Desir v. Broward County et al

1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-cv-60499-SINGHAL/STRAUSS
MIKECO DESIR,
o/b/o of Kevin Desir, Deceased,
Plaintiff,
v.
SHERIFF GREGORY TONY et al.,
Defendants.
/
OMNIBUS ORDER ON MOTIONS TO EXCLUDE OR LIMIT TESTIMONY OF
CERTAIN EXPERT WITNESSES
THIS MATTER came before the Court upon Defendants’ Motion to Strike Plaintiff’s
Rebuttal Expert or Limit Testimony [DE 122], Defendants’ Daubert Motion to Exclude the
Opinions and Expected Expert Testimony of Dr. David Macpherson [DE 162], Defendants’
Daubert Motion to Exclude the Opinions and Expected Expert Testimony of Patrick Hurley
[DE 163], Defendants’ Daubert Motion to Limit and Exclude the Opinion and Expected Expert
Testimony of Dr. Daniel Schultz [DE 164], Plaintiff’s Motion to Exclude the Testimony and
Report of Defendants’ Expert Mark Shuman [DE 165], and Plaintiff’s Motion to Exclude the
Testimony and Report of Defendants’ Expert Aubrey Land [DE 166] (collectively, the “Motions”).
The Motions have been referred to me, pursuant to 28 U.S.C. § 636(b)(1)(A) and the Magistrate
Judge Rules of the Local Rules of the Southern District of Florida, to take all action as required by
law. 	See generally [DE 227]. 	I have reviewed the Motions, respective Responses, respective
Replies (if applicable), and all other pertinent portions of the record. The Court rules as follows.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 1 of 47

2
BACKGROUND
Plaintiff Mikeco Desir (“Plaintiff”) brings this action on behalf of his deceased brother,
Kevin Desir (“Mr. Desir”). See generally [DE 113]. Plaintiff’s claims arise out of the allegedly
wrongful actions of multiple parties preceding Mr. Desir’s death while he was in custody at
Broward County’s North Broward Bureau Jail. 	Plaintiff brings multiple claims, including ones
under 42 U.S.C. § 1983 for the alleged use of excessive or unreasonable force in violation of the
Fourteenth Amendment. 	See id. at 33-61. 	According to the Second Amended Complaint, Mr.
Desir had been arrested for possessing marijuana in January 2021. [DE 113] at 2. After being in
custody for around four days, Mr. Desir had a mental health “episode” in his cell. 	Id. 	He was
naked and appeared to have cut himself. 	Id. ¶ 37. 	Following a succession of escalating events
after staff in the jail began to intervene, Mr. Desir became unresponsive, was transported to a
hospital, and eventually died.
Some of the key issues in the case include: (1) Mr. Desir’s cause of death, (2) the
reasonableness of the force used by law enforcement personnel against Mr. Desir, and (3) the
amount of financial support and household services that Mr. Desir’s minor daughters lost because
of their father’s passing. 	The parties have engaged experts to opine on these issues at trial.
Consequently, the parties have filed motions to exclude or limit the testimony of the opposing
side’s experts for failure to comply with the requirements of Federal Rule of Evidence 702, which
addresses testimony by expert witnesses, and other rules. Specifically, Defendants Gregory Tony,
in his capacity as Sheriff of Broward County, Ryan Daniel, Angela McNeal, Devon Parker,
Jeremiah Howard, Kimberly Green, and Christopher Williams (collectively, “Defendants”) seek
to exclude or limit the testimony of Plaintiff’s experts on cause of death, use of force, and lost
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 2 of 47

3
support and services. On the other hand, Plaintiff seeks to exclude Defendants’ experts on cause
of death and use of force. The Court addresses the admissibility of each expert below.
LEGAL STANDARD
“Under Rule 702 and Daubert, district courts must act as ‘gatekeepers’ which admit expert
testimony only if it is both reliable and relevant.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291
(11th Cir. 2005) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). 	A
district court’s inquiry, however, is a flexible one. Daubert, 509 U.S. at 594. Still, for an expert’s
testimony to be admissible, a party must demonstrate that the following elements are satisfied—
by a preponderance of the evidence:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and methods
to the facts of the case.
Fed. R. Evid. 702. The Eleventh Circuit has streamlined this analysis into a three-part test that the
proponent of the expert must satisfy: (1) the expert is qualified to testify on the matter to be
addressed; (2) the expert’s methodology is sufficiently reliable; and (3) the proposed expert
testimony would be helpful to the jury. Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001) (citing
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 563 (11th Cir. 1998)). While an analysis
of these elements may necessarily entail some overlap, the concepts of qualification, reliability,
and fit or helpfulness are nonetheless distinct and should not be conflated. Quiet Tech. DC-8, Inc.
v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003); see also United States v. Frazier,
387 F.3d 1244, 1260 (11th Cir. 2004) (“The proponent of expert testimony always bears the burden
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 3 of 47

