1

 The Motion was originally filed solely by the City and County of Denver. (ECF

No. 72.) However, Defendants Nixon and Devine later joined in the Motion. (ECF No.

79.)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-02394-WJM-CBS 

(Consolidated with Civil Action Nos. 11-cv-2395, 11-cv-2396 and 11-cv-2397)

ANA ALICIA ORTEGA,

KELLY BOREN,

KRISTAL CARILLO and

SHARELLE C. THOMAS,

Plaintiffs, 

v.

THE CITY AND COUNTY OF DENVER, a municipality,

OFFICER RICKY NIXON, in his individual and official capacity, and

OFFICER KEVIN DEVINE, in his individual and official capacity,

Defendants.

AMENDED ORDER DENYING DEFENDANTS’ MOTION PURSUANT TO 

FEDERAL RULE OF EVIDENCE 702

In this consolidated civil rights case, Plaintiffs Ann Alicia Ortega, Kelly Boren,

Kristal Carillo, and Sharelle Thomas (collectively “Plaintiffs”) bring claims against the

City and County of Denver and Officers Ricky Nixon and Kevin Devine (collectively

“Defendants”) arising out of an incident outside of the Denver Diner on July 11, 2009. 

(Compl. (ECF No. 2).) 

Before the Court is Defendants’1

 Motion Pursuant to Federal Rule of Evidence

702 (“Motion”). (ECF No. 72.) The Motion seeks an order precluding certain testimony

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of Plaintiffs’ proposed expert witness, Dan Montgomery. For the reasons set forth

below, the Motion is denied.

I. LEGAL STANDARD

A district court must act as a “gatekeeper” in admitting or excluding expert

testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission

of expert testimony is governed by Rule 702, which provides:

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise, 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.

Fed. R. Evid. 702. 

The proponent of the expert testimony bears the burden of proving the

foundational requirements of Rule 702 by a preponderance of the evidence. United

States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). 

II. ANALYSIS

To qualify as an expert, the witness must possess such “knowledge, skill,

experience, training, or education” in the particular field as to make it appear that his or

her opinion would rest on substantial foundation and would tend to aid the trier of fact in

its search for the truth. LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th

Cir. 2004). In the Motion, Defendants do not challenge Montgomery’s qualifications. 

Defendants acknowledge that Montgomery has been involved in law enforcement for

fifty years and was a police chief for twenty-five years. Thus, the Court has little

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difficulty concluding that Montgomery is qualified to serve as an expert witness on police

procedures. 

Instead of arguing about Montgomery’s qualifications, Defendants contend that

Montgomery’s testimony is not reliable because it is not based on repeatable methods

and principles. (ECF No. 72 at 3.) Defendants also argue that Montgomery’s testimony

would not assist the trier of fact; rather, Defendants contend that it would invade the

province of the jury as the finder of fact. (Id. at 4.) The Court will address each of these

arguments in turn below.

A. Reliability

In determining whether the proffered testimony is reliable, the Court assesses

whether the reasoning or methodology underlying the testimony is valid and whether

that reasoning or methodology can be properly applied to the facts in issue. See

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). The

Daubert Court listed four factors relevant to assessing reliability: (1) whether the theory

has been tested; (2) whether the theory has been subject to peer review and

publication; (3) the known or potential rate of error associated with the theory; and (4)

whether the theory has attained widespread or general acceptance. Id. at 592-94. 

Relying primarily on these four Daubert factors, Defendants challenge two

aspects of Montgomery’s proposed testimony: (1) opinions on police procedures; and

(2) opinions on internal affairs investigations and discipline. With respect to police

procedures, Defendants argue that Montgomery’s testimony is unreliable because,

during his deposition, he was “unable to describe any reliable, repeatable principles,

methods or standards upon which his expert opinions are based, other than merely

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noting his fifty years experience as a police officer.” (ECF No. 72 at 7.) Defendants

contend that Montgomery has admitted that his opinions have not been subjected to

any sort of testing, scrutinized through any peer review process, and that others looking

at the same facts may arrive at different conclusions. (Id. at 8.) With respect to internal

affairs investigations and discipline, Defendants contend that Montgomery’s opinions

are impermissible because they are “based solely and exclusively on his experience.” 

(ECF No. 72 at 11.) 

