govinfo:USCOURTS-azd-2_18-cv-02778-4

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
Puente, et al., 
 
Plaintiffs, 
 
v. 
 
City of Phoenix, et al., 
 
Defendants. 
No. CV-18-02778-PHX-JJT 
 
ORDER 
 
 
 
 At issue is the admissibility of rebuttal expert testimony provided by Dr. David J. 
McIntyre on behalf of Defendants. The Court considers Plaintiff s’ Motion to Exclude 
Defendants’ “Rebuttal” Expert, David J. McIntyre (Doc. 241 , Mot.), Defendants’ 
Opposition (Doc. 283, Opp’n), and Plaintiffs’ Reply (Doc. 307 , Reply). The Court finds 
this matter appropriate for decision without oral argument. See LRCiv 7.2(f). The Court 
will grant in part and deny in part Plaintiffs’ Motion for the reasons set forth below. 
I. LEGAL STANDARD 
 Only evi dence that is relevant to the claims and defenses raised in a lawsuit is 
admissible. Fed. R. Evid. 402. Evidence is relevant if “it has any tendency to make a fact 
more or less probable than it would be without the evidence” and “the fact is of 
consequence in determining the action.” Fed. R. Evid. 401. But a court may exclude even 
relevant evidence if its probative value is substantially outweighed by a danger of, among 
other things, “ unfair prejudice , confusing the issues, [or] misleading the jury .” Fed. R . 
Evid. 403. 

 
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Rule 702 of the Federal Rules of Evidence tasks the trial court with ensuring that 
any expert testimony provided is relevant and reliable. Daubert v. Merrell Dow Pharm., 
Inc. (Daubert), 509 U.S. 579, 589 (1999). The trial court must first assess whether th e 
testimony is valid and whether the reasoning or methodology can properly be applied to 
the facts in issue. Daubert, 509 U.S. at 592 –93. Factors to consider in this assessment 
include: whether the methodology can be tested; whether the methodology has bee n 
subjected to peer review; whether the methodology has a known or potential rate of error; 
and whether the methodology has been generally accepted within the relevant professional 
community. Id. at 593–94. “The inquiry envisioned by Rule 702” is “a flexible one.” Id. at 
594. “The focus . . . must be solely on principles and methodology, not on the conclusions 
that they generate.” Id. 
 The Daubert analysis is applicable to testimony concerning scientific and non-
scientific areas of specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 
137, 141 (1999). However, the Daubert factors may not apply to testimony that depends 
on knowledge and experience of the expert, rather than a particular methodology. U.S. v. 
Hankey, 203 F.3d 1160, 1169 (9th Cir . 2000) (citation omitted) (finding that Daubert 
factors do not apply to police officer’s testimony based on 21 years of experience working 
undercover with gangs). An expert qualified by experience may testify in the form of 
opinion if his or her experient ial knowledge will help the trier of fact to understand 
evidence or determine a fact in issue, as long as the testimony is based on sufficient data, 
is the product of reliable principles, and the expert has reliably applied the principles to the 
facts of the case. See Fed. R. Evid. 702; Daubert, 509 U.S. at 579. 
 The advisory committee notes on the 2000 amendments to Rule 702 explain that 
Rule 702 (as amended in response to Daubert) “is not intended to provide an excuse for an 
automatic challenge to the tes timony of every expert.” See Kumho Tire Co. , 526 U.S. at 
152. “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.” Daubert, 509 U.S. at 596 (citation omitted). 