4
to show that his expert is qualified to testify competently regarding the matters he intended to
address; the methodology by which the expert reached his conclusions is sufficiently reliable; and
the testimony assists the trier of fact.” (citation modified)); GS Holistic, LLC v. Mr. Smokey Corp.,
No. 23-20599-CV, 2024 WL 4653788, at *1 (S.D. Fla. June 5, 2024) (“The party offering the
expert testimony carries the burden of laying the proper foundation for its admission, and
admissibility must be shown by a preponderance of the evidence.”).
In exercising its gatekeeping role, a court should not “make ultimate conclusions as to the
persuasiveness of the proffered evidence.” Quiet Tech., 326 F.3d at 1341. Instead, a court should
merely analyze the methodology of the expert at issue. 	Id.; see also Daubert, 509 U.S. at 595
(“The focus, of course, must be solely on principles and methodology, not on the conclusions that
they generate.”). 	This limited focus is because “[v]igorous 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. In other words,
the gatekeeper role of the court “is not intended to supplant the adversary system or the role of the
jury.” Quiet Tech., 326 F.3d at 1341 (quoting Maiz, 253 F.3d at 666).
ANALYSIS
I. 	UNTIMELY DISCLOSURE OF DR. DANIEL SCHULTZ
Dr. Daniel Schultz is a forensic pathologist. [DE 164] at 2; [DE 176] at 1. Plaintiff seeks
to use Dr. Schultz as both an affirmative expert witness on the medical cause of Mr. Desir’s death
and as a rebuttal expert to rebut the opinions and conclusions of Defendants’ cause-of-death expert,
Dr. Mark Shuman. [DE 128] at 5-6. Defendants filed two motions regarding Dr. Schultz. See
generally [DE 122]; [DE 164]. 	First, Defendants have moved to limit the use of Dr. Schultz’s
opinions as an affirmative expert because Plaintiff did not timely disclose him. [DE 122] at 1-5.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 4 of 47

5
Second, Defendants have moved to limit Dr. Schultz’s testimony at trial so that he cannot provide
his subjective interpretation of the surveillance footage for the jury. [DE 164] at 2-7. The Court
addresses the motion to exclude Dr. Schultz for his untimely disclosure first. 	The Court will
address the latter motion targeted at Dr. Schultz when it addresses Plaintiff’s motion to exclude or
limit the testimony of Dr. Shuman, as there is some overlap between the two motions.
Plaintiff and the rest of Mr. Desir’s family initially engaged Dr. Schultz to perform an
autopsy of Mr. Desir the day after he passed away, which was before the county medical examiner
released any findings and conclusions. [DE 128] at 9-10; [DE 128-2] at 1. At that time, Plaintiff
and the family of Mr. Desir had not hired Dr. Schultz to provide expert testimony in this case.
[DE 128] at 10; [DE 128-2] at 1. Dr. Schultz then performed an autopsy of Mr. Desir on January
31, 2021, documenting his findings in an autopsy report. [DE 128] at 4. He concluded that Mr.
Desir died from manual strangulation. [DE 164] at 2. Dr. Schultz also watched the surveillance
footage of the incident, which informed or confirmed his conclusions regarding Mr. Desir’s cause
of death. [DE 176] at 1, 4.
During discovery, Plaintiff included Dr. Schultz in his initial disclosures to Defendants on
October 26, 2023. 	[DE 128] at 3. 	Plaintiff later produced Dr. Schultz’s autopsy report to
Defendants on November 3, 2023. Id. On June 10, 2024, counsel for co-defendants in the case
deposed Dr. Schultz. Id. However, according to Defendants, at both the expert disclosure deadline
on July 3, 2024, and amended expert disclosure deadline on August 5, 2024, Plaintiff neglected to
disclose Dr. Schultz as an affirmative expert. 	[DE 122] at 2-3. 	Defendants inquired about the
omission but did not receive a response. [DE 122] at 2, 4; [DE 122-2] at 1. Yet Plaintiff did timely
include Dr. Schultz as a rebuttal expert on August 19, 2024, which was two weeks after the
affirmative expert disclosures were ultimately due. [DE 122] at 3; [DE 128] at 4-5. Defendants
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 5 of 47

