The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are the motions in limine filed by Plaintiff (Doc. # 82-83) and Defendants (Doc. # 76-81).
This case is based upon the events of October 18, 2006, when Plaintiff, a special agent of the Bureau of Immigration and Customs Enforcement, was conducting surveillance on a suspected alien smuggling operation. On that night, Plaintiff alleges that Defendant officers Clark, Armstrong and Martinez stopped him and used excessive force; that Clark, Armstrong, Martinez, Guthrie and Fobes improperly detained and falsely arrested him; that these Defendants assaulted him, battered him, intentionally inflicted emotional distress, and by their actions violated his Federal and State constitutional rights. The following claims remain for trial: (1) 42 U.S.C. § 1983 (false arrest/unreasonable detention); (2) 42 U.S.C. § 1983 (excessive force); (3) assault and battery; (4) intentional infliction of emotional distress; (5) violation of California Civil Code § 52.1; and (6) negligence. (Doc. # 113 at 2-3).
On December 11, 2009, Plaintiff filed two motions in limine (Doc. # 82-83), and Defendants filed six motions in limine (Doc. # 76-81). On December 18, 2009, the parties filed their responses to the motions in limine. (Doc. # 86-92). On February 17, 2010, the Court heard oral argument on the motions in limine.
A final pretrial conference is set for February 22, 2010, at 3:00 p.m. The jury trial in this matter shall begin on February 23, 2010, at 9:00 a.m. (Doc. # 74 at 1, 3).
A. Motions in Limine to Exclude Expert Testimony
An expert witness may testify at trial if the expert's "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. A witness must be "qualified as an expert by knowledge, skill, experience, training, or education" and may testify "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Id.; see also Kumho Tire v. Carmichael, 526 U.S. 137, 141, 148-49 (1999). Expert testimony is liberally admitted under the Federal Rules. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993) (noting that Rule 702 is part of the "liberal thrust of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony"); see also Fed. R. Evid. 702 advisory committee notes to 2000 amendments ("[R]ejection of expert testimony is the exception rather than the rule.").
Expert testimony on police practices and the use of force has generally been found to be admissible in cases involving allegations of police misconduct. See, e.g., Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (en banc); Larez v. City of Los Angeles, 946 F.2d 630, 635, 647 (9th Cir. 1991); Davis v. Mason County, 927 F.2d 1473, 1484-85 (9th Cir. 1991). However, the "trial judge must ensure that any and all [expert] testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589. "Concerning the reliability of non-scientific testimony ..., the Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it." Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (citations omitted). In such cases, the trial court's gatekeeping role under Daubert involves probing the expert's knowledge and experience. See id. at 1018.
"It is the proponent of the expert who has the burden of proving admissibility." Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996). Admissibility of the expert's proposed testimony must be established by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10 (citation omitted).
2. Motion in Limine to Exclude the Testimony of (1) William Lewinski, (2) Dale Bourgeois, (3) Elmer Pellegrino, and (4) Mark Kalish Plaintiff moves for the exclusion of four expert witnesses designated by Defendants.
Dr. Lewinski is the director of the Force Science Research Center at Minnesota State University, Mankato, and has a Ph.D in Police Psychology from the Union Institute and University. According to his report, Dr. Lewinski is "an expert on action/reaction, perception, judgment and memory in force and lethal force encounters." (Doc. # 83-2 at 2). Dr. Lewinski's report consists of five paragraphs: in paragraphs one, four and five, he states opinions which include the conclusion that Plaintiff "act[ed] in a fashion that was atypical for a fellow law enforcement professional to behave" (id. at 3-4); in paragraph two, he states opinions related to "incidents of impersonation of a law enforcement officer by non-law enforcement persons" (id.); and in paragraph three, he states opinions related to the speed with which a "subject ... can pull that gun and fire" (id. at 4).
Plaintiff contends that Dr. Lewinski is not qualified to render an expert opinion in this case because his credentials are insufficient, and he has never held a position in law enforcement. Plaintiff contends that Dr. Lewinski's opinions are either outside his range of expertise, or they involve irrelevant matters.
Defendants contend that Plaintiff has misstated Dr. Lewinski's credentials, and his testimony is relevant because it "relates to the context of Plaintiff's behavior and the appropriateness of Defendant Officers' response to Plaintiff's conduct, which is plainly at issue in this case." (Doc. # 87 at 8).
After reviewing the submissions of the parties, the Court DENIES in part and GRANTS in part the Motion in Limine to exclude William Lewinski. (Doc. # 83). The Court concludes that Dr. Lewinski is qualified to testify as to portions of paragraph three of his report concerning the speed with which a "subject ... can pull that gun and fire." (Doc. # 83-2 at 4). The Court denies Plaintiff's relevancy objection to this testimony without prejudice to renew at trial. With respect to the remainder of Dr. Lewinski's opinions, the Court finds that Defendants have failed to demonstrate that these opinions are within the range of Dr. Lewinski's expertise and are sufficiently reliable to satisfy Rule 702. This finding is without prejudice to Defendants examining Dr. Lewinski outside the presence of the jury to establish an adequate foundation for his opinions pursuant to the standards of Rule 702.
Bourgeois is a former Sergeant with the Chula Vista Police Department who is being offered as a "police expert ... [on] undercover procedures, appropriate disclosure by an undercover officer and the use of a taser and ...