 
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II. ANALYSIS 
 The Court first notes that, in a prior Order, the Court concluded that the testimony 
of Dr. Barvosa —Plaintiffs’ social science and neuroscience expert on class -wide harm 
caused by the Phoenix P olice Department’s use of force at the August 22, 2017 rally at 
issue in this case—is admissible to the extent that she testifies regarding a categorical harm 
based on a neural encoding of fear and that the class could have suffered such a common 
harm. (Doc. 325 at 6.) But her conclusion that every class member did in fact suffer such 
harm is not admissible because it is not supported by her principles and methods. (Doc. 325 
at 6.) 
Defendants have engaged Dr. McIntyre to testify in rebuttal to Dr. Barvosa’s 
testimony. In their Motion to Exclude, Plaintiffs offer three arguments in support of 
excluding Dr. McIntyre’s testimony: (1) the testimony is improper rebuttal evidence under 
Federal Rule of Civil Procedure 26(a)(2)(D)(ii); (2) the testimony’s probative value is 
outweighed by the risk of confusing the issues and misleading the jury under Federal Rule 
of Evidence 403; and (3) the testimony is unreliable under Daubert and its progeny. The 
Court will examine each of these arguments in turn. 
A. Rebuttal Evidence 
Plaintiffs first point out that Defendants disclosed Dr. McIntyre to provide rebuttal 
evidence, which Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure specifies as 
evidence “intended solely to contradict or rebut evidence on the same subject matter 
identified by another party.” Plaintiffs argue that because Dr. McIntyre’s testimony 
addresses whether the class of Plaintiffs suffered psychological or medical harm or trauma, 
and Dr. Barvosa approaches the class harm principally from a so cial science and 
neuroscience perspective, Dr. McIntyre’s testimony is not on the same subject as 
Dr. Barvosa’s testimony. 
In the Complaint, Plaintiffs allege that they seek “damages to compensate Plaintiffs 
and the class they represent for the denial of t heir First Amendment rights on August 22, 
2017, and for the physical injuries and emotional harms resulting from the Phoenix Police 

 
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Department’s excessive use of force.” (Doc. 1, Compl. ¶ 3.) In other areas of the Complaint, 
Plaintiffs principally refer to the harms they allege the class suffered as “injuries.” ( E.g., 
Compl. ¶ 117.) Later, in the Amended Motion for Class Certification, Plaintiffs again refer 
to the class harm as “injury” and cite Memphis Community School District v. Stachura, 477 
U.S. 299, 310–11 (1986), for the proposition that they may not seek damages premised on 
the abstract “value” or “importance” of the constitutional rights they allege were violated, 
but instead must seek damages based on actual, provable injury. 
The Court understands Plaintiffs’ point that Dr. Barvosa and Dr. McIntyre approach 
the measure of mental harm the class may have suffered in different ways. But they both 
address the same subject matter, namely, mental (or “neurological” or “emotional”) harm; 
Plaintiffs proffer Dr. Barvosa to try to prove the class-wide mental injury, and Defendants 
proffer Dr. McIntyre to try to disprove that injury. The Court thus denies Plaintiffs’ request 
to exclude Dr. McIntyre’s testimony on the basis that it is not rebuttal evidence. 
B. Rule 403 
Plaintiffs next argue that, given the limited relevance of Dr. McIntyre’s testimony 
with regard to rebutting Dr. Barvosa’ s testimony because the two competing experts 
approach the injury question from different scientific fields, the Court should exclude 
Dr. McIntyre’s testimony because the risk it will confuse or mislead the jury outweighs its 
probative value. The Court agrees with Plaintiffs in certain respects. Dr. McIntyre goes too 
far when he suggests that Dr. Barvosa, as a social scientist and neuroscientist, is not 
qualified to opine on mental harm the class may have suffered. (E.g., Doc. 241-2, McIntyre 
Rebuttal Report at 7 (“Professor Barvosa is not qualified” to make her findings. “She is not 
a medical or psychological provider or researcher.”).) The Court, as the gatekeeper, has 
already concluded that Dr. Barvosa is qualified to offer her opinions as to mental harm . 
(Doc. 325.) 
Likewise, Dr. McIntyre may not suggest that Dr. Barvosa’s opinions are not based 
on reliable methods simply because they are derived in another scientific field. ( E.g., 
McIntyre Rebuttal Report at 7; Doc. 242-3, McIntyre Deposition at 69, 81 (suggesting no 