6
deposed Dr. Schultz on October 7, 2024, for what was Dr. Schultz’s second deposition in the case.
See [DE 128] at 5; [DE 164-2] at 1, 88-101.
Defendants move to strike or limit Dr. Schultz’s August 19, 2024 Report (and related
opinions or expert testimony) on Mr. Desir’s cause of death from Plaintiff’s case in chief because
it was disclosed at the rebuttal report deadline rather than the prior expert report deadlines.
[DE 122] at 3. Further, Defendants state that the opinions in the August 19, 2024 Report should
only be used to rebut the opinions of Defendants’ cause-of-death expert, Dr. Shuman. 	Id.
Defendants expressly made this argument in a pretrial motion rather than a motion in limine—but
Defendants also noted potential plans to include the argument in a later motion in limine.1
[DE 122] at 1-2. Plaintiff responded to the pretrial motion by stating that (to the extent that he was
required to disclose Dr. Schultz as an affirmative expert) any untimely disclosure was an oversight,
and Defendants were not harmed or prejudiced by the oversight because Defendants had known
about Dr. Schultz (and his opinions on cause of death) long before the expert report deadlines.
[DE 128] at 3-4, 7. To support his argument, Plaintiff notes that he listed Dr. Schultz in his initial
disclosures and had produced Dr. Schultz’s autopsy report over half a year prior to the initial expert
disclosure deadline. 	Id. at 3. 	Plaintiff also notes that Dr. Schultz had been deposed by co-
defendants in the case prior to the relevant deadlines, and the deposing co-defendants indicated
through questioning that they understood Dr. Schultz to be testifying as an expert witness in the
case. Id. at 3-4; [DE 128-1] at 1. According to Plaintiff, both Dr. Schultz’s autopsy report and
deposition testimony contained his opinions on Mr. Desir’s cause of death. Id. at 4. The Court
1 On the other hand, Defendants’ later Daubert motion targeted at Dr. Schultz “does not attempt
to have his testimony barred whole cloth, or even exclude his medical opinion [about] Mr. Desir’s
cause of death . . . .” [DE 164] at 2.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 6 of 47

7
concludes that Defendants were not prejudiced by any supposed untimely disclosure and will not
limit Dr. Schultz’s opinions or testimony on this basis.
“Rule 37 gives a trial court discretion to decide how best to respond to a litigant’s failure
to make a required disclosure under Rule 26.” Taylor v. Mentor Worldwide LLC, 940 F.3d 582,
593 (11th Cir. 2019). Under Rule 37(c)(1), a party who fails to disclose information or witnesses
required by Rule 26 may be permitted by the Court to still use that information or witness if “the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “Substantially justified
means that reasonable people could differ as to the appropriateness of the contested action.”
Knight through Kerr v. Miami-Dade County, 856 F.3d 795, 811-12 (11th Cir. 2017) (quoting
Maddow v. Procter & Gamble Co., 107 F.3d 846, 853 (11th Cir. 1997)). 	Harmless means that
“there is no prejudice to the party entitled to receive the disclosure.” Lucibella v. Ermeri, No. 20-
CV-82156, 2024 WL 3817383, at *2 (S.D. Fla. Aug. 14, 2024) (quoting Northrup v. Werner
Enter., Inc., No. 14-CV-1627-T-27, 2015 WL 4756947, at *1 (M.D. Fla. Aug. 11, 2015)).
Here, insofar as Defendants still seek relief from this motion [DE 122], the Court finds that
any delay by Plaintiff in disclosing Dr. Schultz as an expert witness was harmless, as Defendants
seemingly concede that they were not prejudiced considering Plaintiff’s Response [DE 128] and
the Court’s Second Amended Scheduling Order [DE 133].2 	[DE 134] at 1. 	Even without the
apparent concession, the Court finds that any untimely disclosure did not prejudice Defendants,
given their ample notice of Dr. Schultz’s involvement in the case and opportunities to depose him.
Further, preventing Plaintiff from relying on Dr. Schultz’s testimony regarding Mr. Desir’s cause
of death—a foundational issue in the case—would be an overly harsh sanction for Plaintiff’s
oversight, as Defendants have, according to Plaintiff, been aware of Dr. Schultz’s opinions since
2 The Court later extended discovery deadlines again, further minimizing any prejudice. See, e.g.,
[DE 142].
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 7 of 47

