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Mamani v. Sanchez Berzain

United States District Court, S.D. Florida

February 26, 2018

ELOY ROJAS MAMANI, et al., Plaintiffs,


          JAMES I. COHN, United States District Judge

         THIS CAUSE is before the Court upon Defendants' Motion to Exclude the Testimony of Philip P. Hayden [DE 337 in Case No. 07-22459; DE 314 in Case No. 08-21063] (“Motion”).[1] The Court has considered the Motion, Plaintiffs' Response and Defendants' Reply, the parties' related submissions, and the record in these cases, and is otherwise advised in the premises. For the reasons stated below, Defendants' Motion is granted.


         According to Plaintiffs, Philip P. Hayden is to testify as “an expert in the use of force.” DE 352 at 1. But as a “use of force” expert, Mr. Hayden is not opining on, for example, whether Defendants' use of military force was disproportionate or excessive under the circumstances.[3] Rather, Plaintiffs explain that “[a]s an expert in the use of force, Mr. Hayden analyzes how, and by whom, force was used in a given situation.” Id. at 4. Based on his analysis of the shootings at issue in these cases, Mr. Hayden concludes that each of the eight decedents were intentionally shot and killed by members of the Bolivian military. See Defendants' Ex. 3 ¶ 193 (Opening Expert Report of Philip Hayden (“Hayden Report”)).[4]

         Defendants move to exclude Mr. Hayden's testimony for failing to satisfy the standards set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. First, Defendants argue that Mr. Hayden is unqualified to offer an opinion on how the decedents were shot and by whom because he is not qualified to assess bullet point of origin or trajectory, reconstruct a shooting scene, or determine a shooter's intent. DE 337-1 at 4-8. Second, Defendants claim that Mr. Hayden's opinions are unreliable because he applies no discernable methodology, improperly parrots the opinions of Bolivian ballistics expert José Goitia Durán, and because his opinions are results-driven. Id. at 8-20. And third, Defendants contend that Mr. Hayden's opinions are unhelpful to the trier of fact because, inter alia, the evidence that he reviewed to form his opinions would be intelligible to a lay juror and Plaintiffs concede that Mr. Hayden applied no scientific expertise to this evidence. Id. at 20; DE 363 at 10-11.

         Plaintiffs respond that Mr. Hayden's experience qualifies him as an expert on the use of force and permits him to testify about narrow “subtopics” within his broader use of force expertise, which apparently includes bullet path reconstruction and whether a shooting has the characteristics of an intentional killing. DE 352 at 3-7. Plaintiffs also argue, inter alia, that Defendants' critiques of Mr. Hayden's methodology miss the mark because they are “aimed at a scientific expert who might be expected to provide calculations and measurements” but “Mr. Hayden is not such an expert.” Id. at 1, 8-12. Rather, Plaintiffs assert that Mr. Hayden's opinions are based on his experience, and that the methodology he used to arrive at these opinions is analogous to the methodology he used as a FBI agent. Id. at 9. Finally, Plaintiffs also argue that Mr. Hayden's testimony is helpful to the trier of fact because he is able to use his experience to link together evidence, such as ballistics and autopsy reports, in a way that a lay juror could not. Id. at 19-20.


         In applying Rule 702, [5] district courts are charged with “the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. This critical gatekeeping function “ensure[s] that speculative, unreliable expert testimony does not reach the jury under the mantle of reliability that accompanies the appellation ‘expert testimony.'” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (some internal quotation marks omitted). To perform this gatekeeping function, district courts engage in a “rigorous inquiry” to determine whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Id. at 1291-92. “The party offering the expert has the burden of satisfying each of these three elements by a preponderance of the evidence.” Id. at 1292.

         In addressing the reliability prong of the Daubert analysis, the Supreme Court has identified four factors that the district courts should consider: (1) whether the expert's methodology has been tested or is capable of being tested; (2) whether the theory or technique used by the expert has been subjected to peer review and publication; (3) whether there is a known or potential error rate of the methodology; and (4) whether the technique has been generally accepted in the relevant scientific community. United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir. 2013) (citing Daubert, 509 U.S. at 593-94). Yet, “these factors are not exhaustive and are intended to be applied in a ‘flexible' manner.” Id. (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)).


         I. Mr. Hayden is Not Qualified to Opine on Who Shot Each Decedent

         Although Plaintiffs seek to cast Mr. Hayden as a “use of force” expert, he is plainly not offering a use of force opinion except in the broadest, most literal sense of the term. That is, technically, he does opine on who used force against the decedents. But typically, use of force experts assess the reasonableness of a known individual's- usually a law enforcement officer's-use of force. See, e.g., Samples v. City of Atlanta, 916 F.2d 1548, 1551 (11th Cir. 1990) (holding testimony of “use of force” expert admissible where defendant “establish[ed] the witness's extensive qualifications as an expert in the field of the proper use of force by law enforcement officers” and testimony went to reasonableness of officer's actions); Ayers v. Harrison, 650 F. App'x 709, 719 (11th Cir. 2016) (per curiam) (rejecting contention that district court improperly permitted “use of force experts” to instruct the jury on whether law enforcement officer defendant violated the Fourth Amendment); Flint v. Scott, 2018 WL 327166, at *1 (M.D. Ga. Jan. 8, 2018) (“Plaintiff's use of force expert opines that Defendant used excessive force when he shot and killed Plaintiff's son.”). Mr. Hayden admits that this is what he has done previously as a use of force expert. See Defendants Exhibit 1 at 10:10-14 (Philip P. Hayden Deposition Transcript (“Hayden Dep. Tr.”)) (“Q: When you say you're an expert in the use of force scenarios, I understand you investigated previously whether an officer's use of force was reasonable under the circumstances? A: Yes.”).[6] But this is not the type of opinion that Plaintiffs seek to have Mr. Hayden offer in these cases. Rather, he opines on where the bullets that struck the decedents came from, who fired the shots, and whether they were intentional. Despite what Plaintiffs label these opinions, it is clear that the first two are opinions based on ballistics and bullet trajectories. It is equally clear that Mr. Hayden is unqualified to render opinions of this nature, or to determine a shooter's intent.

