MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Plaintiff Jesus Ornelas brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendant, Trooper C.R. Lovewell, violated his Fourth Amendment right against unreasonable seizure by employing excessive force during an arrest for driving under the influence. This case is before the Court upon Defendant's Motion for Summary Judgment (Doc. 43) and Motion to Exclude Expert Testimony (Doc. 45). As explained in detail below, the Court grants in part and denies in part Defendant's Daubert motion and further finds that, because Plaintiff cannot prove that Defendant violated a clearly established constitutional right, the motion for summary judgment must be sustained.
The following facts are either uncontroverted or stated in the light most favorable to the nonmoving party.
Jesus Ornelas was stopped by Defendant Trooper C.R. Lovewell in Johnson County, Kansas during the late evening of April 28, 2010. Trooper Lovewell administered field sobriety tests and a preliminary breath test to Ornelas, then placed Ornelas under arrest for driving under the influence ("DUI"). Using Ornelas's cell phone, Trooper Lovewell contacted Ornelas's family to arrange for them to retrieve his vehicle in lieu of having the vehicle towed. Trooper Lovewell placed handcuffs on Ornelas, behind his back, and placed him and seat-belted him into the front passenger seat of the patrol car. Ornelas's wife and daughter, Lourdes and Veronica Ornelas, respectively, arrived. Veronica got out of the vehicle and spoke with Trooper Lovewell, underneath the street light and street sign at the corner, some distance in front of the patrol car.
While Trooper Lovewell was speaking with Veronica, Ornelas managed to honk the patrol car horn twice. Ornelas testified that his throat was very dry and he was "suffocating, " and he honked the horn, although his hands were still cuffed behind his back. Trooper Lovewell said to Vernonica, "He's going to piss me off here in a second, " and walked toward the passenger side of the patrol car, outside the view of the video camera. As Trooper Lovewell approached the patrol car, Ornelas said, "Puto hombre. Chinga su madre, puto." Ornelas testified that he was saying "bad words" because he "felt shame that [Trooper Lovewell] was talking to my daughter and that they saw me in this state, and the suffocation that I was feeling." Ornelas stated that he felt shame because he was being seen drunk.
Trooper Lovewell opened the car door and Ornelas said, "I don't wanna see my family over here. What you want to go...." Lovewell asked, "What?" and Ornelas repeated, "I don't wanna see my family..." Lovewell replied, "I don't care, " and Ornelas repeated back, "I don't care?" Ornelas testified that Trooper Lovewell was "really upset" with him as he approached the car, and Veronica began walking towards the patrol car because it was clear that her father was agitated and she wanted to calm him down.
After this verbal exchange, Trooper Lovewell attempted to close the door of the patrol car. Ornelas testified that he put his foot down towards the concrete and then the Trooper "slammed the door and it caught my leg." Trooper Lovewell was unable to close the door because Ornelas's right foot and/or leg was in the way. Ornelas used his left foot/leg to push against the door and Trooper Lovewell then opened the door and kicked Ornelas just below the right knee. After the kick to his right leg, Ornelas turned back into the car and Trooper Lovewell shut the door. Ornelas was then taken to the jail in Gardner, Kansas.
The stop was recorded on a video camera inside Trooper Lovewell's patrol car, which was activated before Ornelas came to a stop. The in-car video recorded and continued to record until Ornelas was removed from the Johnson County Jail by ambulance. In addition to the video, the recording captured audio on two different stereo channels, with one channel recording from the in-car microphone and the other channel recording from a wireless microphone affixed to, or worn by, Trooper Lovewell.
From the time Trooper Lovewell said "I don't care, " until the time the car door actually shut, just over ten seconds expired. When Ornelas repeated back "I don't care, " his voice inflection went up. Ornelas then said, "Chinga su madre, puto, " then began to say, "You know, I..." Trooper Lovewell is heard to say "Get your f____, " which is an incomplete word, not a deleted expletive. There is a non-verbal sound immediately preceding Ornelas's scream, then Trooper Lovewell is heard to say, "get your foot in the car." The door then slammed shut, and Trooper Lovewell said, "Don't you shove that door open on me."
Veronica Ornelas testified that her father screamed when Trooper Lovewell tried to close the car door on his foot/leg, that Lovewell then opened the door and kicked Ornelas, and that her father screamed before the kick.
