United States District Court, S.D. Florida
ORDER GRANTING DEFENDANTS' MOTION TO EXCLUDE
TESTIMONY OF PHILIP P. HAYDEN
I. COHN, United States District Judge
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”). 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.
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. 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”)).
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
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
applying Rule 702,  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.
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)).
Mr. Hayden is Not Qualified to Opine on Who Shot Each
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.”). 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.
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
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). 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.
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
Q: What's the difference between bullet path and bullet
A: Bullet path is the way the bullet flies from the end of
the barrel of the weapon to the target.
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.
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