8
relatively early in the case. Cf. Predelus v. Atain Specialty Ins. Co., No. 21-23382-CIV, 2022 WL
11202228, at *3 (S.D. Fla. Oct. 19, 2022) (“Striking Mr. Charles’ report under the circumstances
of this case would be an excessive sanction given that neither the delay nor the deficiencies of the
disclosures amounted to substantive harm to Defendant.”). The motion [DE 122] is due to be
denied.
II. 	DR. MARK SHUMAN
Dr. Shuman is a board-certified forensic pathologist whom Defendants hired to opine on
Mr. Desir’s cause of death. [DE 175] at 2. Unlike Dr. Schultz and the county medical examiner,
Dr. Shuman did not examine Mr. Desir’s body. [DE 165] at 1. Dr. Shuman instead formed his
opinion based on, among other things, the prior autopsy reports, Mr. Desir’s medical records,
autopsy photos, and the video footage of the incident. [DE 165] at 1-2; [DE 175] at 2.
Dr. Shuman disagrees with Dr. Schultz’s opinion that Mr. Desir died from manual
strangulation. [DE 175] at 4. Dr. Shuman instead believes that Mr. Desir’s death resulted from
“an episode of psychosis” while being restrained. [DE 175] at 2; [DE 165-1] at 3-5. Dr. Shuman
also used the term “Excited Delerium Syndrome” to describe this contrary cause-of-death opinion
in his report, which Dr. Shuman himself noted is a term that has “fallen out of favor” in the medical
community. [DE 165-1] at 3-4. Yet Dr. Shuman’s report also indicates that numerous syndromes
have similar presentations, and he believes that the exact wording of the diagnosis does not make
a difference because “death during psychosis is a known phenomenon and occurs in the absence
of restraint and occasionally after successful restraint.” Id. at 4. As explained by Dr. Shuman at
his deposition, an increased release of catecholamines from undergoing a psychotic episode,
combined with the increased release of catecholamines that one would expect from fighting against
restraint, puts one at a higher risk of cardiac arrhythmia and thus cardiac arrest. [DE 175-1] at 41-
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 8 of 47

9
42. Therefore, in Dr. Shuman’s opinion, excited delirium, psychosis, or any other phrase meaning
generally the same idea is what, in addition to restraint, caused Mr. Desir’s death. [DE 175-1] at
37-43.
Dr. Shuman’s disagreement with Dr. Schultz’s opinion—that manual strangulation or neck
compression led to the lack of oxygen in Mr. Desir’s brain and subsequent death—relies on a few
key premises. For example, Dr. Shuman’s report and deposition testimony indicate that death by
manual strangulation requires complete compression of the key arteries in one’s neck for ten to
fifteen seconds to cause a person to lose consciousness, followed by continued compression for at
least a couple minutes to cause death. 	[DE 165-1] at 5; [DE 175-1] at 65-66. 	Dr. Shuman’s
deposition testimony also indicates that a person who has lost consciousness would lack
movement. [DE 175-1] at 72, 80-81. Dr. Shuman’s disagreement with Dr. Schultz boils down to
his application of these premises to his own observations when watching the video footage. See
id. at 71. According to Dr. Shuman, the footage does not show any hands being placed on Mr.
Desir’s neck for a period long enough for Mr. Desir to have died by manual strangulation. Id. Dr.
Shuman observed from the video that the officer did not always have his hands on Mr. Desir’s
neck during the necessary period, id. at 94-95, and that Mr. Desir did not seem to lose
consciousness at a time that would “make sense” for the death to have resulted from manual
strangulation, id. at 71. Yet Dr. Shuman admitted that Dr. Schultz would be correct if Mr. Desir’s
neck was compressed for more than three minutes and Mr. Desir lost consciousness early in that
time. Id.
Plaintiff’s Daubert motion targeted at Dr. Shuman primarily challenges the reliability of
Dr. Shuman’s opinions rather than his qualifications to provide expert testimony or the helpfulness
to the jury of his opinions. Plaintiff first argues that Dr. Shuman’s opinion is unreliable because
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 9 of 47

