Rodriguez v. City of Austin

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

MODESTO RODRIGUEZ; § § Plaintiff, § § v. § NO. 1:21-CV-1087-RP § CITY OF AUSTIN and JOHN § DOES; § § Defendants. §

O R D E R Before the Court is Plaintiff’s Motion to Exclude, or in the Alternative, Limit Proposed Opinions and Testimony of Craig Miller, Dkt. 35, and all related respons- es and replies. The District Court referred the motion to the undersigned Magis- trate Judge for disposition pursuant to 28 U.S.C. § 636(b)(1)(A), Fed. R. Civ. P. 72, and Rule 1(c) of Appendix C of the Local Rules. I. BACKGROUND This is a federal civil rights cause of action, brought by Modesto Rodriguez al- leging excessive force against John Doe officers and the City of Austin for injuries he sustained while participating in a protest on May 30, 2020. Craig Miller is a for- mer Deputy Chief of Police for the Dallas Police Department and Chief of Police as Dallas ISD. Dkt. 35-1. He has been retained by the City to testify about the use of force involved in the May 30, 2020, incident. Rodriguez moves to exclude Miller, arguing his opinions are inadmissible and that he is not qualified to render them. Dkt. 35. Rodriguez identifies four subject areas for limitation and/or exclusion: (1) the quality of Austin police training; (2) disputed facts allegedly outside Miller’s personal knowledge and aera of exper- tise; (3) “force science principles”; and (4) attempts to render and legal conclusions for the jury. The City accedes that Miller will not testify as to the latter two subject

areas. Accordingly, the undersigned addresses only the first two. II. LEGAL STANDARD Federal Rule of Evidence 702 provides the standard for determining the ad- missibility of expert testimony. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597- 98 (1993). Rule 702 provides: A witness who is qualified as an expert by knowledge, experience, training, or education may testify in the form of an opinion or other- wise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to de- termine a fact in issue;

(b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Under Daubert, a trial court acts as a “gatekeeper,” making a “preliminary assessment of whether the reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93; see also Kumho Tire v. Carmichael, 526 U.S. 137, 147 (1999); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243- 44 (5th Cir. 2002). Daubert and its principles apply to both scientific and non-scientific expert testimony. Kumho Tire, 526 U.S. at 147. Experts need not be highly qualified to testify, and differences in expertise go to the weight of the testi- mony, rather than admissibility. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009). Nonetheless, courts need not admit testimony that is based purely on the unsup- ported assertions of the expert. Gen. Elec. Co. v. Joinder, 522 U.S. 136, 146 (1997);

Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). In addition to being qualified, an expert’s methodology for developing the ba- sis of her opinion must be reliable. Daubert, 509 U.S. at 592-93; Moore, 151 F.3d at 276. “The expert’s assurances that he [or she] has utilized generally accepted scien- tific methodology is insufficient.” Moore, 151 F.3d at 276. Even if the expert is quali- fied and the basis of his or her opinion is reliable, the underlying methodology must

have also been correctly applied to the case’s particular facts in order for the ex- pert’s testimony to be relevant. Daubert, 509 U.S. at 593; Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). The party proffering expert testimo- ny has the burden of establishing that the challenged testimony is admissible. Fed. R. Evid. 104(a). The proponent does not have to demonstrate that the testimony is correct, only that the expert is qualified and that the testimony is relevant and reli- able. Moore, 151 F.3d at 276.

“As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the [trier of fact’s] consideration.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987). “Vigorous cross-examination, presentation of con- trary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. III. ANALYSIS A. Miller’s Opinions Regarding Quality of APD Training Rodriguez takes issues with two of Miller’s opinions regarding the quality of

Austin Police Department officer training: “The Adequacy of APD Officer Training”; and “The Austin Police Department Is Very Progressive in Training Officers in Working with The Deaf Community.” Dkt. 49-3, at 9, 16. Rodriguez complains that Miller’s opinions lack objectivity, and that he compliments the Austin Police Acad- emy and the quality of Austin Police Department training without analysis or com- parison to other similar entities. Rodriguez moves to exclude Miller’s testimony as

the City has not established he is an expert on police training academies and that his testimony is not reliable. Dkt. 35. Particularly, Rodriguez complains about Miller’s descriptions of the Academy as “exceptional,” “outstanding,” “very thorough,” “very advanced and professional,” and “one of the finest police training academies in the United States.” Dkt. 35-2, at 75:25-77:7; 35-3. Additionally, Rodriguez complains of Miller’s description of the Austin Police Department as “progressive” in training officers in working with the

deaf community. Dkt. 35-2, at 157:13-17. Rodriguez asserts these opinions are un- substantiated and made without reliable methodology. Further, Rodriguez argues, Miller is not an expert in police training academies, has spent two hours at the Aus- tin Police Academy—never attended a class or reviewed testing, has only attended the Dallas Police Academy, and has never audited an academy; therefore, he lacks a sufficient foundation of knowledge to render these opinions. Dkt. 35-2, at 77:24- 78:3, 78:24-79:1; 85:20, 79:2-9, 81:11-16, 82:2-10. Additionally, Rodriguez argues that Miller improperly bases his conclusions on the quality of a police academy on the police force’s policies and procedures manuals. Dkt. 35-2, at 80:9-24

