United States District Court, S.D. Florida
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' AMENDED MOTION TO EXCLUDE TESTIMONY OF ALLEN
I. COHN United States District Judges.
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”). 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.
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”)). 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.
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.
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.
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)).
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).
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
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).
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.
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.
RELIANCE ON MR. HAYDEN'S INADMISSIBLE OPINIONS
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,