10
he bases it on facts that he does not know or incorrectly perceives. [DE 165] at 3-6. Plaintiff next
argues that Dr. Shuman’s opinions are unreliable and should be excluded because his methodology
to determine the cause of death is unsupported. Id. at 6-7. Plaintiff’s third argument is that Dr.
Shuman’s opinion is unreliable because it relies on a diagnosis that is no longer generally accepted
in the medical community. Id. at 7-9. Plaintiff’s final argument concerns the helpfulness of Dr.
Shuman’s interpretation of the video footage via a timeline included in his report. See id. at 9-10.
Plaintiff asserts that Dr. Shuman should not be allowed to use the timeline in his report that
describes the events that occurred in the footage because it resolves factual matters for the jury
and is inaccurate. Id. The Court addresses each argument in turn.3
A. Reliability
i. 	Whether Dr. Shuman relies on unsupported factual assumptions
In Plaintiff’s view, Dr. Shuman’s opinion that Mr. Desir did not die from manual
strangulation is unreliable and should be excluded because the conclusion was based on several
facts he did not know and made unfounded assumptions regarding. 	[DE 165] at 3-4. 	Plaintiff
elaborates that the unknown and unsupported facts relied on by Dr. Shuman include when Mr.
Desir lost consciousness, when Mr. Desir lost a pulse, and when Mr. Desir’s neck arteries were
being compressed. Id. Plaintiff stresses that these facts cannot be determined by simply watching
the video footage, so this portion of Dr. Shuman’s opinion should be excluded. 	Id. at 4-6.
Defendants respond that Plaintiff misconstrues Dr. Shuman’s methodology as requiring exact
3 Both sides essentially seek to preclude each other’s expert from testifying regarding observations
from the video footage. Compare [DE 164] at 5 (“Dr. Schultz should not be permitted to testify
as to his opinion of what the video surveillance depicts.”), with [DE 165] at 9 (“[Dr.] Shuman’s
timeline, which purports to summarize a series of events that he witnessed on the video, invades
the province of the jury by telling it what it should see and when.”). 	The Court, therefore, will
address Defendants’ motion [DE 164] to limit the testimony of Dr. Schultz regarding the footage
at the same time it addresses Plaintiff’s similar motion directed at Dr. Shuman.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 10 of 47

11
knowledge of these facts when it does not. 	[DE 175] at 5-7. 	Defendants also respond that Dr.
Shuman bases his opinion on a sufficient factual basis, and any reliance on a conflicted view of
the facts is an issue going to the weight of the testimony rather than its admissibility. Id. at 6-7.
Except for the portions of Dr. Shuman’s opinion stating when Mr. Desir lost a pulse, Defendants
are correct.
“An expert’s opinion, where based on assumed facts, must find some support for those
assumptions in the record.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801 (6th Cir. 2000).
Likewise, “an expert witness is entitled to rely upon disputed facts so long as those facts find
support in the record.” Guzman v. Holiday CVS, LLC, No. 21-23021-CIV, 2022 WL 10043004,
at *2 (S.D. Fla. Oct. 17, 2022); see also Daubert, 509 U.S. at 590 (requiring subject of expert
testimony to be more than “subjective belief or unsupported speculation”). 	Where an expert’s
opinion does find some factual support in the record, “[a]ny weaknesses in the factual
underpinnings of [the expert’s] opinion go to the weight and credibility of his testimony, not to its
admissibility.” Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1285 (11th Cir. 2015) (quoting
Hurst v. United States, 882 F.2d 306, 311 (8th Cir. 1989)) (second alteration in original).
Here, Plaintiff’s argument—that Dr. Shuman’s opinion is unreliable because he cannot
identify critical facts—fails primarily because it misconstrues Dr. Shuman’s methodology.
Plaintiff indicates that, under Dr. Shuman’s methodology, knowing facts like when Mr. Desir lost
consciousness or lost a pulse are “essential to his analysis.” 	[DE 165] at 2. 	But as Defendants
point out, Dr. Shuman’s opinion does not require undisputed knowledge of these facts. [DE 175]
at 6-7. Rather, Dr. Shuman’s opinion is based on a few key premises that can ultimately be applied
to observations from the video footage: (1) a loss of consciousness occurs after around ten to fifteen
seconds of complete compression of the carotid arteries (i.e., where blood flow to the brain is fully
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 11 of 47