The City responds that Miller’s opinions on the quality of the City of Austin Police training is admissible. Dkt. 46. The City asserts that in his expert report, Miller compares Austin’s Academy to those in other police departments in Texas, including Dallas, Houston, San Antonio, along with departments in other cities and towns. Dkt. 46-2, at 55-56. The City asserts that Miller’s “exceptional” determina- tion rests on the fact that APD’s training provides twice as many training hours to

officers compared to that of smaller cities and towns, and requires officers go back through training and recertification every two years. Id., at 49, 77-87. Additionally, the City argues that Miller’s determination that APD is “progressive” is in part based on training officers through real life simulations and following Lexipol and other national recommendations and standards. Id., at 86-88. The City also argues that Miller visited APD’s Academy twice, including for six hours where he observed training and spoke with staff and students. Id., at 46-47, 81. Additionally, the City

asserts Miller attended the Dallas training academy and visited San Antonio’s training academy. Id., at 78-80. Rodriguez responds that time spent is not a suffi- cient basis for evaluating training. Dkt. 50, at 2. A district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a particular sub- ject. Wilson v. Woods, 163 F.3d 935 (5th Cir. 1999). However, an expert witness need not be highly credentialed or qualified to offer an expert opinion to the fact- finder. Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199-200 (5th Cir. 2016). “Rule 702 does not mandate that an expert be highly qualified in order to tes-

tify about a given issue. Differences in expertise bear chiefly on the weight to be as- signed to the testimony by the trier of fact, not its admissibility.” Huss, 571 F.3d at 452. Miller, who served in law enforcement for over thirty years, testified that he analyzed the quality of the APD academy based on comparing it to other academies, and assessed it as “exceptional” based on the hours spent training and the require- ment that officers be recertified every two years. Dkt. 46-2, at 85-87. Additionally,

he identified the APD Academy as “progressive” because APD attempted to meet and/or exceed the national standards for best practices. Id., at 87-89. The undersigned finds that Miller’s opinions on these topics should not be ex- cluded. “To be admissible under Rule 702, the court must find that the evidence is both relevant and reliable.” United States v. Ebron, 683 F.3d 105, 139 (5th Cir. 2012) (citing United States v. Valencia, 600 F.3d 389, 423 (5th Cir. 2010)). The reli- ability inquiry requires the Court to assess whether the expert’s reasoning and

methodology underlying the testimony are valid. See Daubert, 509 U.S. at 593. “[F]undamentally unsupported” opinions “offer[ ] no expert assistance to the [trier of fact]” and should be excluded. Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005). However, the trial court has broad latitude in determining the admissibility of expert testimony. Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). In this case, Miller based his opinions of the quality of APD’s academy and training based upon his comparison to other academies and national norms. Thus, Rodriguez’s attack on Miller’s expertise relates to the bases and sources of his opin-

ion, which affects the weight to be assigned that opinion rather than its admissibil- ity. Viterbo, 826 F.2d at 422. Any issue with Miller’s opinions on this topic is better addressed through the adversary process and not through exclusion. Daubert, 509 U.S. at 596; Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 625 (5th Cir. 2018) (“[T]his battle should be fought with the conventional weapons of cross- examination and competing testimony — not the nuclear option of exclusion.”).

B. Miller’s Reliance on Facts Outside His Personal Knowledge Rodriguez also complains that in his opinion and testimony, Miller recites “facts” to the jury outside of his personal knowledge. Rodriguez argues that pages four through seven of his report are replete with material Miller cannot be permit- ted to convey to the jury. Dkt. 35-3, at 4-7. The City responds that an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Dkt. 46, at 5 (citing Fed. R. Evid. 703). The City argues that

Miller based his opinions on the Complaint, reports and statements of police offic- ers, as well as videos of objects being thrown by protesters. Dkt. 46-2, at 117-119. “[A]n expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 592. “Experts are permitted to rely on assumptions when reaching their opinions,” but “those assumptions must have some factual basis in the record and an underlying rationale.” Jacked Up, L.L.C. v. Sara Lee Corp., 291 F. Supp. 3d 795, 806-07 (5th Cir. 2020). “But there is no requirement that an expert derive his opinion from firsthand knowledge or observation.” Id. at 801.

