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Meier v. McCoy12/30/2004
JUDGMENT AFFIRMED
Rothenberg and Casebolt, JJ., concur.
In this personal injury action, plaintiff, Leonard Louis Meier, appeals the judgment in favor of defendants, Robert McCoy and Mike Gabel, officers of the Commerce City Police Department. He also appeals the award of attorney fees and costs. We affirm.
Plaintiff was injured while being arrested by defendants. He sued defendants for negligence, assault, and battery, and prayed for punitive damages based on willful and wanton conduct. Plaintiff also alleged defendants used excessive force in violation of his civil rights under 42 U.S.C. ยง 1983. The jury returned verdicts for defendants on all claims. Thereafter, defendants asked for attorney fees, and the court awarded fees against plaintiff and his attorney, jointly and severally.
I.
Plaintiff contends that the trial court erred when it disqualified his expert witness and denied his motion to strike defendants' expert. We disagree.
CRE 702 governs a trial court's determination regarding the admissibility of expert testimony. When proposed expert testimony involves experience-based specialized knowledge, the court must consider whether the testimony will be helpful to the jury and whether the witness is qualified to render an expert opinion on the subject in question. People v. Shreck, 22 P.3d 68 (Colo. 2001); Brooks v. People, 975 P.2d 1105 (Colo. 1999). If the testimony is admissible under CRE 702, the court must then determine whether the probative value of that evidence is substantially outweighed by the danger of unfair prejudice. CRE 403; Brooks v. People, supra.
The qualification of an expert witness to testify is within the trial court's discretion and will not be disturbed absent an abuse of that discretion. Southerland v. Argonaut Ins. Co., 794 P.2d 1102 (Colo. App. 1990). An abuse of discretion occurs only when the trial court's ruling is manifestly arbitrary, unreasonable, or unfair. Keybank v. Mascarenas, 17 P.3d 209 (Colo. App. 2000).
A.
We first reject plaintiff's argument that the trial court improperly excluded the testimony of his expert witness.
1.
Plaintiff argues that the witness was qualified to render the opinion that defendants used excessive and unreasonable force because (1) he is a certified emergency technician; (2) he is a founder and owner of a company that performs executive protection and forensic investigations; and (3) he has "extensive" experience in law enforcement as a firearms instructor and bloodhound expert. We are not persuaded.
The trial court concluded that plaintiff's witness was not qualified to testify as an expert on the use of force by law enforcement officers effecting an arrest. The court reasoned that the witness had never (1) been employed in a law enforcement field, (2) participated professionally in a determination of what force a police officer may use in making an arrest, (3) arrested anyone, (4) completed a police officer training course, or (5) been retained by a police department to teach use of force. The court found that although the witness is a certified federal firearms instructor, he considers himself an expert in the use of firearms but not in other aspects of the use of force. The court also found that the only training in emergency medicine the witness had was the EMT basic course.
Claims of excessive use of force are analyzed under a Fourth Amendment objective reasonableness standard. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 44
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