12
restricted); (2) after a loss of consciousness, one must sustain compression on the carotid arteries
for at least another couple of minutes to cause death; and (3) someone cannot have lost
consciousness if they are actively moving or resisting. [DE 175-1] at 93-96; see [DE 165-1] at 5.
Applying these premises, Dr. Shuman notes that “[t]here is no 10 to 15 second period
during the restraint where the corrections officer’s hands were on his neck prior to when he stopped
resist[ing] or appeared to have lost consciousness.” [DE 165-1] at 5. Dr. Shuman also notes that
the officer’s hands came off Mr. Desir’s neck “multiple times.” 	[DE 175-1] at 96. 	Critically,
under Dr. Shuman’s approach, the continued compression after a loss of consciousness cannot
occur if Mr. Desir is still moving or resisting and thus not unconscious. Dr. Shuman used the point
at which Mr. Desir stops moving or resisting in the footage as the earliest point that Mr. Desir
could have been unconscious while also recognizing the unconsciousness could have occurred
even later. Id. at 80-81. Because nobody appears to keep their hands on Mr. Desir’s neck for a
period of at least two minutes after Mr. Desir stops moving, Dr. Shuman concludes that manual
strangulation cannot be the cause of death. In other words, according to Dr. Shuman, this cause
of death has a few necessary conditions, and those necessary conditions never occurred. Contrary
to Plaintiff’s position, this analysis does not require knowledge of the exact amount of compression
occurring on the carotid arteries because Dr. Shuman arrives at his conclusion even assuming
complete compression occurs whenever the officer’s hands are on Mr. Desir’s neck. See [DE 165-
1] at 5. Because Dr. Shuman is relying on his observations from the video footage itself to see if
the necessary conditions for death by manual strangulation occurred, his conclusion is based on
sufficient factual support in the record. 	See McLean, 224 F.3d at 801; Guzman, 2022 WL
10043004, at *2.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 12 of 47

13
In addition, whether the footage supports Dr. Shuman’s identification of the points when
certain events occurred—or whether the totality of evidence suggests that Mr. Desir lost
consciousness and had his carotid arteries compressed at different points—is for the jury to decide.
An opinion is not excludable for being based on a particular version of disputed facts. Feliciano
v. City of Miami Beach, 844 F. Supp. 2d 1258, 1265 (S.D. Fla. 2012) (“An expert is . . . permitted
to base his opinion on a particular version of the disputed facts and the weight to be accorded to
that opinion is for the jury.” (alteration in original) (quoting Walker v. Gordon, 46 F. App’x 691,
695-96 (3d Cir. 2002))). Whether Dr. Shuman relied on an incorrect view of the facts goes to the
weight of the testimony, not its admissibility. See Sorrels, 796 F.3d at 1285.
Even so, Dr. Shuman does concede that he cannot determine when Mr. Desir lost a pulse
from the footage. [DE 175-1] at 98-99. Although Mr. Desir’s supposed loss of a pulse is included
as an additional basis in Dr. Shuman’s report to conclude that “compression of [Mr. Desir’s] neck
did not result in the cardiopulmonary arrest[,]” knowing when Mr. Desir lost a pulse is not
necessary for Dr. Shuman to rule out manual strangulation as the cause of death under his
methodology. 	Even if Dr. Shuman has no sufficient basis in the record to determine when Mr.
Desir lost a pulse, the analysis that there was no sustained compression for a sufficient period after
a loss of movement or resistance, which Dr. Shuman states is the earliest time when Mr. Desir
could have lost consciousness, still can independently rule out manual strangulation as the cause
of death under Dr. Shuman’s methodology. 	So the lack of knowledge of this fact does not
undermine Dr. Shuman’s overall opinion.
In sum, Dr. Shuman’s inability to pinpoint the exact moments where there was a loss of
consciousness, a loss of a pulse, or a complete compression of Mr. Desir’s arteries does not
undermine Dr. Shuman’s core analysis and conclusion. 	Dr. Shuman’s testimony will not be
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 13 of 47