The Court finds that Defendants’ arguments do not form a basis for excluding the

challenged testimony. Defendants heavy reliance on the Daubert factors ignores later

Supreme Court precedent which acknowledged that, particularly in non-scientific expert

testimony, a different standard may apply. In Kumho Tire Co., Ltd. v. Carmichael, 526

U.S. 137 (1999), the Supreme Court emphasized that the four Daubert factors are not a

“definitive checklist or test” and that a court’s inquiry into reliability must be “tied to the

facts of a particular case.” Id. at 150. In some cases, “the relevant reliability concerns

may focus upon personal knowledge or experience,” rather than on the Daubert factors

and scientific foundations. Id.; see also Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235

(10th Cir. 2004). The Supreme Court held that a district court has “considerable leeway

in deciding in a particular case how to go about determining whether particular expert

testimony is reliable.” Kumho Tire, 526 U.S. at 152. 

The Court finds that Montgomery’s proposed testimony does not lend itself to the

Daubert factors as it is primarily based on his fifty years experience as a law

enforcement officer. Based on Kumho and its progeny, however, this does not make

the testimony inadmissible. As Plaintiffs point out, courts routinely admit expert

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testimony on police procedures in excessive force cases. In Zuchel v. City and County

of Denver, 997 F.2d 730 (10th Cir. 1993), the City argued that the district court had

improperly permitted an expert to give his opinion about the constitutionality of police

standards. Id. at 741. The Tenth Circuit held: “[c]ourts generally allow experts in this

area to state an opinion on whether the conduct at issue fell below accepted standards

in the field of law enforcement.” Id. at 742; see also Champion v. Outlook Nashville,

Inc., 380 F.3d 893, 908 (6th Cir. 2004) (allowing testimony that an officer’s conduct fell

below recognized police standards governing excessive force); Kopf v. Skyrm, 993 F.2d

374, 379 (4th Cir. 1993) (same); Richman v. Sheahan, 415 F. Supp. 2d 929, 940 (N.D.

Ill. 2006) (collecting cases and noting that expert testimony is “routinely allowed” in

excessive force cases). 

The Court has reviewed Montgomery’s expert report and deposition testimony

and finds that it is sufficiently reliable so as to satisfy Rule 702's requirements. No one

here disputes Montgomery’s experience and training in the areas of police procedures

and standards. Given Montgomery’s significant experience in the field of law

enforcement, the Court sees no reason to preclude his testimony about police

standards and simply because it does not lend itself to application of the

Daubert factors. 

B. Assistance to the Finder of Fact

Defendants also seek to preclude Montgomery’s testimony under the theory that

it will not assist the jury. (ECF No. 72 at 9-10.) Defendants contend that Montgomery’s

testimony will invade the province of the jury and impede its fact-finding function. (Id. at

12-13.) 

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Ultimately, an expert witness’s testimony must assist the jury to be deemed

admissible. Fed. R. Evid. 702(a). However, in doing so, an expert witness’s testimony

may not usurp the jury’s fact-finding function. See Specht v. Jensen, 853 F.2d 805, 808

(10th Cir. 1988). The line between what is helpful to the jury and what intrudes on the

jury’s role as the finder of fact is not always clear; but it is well-settled that “[a]n opinion

is not objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704. 

When adopting Rule 704, the drafters of the Federal Rules of Evidence provided some

guidance as to what is permissible expert testimony: 

The abolition of the ultimate issue rule does not lower the

bars so as to admit all opinions. Under Rules 701 and 702,

opinions must be helpful to the trier of fact, and Rule 403

provides for exclusion of evidence which wastes time. 

These provisions afford ample assurances against the

admission of opinions which would merely tell the jury what

result to reach, somewhat in the manner of the oath-helpers

of an earlier day. They also stand ready to exclude opinions

phrased in terms of inadequately explored legal criteria. 

Thus the question, “Did T have capacity to make a will?”

would be excluded, while the question, “Did T have sufficient

mental capacity to know the nature and extent of his

property and the natural object of his bounty to formulate a

rational scheme of distribution?” would be allowed.

Thus, the Court must determine whether Montgomery’s proposed testimony would

assist the jury or intrude on its fact-finding function. 

Defendants contend that Montgomery’s testimony would tell the jury what result

to reach because the “well-established modern police practice standards” upon which

his conclusions are based are derived almost entirely from constitutional jurisprudence,

which will form the basis for the Court’s jury instructions. (ECF No. 72 at 10.) Thus,

Defendants contend that permitting Montgomery to offer his opinions on the propriety of

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the Defendants’ use of force is essentially allowing Montgomery to testify about how the

jury should decide the case. (Id.) The Court acknowledges that there will likely be

significant overlap between the legal authorities that form the basis for Montgomery’s

opinions and the Court’s final jury instructions. However, the Court sees a distinction

between Montgomery testifying about whether the degree of force used was

“reasonable” (which the Court will not permit) and whether the degree of force used was

in compliance with well-established modern police standards (which is permissible). 