 
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reliable method for evaluation of mental harm exists outside of the context of clinical 
psychological assessments).) Again, the Court, as the gatekeeper, has concluded that 
Dr. Barvosa has based her opinions on reliable methods. The Court will thus exclude any 
testimony of Dr. McIntyre that suggests Dr. Barvosa is unqualified to reach the conclusions 
she made or that they were not based on reliable methods in her scientific field. Put another 
way, the Court will permit Dr. McIntyre to testify within his own field of expertise but not 
to suggest that it is the only field of expertise with regard to class-wide mental harm. 
The Court also agrees with Plaintiffs that Dr. McIntyre may not suggest that class-
wide damages are not ascertainable as a matter of fact and, by extension, as a matter of 
law. (See Reply at 8 –10.) While the Court found in its prior Order (Doc. 325) that 
Dr. Barvosa’s opinion that the entire class actually (as opposed to could have) suffered the 
same mental harm was not based on her identified principles and methods, the Court did 
not conclude that Plaintiffs could not demonstrate a class -wide harm—as the Court has 
stated previously (Doc. 191 at 11 –12)—arising “from common proof regarding 
Defendants’ liability.” See, e.g., Aichele v. City of Los Angeles , 314 F.R.D. 478, 495 –96 
(C.D. Cal. 2013) (citing Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1086–87 
(9th Cir. 2009) (stating a plaintiff in a civil rights case may show compensatory damages 
through, for example, pain and suffering and humiliation without showing economic loss)); 
see also Memphis Cmty. Sch. Dist., 477 U.S. at 310–11 (stating compensatory damages are 
available for violation of c onstitutional rights and must be based on actual, provable 
injury). Plaintiffs must show class-wide harm more likely than not occurred—or 
Defendants may show it more likely than not did not —in this case . To the extent 
Dr. McIntyre suggests that class-wide harm does not exist, that testimony will be excluded. 
C. Reliability 
Plaintiffs next argue Dr. McIntyre’s opinions are unreliable under Federal Rule of 
Evidence 702 and Daubert. First, Plaintiffs point out that while Defendants complained 
Dr. Barvosa did n ot interview the class members in the process of assessing their mental 
harm, neither did Dr. McIntyre in reaching his conclusion that the class members did not 

 
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suffer harm. Indeed, in limiting her testimony, the Court relied in part on the fact that 
Dr. Barvosa did not interview every class member in reaching her final conclusion—albeit 
in a different discipline than Dr. McIntyre—that they all suffered the same mental harm by 
way of a neural encoding of fear. (Doc. 325 at 5 –6.) The Court likewise finds that 
Dr. McIntyre’s opinion that no class member suffered mental harm is not supported by his 
own identified principles and methods, which include conducting a clinical evaluation of 
an individual to make a psychological assessment of harm. (E.g., McIntyre Rep. at 5 (citing 
Specialty Guidelines for Forensic Psychology).) Dr. McIntyre is thus precluded on 
reliability grounds from opining that no class member suffered mental harm. At most, 
Dr. McIntyre can opine that, based on his review of the class me mbers’ declarations, he 
did not see evidence of mental harm. Plaintiffs may cross -examine Dr. McIntyre as to the 
sufficiency of the facts underpinning any opinion he offers. See Daubert, 509 U.S. at 596. 
Plaintiffs also argue that Dr. McIntyre improperly e valuates the credibility of the 
class members by way of the statements they made in their declarations. Dr. McIntyre may 
certainly not state that the class members committed perjury, as Defendants seem to 
suggest in their Response brief, because such an assertion would be an impermissible legal 
conclusion, among other problems. Dr. McIntyre may testify as to whether he was able to 
rely on class members’ declarations solely in the context of forming his expert opinion 
regarding class -wide mental harm, and no t to challenge class members’ credibility 
generally. See United States v. Candoli, 870 F.2d 496, 506 (9th Cir. 1989) (“The jury must 
decide a witness’ credibility. An expert witness is not permitted to tes tify specifically to a 
witness’ credibility or to t estify in such a manner as t o improperly buttress a witness’ 
credibility.” (internal citation omitted)).1 
 
 
 
1 Plaintiffs also contend that Dr. McIntyre opines on matters beyond his expertise when he 
states that class members were “not entitled to be in the direct line of sight of the President 
of the United States” (Mot. at 17), and Defendants agree (Opp’n at 12). The Court here 
reiterates that no expert witnesses will be permitted to opine on matters beyond their fields 
of expertise. 

 
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For the foregoing reasons, Dr. McIntyre may testify in rebuttal to Dr. Barvosa’s 
testimony, but only within his field of expertise. The Court will otherwise grant Plaintiffs’ 
Motion to Exclude to the extent reflected above. 
 IT IS THEREFORE ORDERED granting in part and denying in part Plaintiffs’ 
Motion to Exclude Defendants’ “Rebuttal” Expert, David J. McIntyre (Doc. 241) as 
reflected in this Order. 
 Dated this 31st day of March, 2021. 
 
 
 
 
Honorable John J. Tuchi 
United States District Judge 

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