Rodriguez complains about Miller’s statements relating to the assumption that Rodriguez was shot while he intentionally threw a bottle toward officers. Dkt. 35-2, at 140:6-12; Dkt. 35-3, at ¶ 20. The City responds that the timing of the inci- dent, including when Rodriguez was shot in relation to when he intentionally threw an object at police, is based upon video evidence of the events. The undersigned finds that Miller’s testimony is not a forensic analysis of events, but a statement of

what occurred in the video he reviewed, and should not be excluded. Rodriguez complains that Miller improperly testified that protesters threw rocks, water bottles, bricks, and smoke cannisters at the officers. Dkt. 35-2, at 121:15-25; Dkt. 35-3, at ¶¶ 17, 20, 37. Miller testified that he learned information about what objects were thrown by protesters from officer statements he read in re- lation to other cases. Dkt. 46-2, at 117-19. In his report, Miller also refers to the fact that he reviewed “multiple Assault on Peace Officer offenses (2020-1520375)

involving known and unknown suspects who were throwing items at officers.” Dkt. 46-3, at 13. Federal Rule of Evidence 703 “permit[s] an expert witness to base his opinion on ‘facts or data ... that the expert has been made aware of or personally ob- served’ and to opine [and based his opinion] on inadmissible evidence if ‘experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.’” Taxotere (Docetaxel) Prod. Liab. Litig., 26 F.4th 256, 269 & n.1 (5th Cir. 2022). Miller relied on witness statements and video in forming his opinion. His statement regarding projectiles thrown by protesters should not be ex- cluded.

Rodriguez also complains about Miller’s testimony that Rodriguez was “pro- testing with a group of his friends,” and “standing with his friends” before the inci- dent. Dkt. 35-2, at 6. He also comments as to the location where Rodriguez was ini- tially observed. Id. These statements were alleged in Rodriguez’s Complaint, and therefore were properly considered as a basis for Miller’s opinion. Rodriguez next complains that Miller offers several conclusions about the of-

ficers involved in the incident that are without basis and cannot be presented to the jury. For instance, Miller asserts the involved officers were in fear for their safety. Dkt. 46-3, at 15. He additionally states none of the officers had ever seen this type of crowd before. Id., at 12. The City asserts Miller reviewed numerous reports from APD officers making statements to this effect. Dkt. 46-5, Dkt. 46-6, Dkt. 46-7, Dkt. 46-8. Miller states, “[a]fter reviewing the video and documents I have been supplied, it is clear that the actions of the crowd on May 31, 2020, had never been seen or ex-

perienced by officers working the incident.” Dkt. 46-3, at 15. Accordingly, because he bases his statements on the record, his testimony on this issue should not be ex- cluded under Daubert. Rodriguez also complains that Miller states that the involved officers did not know deaf protestors were present. Dkt. 35-2, at 104:18-106:21. “As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration.” Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004). “[T]he trial court’s role as gatekeeper is not intended to serve as

a replacement for the adversary system.” United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cnty., State of Miss., 80 F.3d 1074, 1078 (5th Cir. 1996). Opposing counsel is free to cross-examine Miller about the factual bases for Miller’s statement that officers were unaware that deaf protesters were present. In addition, Rodriguez asserts that Miller cannot draw the conclusion for the jury that “no officer has been identified in this incident,” because Rodriguez’s expert

has identified officers. Dkt. 35-3. Miller confirmed during his deposition that he will not opine about who shot at Rodriguez. Dkt. 35-2, at 93:23-94:7. Thus any testimony on this issue need not be excluded, as it will be addressed by opposing evidence pre- sented at trial. Finally, Rodriguez asserts that Miller should not be permitted to opine to the jury as to the protest scene around the country in May 2020, such as whether pro- testors or officers had been injured in other cities, as he relies on a New York Times

article. Dkt. 35-2, at 108:15-109:3, 112:8-13; Dkt. 35-3. As long as the requirements of Federal Rule of Evidence 703 are met: The number of sources on which an expert may reasonably rely “is vir- tually infinite,” and such sources include interviews, reports prepared by third parties, scientific theories or test results, clinical and other studies, technical publications, business, financial, and accounting rec- ords, economic statistics, opinions of other experts, and general knowledge or experience. Jack B. Weinstein and Margaret A. Berger, 4 Weinstein’s Federal Evidence § 703.04[3], at 703-15 to 703-20 (2d ed. 2005). The undersigned finds Miller’s testi- mony should not be excluded simply because he relies on a newspaper article. Plaintiff's Opposed Motion to Exclude, or in the Alternative, Limit proposed opinions and Testimony of Craig Miller, Dkt. 35, is DENIED. SIGNED September 14, 2023.

DUSTIN M. HOWELL UNITED STATES MAGISTRATE JUDGE