Trooper Lovewell testified that he did not realize that Ornelas's foot was in the way until Lovewell noticed the car door would not shut, staying open about three or four inches. Lovewell then pulled the door back and saw Ornelas's right foot in the hinge of the door. Trooper Lovewell testified that he did not know whether Ornelas was pushing the door, but his foot was up against the door holding it open. Ornelas admits that he was pushing against the door with his left leg when Trooper Lovewell slammed the door on his right foot/leg.
Prior to honking the patrol car horn, Trooper Lovewell had observed Ornelas and his demeanor for nearly thirty minutes. Ornelas was extremely intoxicated. Trooper Lovewell testified that when Ornelas honked the horn, he was concerned that Ornelas might have escaped his handcuffs. Lovewell testified that when he went to check on what was going on in the patrol car, he observed Ornelas's demeanor as "enraged." Lovewell did not know whether Ornelas was preventing him from shutting the door so he could get out of the car. Lovewell further testified that he did not know whether Ornelas had the seat belt on or what the status of the handcuffs was. On previous occasions, Lovewell had persons move handcuffs to their front. He had "no idea" how Ornelas was able to honk the horn in the center of the steering wheel. Lovewell testified that at the time the horn was honked, he did not know what Ornelas was doing, whether he had climbed over into the driver's seat, whether he was still belted into the seat, how he was honking the horn, or what was going on inside the patrol car. Trooper Lovewell testified that he was concerned that Ornelas was attempting to exit the vehicle, and specifically concerned, "to get the door shut, keep him in the car and deal with whether or not the seat belt was on, where the handcuffs were or anything like that after I was able to keep him in the car." Lovewell testified that as he kicked Ornelas, he perceived a threat to loss of control of Ornelas in "the aggression that exploded there in a short time frame. I was just trying to get him under control and keep him in control and keep him in the car." He testified that when he tried to shut the door, he did not know "what the deal [was], but when I couldn't get the door shut, [I] pulled the door back open and that's when I saw his foot." Lovewell was trying to kick Ornelas in his calf area, at the calf muscle, and as low as possible. His kick to Ornelas's leg was to both maintain and regain control of Ornelas, and his "concern was to prevent [Ornelas] from getting out of that car and to keep him in that car so that nothing else could happen and once I was able to shut that door, it was done." Trooper Lovewell missed the calf muscle, however, and made contact with Ornelas's right leg just below the knee.
After taking Ornelas to the Johnson County Jail, Trooper Lovewell administered an alcohol breath test, which indicated a breath alcohol content of.229 grams of alcohol per 210 liters of breath. After Ornelas complained of pain at the jail, Trooper Lovewell photographed Ornelas's knees and noted that the right one had begun to swell. Ornelas sustained a tibial fracture, which is a break in the upper part of the tibia bone of his right leg that involved the joint part of his knee.
These are the basic facts under which the Court must analyze both Defendant's Daubert motion to exclude Plaintiff's expert testimony as unreliable, as well as Defendant's motion for summary judgment.
II. Daubert Motion
Because Plaintiff incorporates his experts' opinions into his statement of uncontroverted facts, the Court will address Defendant's motion to exclude their testimony.
The Court has broad discretion in deciding whether to admit expert testimony. Fed.R.Evid. 702 provides that a witness who is qualified by knowledge, skill, experience, training or education may testify in the form of opinion or otherwise as to scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue, "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."
The proponent of expert testimony must show "a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation." In order to determine whether an expert opinion is admissible, the Court performs a two-step analysis. "[A] district court must [first] determine if the expert's proffered testimony... has a reliable basis in the knowledge and experience of his discipline.'" Second, the district court must further inquire into whether the proposed testimony is sufficiently "relevant to the task at hand." An expert opinion "must be based on facts which enable [him] to express a reasonably accurate conclusion as opposed to conjecture or speculation... absolute certainty is not required." And it is not necessary to prove that the expert is "indisputably correct, " but only that the "method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which satisfy Rule 702's reliability requirements."
Daubert sets forth a non-exhaustive list of four factors that the trial court may consider when conducting its inquiry under Rule 702: (1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community. But "the gatekeeping inquiry must be tied to the facts of a particular case."
It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert. The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated. In this case, the parties have not requested an evidentiary hearing on Defendant's motion, as there has been no challenge to the witnesses' qualifications. The Court has carefully reviewed the exhibits filed with the ...