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Mamani v. Sanchez Berzain

United States District Court, S.D. Florida

February 28, 2018

ELOY ROJAS MAMANI, et al., Plaintiffs,


          JAMES I. COHN United States District Judges.

         THIS CAUSE is before the Court upon Defendants' Amended Motion to Exclude the Testimony of Allen Borrelli [DE 362 in No. 07-22459; DE 339 in 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 in part and denied in part.


         Plaintiffs proffer Allen Borrelli as a military analyst with expertise in investigating and analyzing military structures in the context of violence against civilians during armed conflict. See DE 379 at 1; Defendants' Ex. A ¶ 1 (Opening Expert Report of Allen Borrelli (“Borrelli Report”)).[3] Mr. Borrelli has nearly two decades of experience investigating international criminal law and human rights violations, including fourteen years as an analyst and investigator for the International Criminal Tribunal for the Former Yugoslavia. Borrelli Report ¶¶ 11-12.

         Plaintiffs seek to have Mr. Borrelli give an opinion on whether the Defendants in these cases-the former President of Bolivia, Gonzalo Daniel Sánchez de Lozada Sánchez Bustamante, and the former Minister of Defense of Bolivia, José Carlos Sánchez Berzaín-are responsible, under the doctrine of command responsibility, for the allegedly improper use of force by the Bolivian Armed Forces against Bolivian civilians, including the eight decedents in these cases, in September and October 2003. See id. ¶ 10. Specifically, Mr. Borrelli opines on three areas: (1) command responsibility and the de jure and de facto roles of Defendants during the events at issue in these cases; (2) the military as an institution in Bolivia; and (3) an evaluation of the Bolivian military's violence against civilians in September and October 2003, namely, whether there was a deliberate pattern of military violence and, if so, whether that violence was justified. Id. ¶ 3.

         Defendants move to exclude Mr. Borrelli's testimony as inadmissible under Federal Rule of Evidence 702, as interpreted by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. Defendants make three primary arguments. First, Defendants contend that Mr. Borrelli is not qualified to opine on the structure of the Bolivian military or, more specifically, Defendants' roles within that structure. Second, Defendants say that Mr. Borrelli's opinions are unreliable because they are based on the opinions of another of Plaintiffs' proffered experts, Philip P. Hayden. Defendants also moved to exclude Mr. Hayden's testimony, and the Court granted that motion in a separate order. See DE 422. And third, Defendants assert that Mr. Borrelli does nothing more than offer legal conclusions in the guise of expert opinion.


         In applying Rule 702, [4] 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)).

         Finally, even expert testimony that passes muster under Rule 702 may be excluded if irrelevant or if “its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403; see Allison v. McGhan Med. Corp., 184 F.3d 1300, 1309-10 (11th Cir. 1999). Because “expert testimony may be assigned talismanic significance in the eyes of lay jurors, ” a district court “must take care to weigh the value of such evidence against its potential to mislead or confuse.” United States v. Frazier, 387 F.3d 1244, 1263 (11th Cir. 2004) (en banc).



         An expert witness must be qualified to testify on the subject matter he intends to address. Fed.R.Evid. 702; City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 562-63 (11th Cir. 1998). “Determining whether a witness is qualified to testify as an expert requires the trial court to examine the credentials of the proposed expert in light of the subject matter of the proposed testimony.” Clena Invs., Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012) (internal quotation marks omitted). This is not a stringent inquiry; so long as the expert is minimally qualified, any objections to the degree of his expertise go to credibility and weight, not admissibility. Id.

         Defendants argue that Mr. Borrelli is not qualified to testify about the Bolivian military structure and Defendants' roles within it. They point to deposition testimony in which Mr. Borrelli admitted that, before his work on these cases, he did not have specific knowledge about the Bolivian military or its chain of command. See Defendants' Ex. B (Borrelli Deposition Transcript at 38:17-39:25 (“Borrelli Dep. Tr.”)). Plaintiffs counter that “Mr. Borrelli's comparative experience qualifies him to identify facts that show that the response by the Bolivian Armed Forces was inconsistent with expected military behavior in similar situations.” DE 379 at 17. And Plaintiffs point to cases permitting an expert witness to “testify regarding narrow sub-topics within his broader expertise-notwithstanding a lack of specific experience with the narrower area-as long as his testimony would still assist a trier of fact.” Remington v. Newbridge Secs. Corp., 2014 WL 505153, at *4 (S.D. Fla. Feb. 7, 2014).

         The Court agrees with Plaintiffs. Mr. Borrelli spent nearly two decades as an analyst investigating militaries throughout the world. See Borrelli Report ¶¶ 11-14. Once engaged in these cases, Mr. Borrelli applied his skills to familiarize himself with the Bolivian military, its structures and chain of command, and Defendants' roles within it. Mr. Borrelli's expertise on military structures will help the trier of fact understand the significance of the evidence as it pertains to military structure and chain of command.[5]

         Accordingly, under Federal Rule of Evidence 702, based upon Mr. Borrelli's knowledge, experience, and education, the Court finds that he is qualified as a military analyst to render opinions within the field of military structures as they relate to armed conflicts.


         Plaintiffs sought to have Mr. Hayden opine that each decedent was intentionally shot and killed by the Bolivian military. Using Mr. Hayden's opinions as a foundation, Mr. Borrelli ties Defendants to these deaths. The Court, however, excluded Mr. Hayden's testimony in its entirety on a number of grounds. See DE 422. Defendants assert that if Mr. Hayden's opinions are inadmissible, then, as a consequence of his reliance on Mr. Hayden, Mr. Borrelli's testimony must likewise be excluded. And it is clear that Mr. Borrelli indeed relies to an extent on Mr. Hayden. For instance, Mr. Borrelli states:

Having reviewed the evidence available to me, including specifically the findings of Phillip Hayden in his expert report, it is evident to me that the Bolivian military, under the command and control of the Defendants, engaged Bolivian civilians, including family members of the Plaintiffs with the intent to cause substantial bodily harm, and that the ensuing deaths were not the result of accident or provocation, but instead the result of a concerted effort by the military to target the civilian population with lethal force. The use of military force, particularly against the killed family members of the Plaintiffs, was indiscriminate and not justified by any military doctrine.

Borrelli Report ¶ 9 (emphasis added); see also Borrelli Dep. Tr. at 136:13-16 (“I believe in the conclusions by the expert Hayden and that the killings were targeted and specific in a sense that, you know, there was intent behind the actions.”). But, as only a limited portion of Mr. Borrelli's opinions rely upon Mr. Hayden, ...

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