         Mr. Hayden served in the U.S. Army from 1964 through 1968 and received numerous awards for his service in Vietnam. Hayden Report ¶ 7. During his military service, he trained as a sniper. Id. Mr. Hayden joined the FBI as a Special Agent in 1973 and retired as a Supervisory Special Agent in 1999. Id. ¶¶ 5-6. In the FBI, he was certified as an instructor in, inter alia, tactical concepts for law enforcement officers, special weapons and tactics (SWAT), firearms, and sniper training. Id. ¶ 6. He also worked as part of teams-typically comprising approximately ten agents-investigating shootings, where his role included canvasing for witnesses and drawing up schematics of the scene, but not performing any ballistics assessments or trajectory calculations since Mr. Hayden does not do those types of calculations. See Hayden Dep. Tr. at 10:22-20:18, 58:11-13. Since leaving the FBI, he has worked as a private law enforcement consultant. Hayden Report ¶ 2.

         Notably, approximately three years ago, based on the same qualifications set forth above, Mr. Hayden was found unqualified “to provide an expert opinion on ballistics or bullet trajectories . . . [or] reconstructing the scene of [a] shooting.” Lee v. City of Richmond, 2014 WL 5092715, at *6 (E.D. Va. Sept. 30, 2014).[7] The Court noted that Mr. Hayden “admitted that he was not an expert in ballistics or bullet trajectories . . . and that he does not have any specialized training or education respecting to shooting scene reconstruction.” Id. at *5. Mr. Hayden points to no new training that he has received in the past three years that would now qualify him to testify as an expert in these areas. Rather, Plaintiffs argue that the exclusion of Mr. Hayden's testimony in Lee “bear[s] little relevance to his proffered testimony in this case” because they claim that in Lee, “Mr. Hayden was asked to perform a very different analysis than here.” DE 352 at 1, 5. Plaintiffs claim that the critical difference is that in Lee, “Mr. Hayden was asked to assist with trajectory measurements and calculations and . . . opine directly on bullet trajectory, ” whereas here, he “reach[es] a conclusion as to the use of force exhibited against each victim” by assessing the “‘general' path taken by the bullets . . . in conjunction with the rest of the evidence.” Id. at 5-6.

         Essentially, Plaintiffs argue that Mr. Hayden is qualified to opine on where each bullet that struck a decedent was fired from because these opinions are based not on the reconstruction of a bullet's trajectory to determine its point of origin, but on Mr. Hayden's broad “use of force” expertise, which permits Mr. Hayden to opine on “relevant subtopics” within that general area of expertise, including “bullet paths.” The Court agrees with Defendants that this argument “finds no support in either law or logic.” DE 363 at 2. First, it hinges on the existence of a meaningful distinction between “bullet trajectory” and “bullet path.” The Court is not convinced that such a distinction can be drawn, at least in these cases given how loosely Plaintiffs have used the term “bullet path.” During his deposition, Mr. Hayden was directly asked to distinguish these terms, and his answer provides little clarity:

Q: What's the difference between bullet path and bullet trajectory?
A: Bullet path is the way the bullet flies from the end of the barrel of the weapon to the target.
Q: Okay.
A: Bullet trajectory you're dealing with more factors in the bullet itself, the coefficiency of the bullet, and not only the drop, but the yaw in the bullet, the wiggle of the bullet. A lot of those different factors.
. . . .
Q: Are you offering expert opinion in the area of bullet path in this case?
A. What I'm doing is I'm giving an opinion on what-what would happen as an expert in use of force dealing with bullet path.

Hayden Dep. Tr. at 9:7-10:2.

         It is clear that the only reason Plaintiffs seek to frame Mr. Hayden's opinions as involving bullet path as opposed to trajectory is because in Lee, while the court found Mr. Hayden unqualified to render an opinion on bullet trajectory, the court did permit him to testify about the “general path taken by the bullets.” 2014 WL 5092715, at *7. But the Lee court strictly conditioned its admission of Mr. Hayden's testimony on “bullet path, ” holding that such testimony was only permissible “assuming that there is a foundation laid in other evidence to show that [the police] fired bullets at [the decedent], what the caliber of the weapons were, [and] where rounds of that caliber were recovered.” Id. Moreover, the Lee court held that Mr. Hayden was only qualified to testify regarding bullet path because of his “placement of [trajectory] rods, ” and more specifically, because of “the instruction that he received from another expert about where and how to place the rods.” Id. Thus, Lee does not support Mr. Hayden's competence to opine on “bullet path” where, as here, there is no “foundation laid in other ...

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