased in his investigation. Id. Plaintiff does not specifically defend 23 these assertions made by Mr. Goodall. The Court finds that although Mr. Goodall can testify to 24 inconsistencies in the record, he cannot make conclusions regarding the state of mind of relevant 25 witnesses. 26 Fifth, defendants argue that if Goodall is permitted to testify the Court must limit him to only 27 responding to hypothetical questions. Dkt. No. 85 at 9. Plaintiff does not specifically address this 1 case, but regarding any discussion of use of force tactics such questioning must be limited to 2 hypotheticals. See Valtierra v. City of Los Angeles, 99 F. Supp. 3d 1190, 1198 (C.D. Cal. 2015) 3 (limiting a police procedure expert’s testimony on use of force to “hypothetical questioning so as to 4 avoid invading the province of the jury.”). 5 As explained above, the motion to exclude testimony from Mr. Goodall is GRANTED in 6 part and DENIED in part. 7 8 II. Plaintiff’s Daubert Motion: John Diaz 9 Defendants enlisted John Diaz to review and evaluate the prison’s investigation into 10 plaintiff’s allegation of defendants’ sexual misconduct. Mr. Diaz worked for CDCR for over 11 twenty-five years. Dkt. No. 87-3 at 18 (“Diaz Report”).2 For twenty-three of those years with 12 CDCR, Mr. Diaz worked as a supervisor and master trainer where he trained correctional officers 13 and conducted “policy compliance reviews.” Id. at 18-19. Plaintiff challenges Mr. Diaz’s report 14 and offered testimony on several grounds. Dkt. No. 86. 15 First, plaintiff argues that Mr. Diaz offers no specialized knowledge that will assist the jury. 16 Dkt. No. 86 at 5-7. Specifically, plaintiff argues Mr. Diaz’s experience as a prison operation expert 17 does not relate to any disputed issue, Mr. Diaz’s opinions do not relate to a prison policy or 18 operations issue, and his opinions are based on improper credibility determinations. Id. at 5. 19 Defendants argue that Mr. Diaz’s testimony is necessary so that the jury can understand the 20 “institutional context” in which the defendants’ alleged acts occurred. Dkt. No. 90 at 4. 21 Specifically, defendants argue Mr. Diaz’s testimony is needed for the jury to understand “CDCR’s 22 search procedures and documentation requirements,” “prison gang dynamics,” and “inmate 23 behavior patterns.” Id. at 4-5. The Court finds that Mr. Diaz is allowed to testify because his 24 testimony may assist the jury in determining whether defendants’ actions were appropriate within 25 CDCR’s operational context. 26 Second, plaintiff seeks to exclude comments from Mr. Diaz that intrude on the jury’s 27 1 function. Dkt. No. 86 at 7-8. Plaintiff argues Mr. Diaz engages in impermissible credibility 2 determinations when he states “[n]o evidence has been provided to me that would corroborate 3 [McCurty’s] allegation partially or in its entirety.” Id. Defendants respond that Mr. Diaz analyzes 4 the quality of the documentary record, does not opine on witness truthfulness, and that his testimony 5 will be limited to hypotheticals. Dkt. No. 90 at 5-7. The Court finds that Mr. Diaz can testify to 6 inconsistencies throughout the entire documentary record and why those inconsistencies suggest 7 that defendants were or were not justified in their investigative actions. But Mr. Diaz is not 8 permitted to conclude that some evidence should be credited over other pieces or to opine on whether 9 or not there is enough evidence to “corroborate [McCurty’s] allegation partially or in its entirety.” 10 Third, plaintiff argues that Mr. Diaz’s testimony will unfairly prejudice plaintiff, a convicted 11 felon. Dkt. No. 86 at 8-9. Defendants respond that the probative value of Mr. Diaz’s testimony 12 regarding the institutional context, is not substantially outweighed by any prejudicial effect of the 13 testimony. Dkt. No. 90 at 7-8. Under Rule 403, courts “may exclude relevant evidence if its 14 probative value is substantially outweighed by…unfair prejudice.” Fed. R. Evid. 403. Here, the 15 Court finds that the prejudicial effect of Mr. Diaz’s testimony does not outweigh the probative value 16 of Mr. Diaz testifying to the institutional context of the prison. Further, this Court has already 17 prohibited Mr. Diaz from making explicit credibility determinations. 18 Fourth, plaintiff argues that the Court should disqualify Mr. Diaz “because his opinions 19 exhibit extraordinary bias and are therefore unduly prejudicial.” Dkt. No. 86 at 9-10. Specifically, 20 plaintiff takes issue with Diaz’s comments during his deposition that he does not “know any female 21 correctional officers…who would willingly do anything that was described in this type of 22 allegation” and that there would be “zero tolerance” “by the black inmate population” “for any white 23 female to conduct a clothed body search.” Id.; see Dkt. No. 87-3 at 6, 11-12 (“Diaz Deposition”). 24 Defendants respond that Mr. Diaz is not applying stereotypes but is instead “describing patterns he 25 has personally observed” based on “27 years of professional experience investigating thousands of 26 incidents at a maximum-security male prison.” Dkt. No. 90 at 8-9. Although the Court finds that 27 Mr. Diaz is allowed to testify, the Court orders that Mr. Diaz is not allowed to use generalities to ] As explained above, the motion to exclude testimony from Mr. Diaz is GRANTED in part 2 |} and DENIED in part. 3 4 CONCLUSION 5 The parties’ Daubert motions are resolved as follows: The motions to exclude the reports and 6 offered testimony of experts Goodall and Diaz are DENIED in part and GRANTED in part, as explained 7 || above. 8 9 IT IS SO ORDERED. 10 || Dated: April 3, 2026 11 SUSAN ILLSTON 12 United States District Judge
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