Moreover, the Tenth Circuit has addressed this issue and ruled that testimony

from a police procedures expert is admissible, even if it is closely-related to the ultimate

issue to be resolved by the jury. In Zuchel, the Tenth Circuit held that expert testimony

on whether an officer’s conduct fell below generally accepted police procedures was

permissible. The Zuchel court noted that the expert “did not give an opinion on whether

Officer Spinharney’s conduct was unconstitutional. Rather, he stated his belief that the

conduct was inappropriate ‘based on [his] understanding of generally accepted police

custom and practice in Colorado and throughout the United States.’” 997 F.2d at 742-43. 

The same is true of Montgomery’s proposed testimony regarding the appropriateness of

the use of force in this case. Therefore, like the expert testimony in Zuchel,

Montgomery’s proposed testimony on the use of force in this case is admissible. 

The Tenth Circuit has also repeatedly permitted expert testimony on whether

departmental policies comply with generally accepted practices when municipal liability is

at stake. See Brown v. Gray, 227 F.3d 1278, 1287 (10th Cir. 2000) (citing approvingly

district court’s admission of expert testimony that city’s training was inadequate); Allen v.

Muskogee, Okla., 119 F.3d 837, 842-43 (10th Cir. 1997) (finding that expert testimony on

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 Defendants also move to preclude a specific portion of Montgomery’s

testimony—whether Defendants Nixon and Devine were intentionally deceptive when

they wrote up their reports on the Denver Diner incident. (ECF No. 72-1 at 22-23.) The

Court does not believe that Montgomery is qualified to testify about Defendants’ intent. 

Moreover, the Court finds that allowing Montgomery to offer his opinion that Nelson and

Devine were intentionally deceptive invades the province of the jury in so far as the jury

is tasked with assessing credibility. Plaintiffs acknowledge the troubling nature of this

aspect of Montgomery’s testimony and, in their Response to the Motion state: “Plaintiffs

do not intend to introduce testimony that may intrude on the role of the jury in assessing

credibility.” (ECF No. 89 at 11.) Plaintiffs contend: “Chief Montgomery will not state any

conclusion that the Officers were deceptive or untruthful.” (Id.) The Court will hold

Plaintiffs to this representation and will not allow Montgomery to offer any testimony

regarding these credibility-related issues.

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adequacy of police training was sufficient to support a jury’s verdict on municipal liability). 

The fact that an expert opines on causation, without more, is also not grounds to

preclude the testimony. Allen, 119 F.3d at 844 (approving of expert testimony that the

city’s lack of training caused the use of excessive force). 

Having reviewed Montgomery’s expert report and deposition testimony, the Court

finds that the proposed testimony will not intrude on the province of the jury and will,

instead, be helpful to the jury.2 However, if Defendants request, the Court will consider

giving the jury a cautionary instruction at the relevant point of Montgomery’s testimony.

See Zuchel, 997 F.3d at 743 (approving of district court’s instruction to the jury that “what

the law is with regard to the use of force will be contained in the instructions I give you.”). 

Ultimately, “the rejection of expert testimony is the exception rather than the

rule.” Fed. R. Evid. 702 advisory committee’s note. “The court’s ‘gatekeeping’ role

favors admissibility of expert testimony when it is reliable and relevant, but any issue of

credibility or weight of the expert’s testimony belongs to the trier of fact.” Hertz v.

Luzenac America, Inc., 2011 WL 1480523, *4 (D. Colo. April 19, 2011). “[T]he trial

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court’s role as gatekeeper is not intended to serve as a replacement for the adversary

system. . . . Vigorous cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and appropriate means of attacking

shaky but admissible evidence.” Fed. R. Evid. 702 advisory committee’s note. 

The Court finds that most of the arguments raised by Defendants in the Motion

go to the weight the jury should afford Montgomery’s testimony rather than the

admissibility of such testimony. Nothing in this Order prevents Defendants from

vigorously cross-examining Montgomery about the basis for his opinions and the

conclusions he draws therefrom. 

III. CONCLUSION

For the reasons set forth above, Defendants’ Motion Pursuant to Federal Rule of

Evidence 702 (ECF No. 72) is DENIED.

Dated this 5th day of February 2013.

BY THE COURT:

 

William J. Martínez 

United States District Judge

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