14
generally excluded on this basis. However, Dr. Shuman cannot testify as to when Mr. Desir lost
a pulse because his analysis on this point lacks adequate support in the record.
ii. 	Whether Dr. Shuman’s analysis relies on a faulty methodology
Plaintiff argues that “[Dr.] Shuman’s method for determining whether Mr. Desir died by
strangulation is not reliable because measuring the time between compression of carotid arteries
and loss of consciousness is not a reliable method for determining whether strangulation causes
cerebral asphyxia.” [DE 165] at 6. As alluded to above, this framing partially misconstrues the
true nature of Dr. Shuman’s analysis and thus does not persuade the Court that Dr. Shuman’s
opinion should be excluded on this basis. However, Plaintiff also takes issue with the supposed
sources that Dr. Shuman relied on for his assertion that complete compression of both carotid
arteries will result in one losing consciousness in around ten to fifteen seconds. Id. Plaintiff thinks
that this assertion lacks adequate support, making the opinion unreliable. 	[DE 165] at 6-7. 	In
addition, Plaintiff claims that Dr. Shuman “failed to note that he relied on his education, training,
or experience to determine the time it takes to lose consciousness due to carotid artery
compression.” 	[DE 165] at 6. 	Defendants respond that Dr. Shuman reliably based his
methodology on “experimentation” that had been conducted4 on volunteers, prior literature that
Dr. Shuman did not re-review to make the opinion, and his own training and experience. [DE 175]
at 7-8.
As explained earlier, the Court’s gatekeeping responsibilities require it to do more than
simply take the expert’s word for it when assessing whether the chosen methodology is reliable.
Frazier, 387 F.3d at 1261. 	The proponent of the expert must show that the methodology is
4 	Dr. 	Shuman’s 	deposition 	testimony 	does 	not 	make 	clear 	who 	exactly 	conducted 	the
experimentation.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 14 of 47

15
sufficiently reliable for the expert opinion to be admissible. Phillips v. Am. Honda Motor Co., 238
F. App’x 537, 540 (11th Cir. 2007) (citing id. at 1260). Showing sufficient reliability requires that
one’s expert do more than state that he used the “scientific method” to reach his conclusions.
Umana-Fowler v. NCL (Bahamas) Ltd., 49 F. Supp. 3d 1120, 1122 (S.D. Fla. 2014). Likewise,
although an expert witness’s experience (or training) can be a sufficient basis for expert testimony,
Jones v. Webb, 516 F. App’x 762, 765 (11th Cir. 2013), “an expert cannot rely on ‘experience’
without explaining in detail how the experience and other materials consulted support the opinion
rendered.” Umana-Fowler, 49 F. Supp. 3d at 1122 (citing Frazier, 387 F.3d at 1265).
Here, Plaintiff’s argument that Dr. Shuman’s opinion is unreliable for failing to cite a
specific study for the assertion that it takes ten to fifteen seconds of compression to cause a loss of
consciousness is unavailing. The Court finds it clear that Dr. Shuman was reliably drawing on his
experience and training, along with his familiarity with prior studies and literature, even if he did
not specifically cite them by name or re-review them to form his opinion in this matter. Moreover,
contrary to Plaintiff’s contention, Dr. Shuman stated in his report that “[a]ll opinions are to a
reasonable degree of medical certainty based on [his] education, training, and experience.”
[DE 165-1] at 5. 	Dr. Shuman’s deposition testimony similarly makes clear that his assertion
regarding the duration of time it takes for complete compression of the carotid arteries to cause a
loss of consciousness is based on his “experience and past readings.” [DE 175-1] at 91.
The Court also finds that Dr. Shuman does more than just claim reliance on his experience
and training alone—without any explanation or support—to conclude that Mr. Desir did not die
from manual strangulation. 	See Umana-Fowler, 49 F. Supp. 3d at 1122. 	Dr. Shuman instead
explains that the literature and experimentation previously reviewed by him indicate that a loss of
consciousness occurs in around ten to fifteen seconds of complete compression of the carotid
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 15 of 47

16
arteries. This premise is not rendered unreliable and excludable purely because Dr. Shuman did
not cite the independent studies or review them again before making his opinion. See Greene v.
Bd. of Regents of Univ. Sys. of Ga., No. 4:21-CV-277, 2023 WL 5837501, at *12 (S.D. Ga. Sept.
8, 2023) (“While experts frequently base their opinions on professional research or literature,
“[t]here is no inherent requirement that a medical expert cite or reference independent studies that
support [his or] her conclusions.” (alterations in original) (quoting Smith v. Bama Urgent Med.,
Inc., No. 08-CV-1546, 2011 WL 8635359, at *4 (N.D. Ala. July 20, 2011))). 	Dr. Shuman
adequately explains in his report and deposition testimony how he applied this premise on loss of
consciousness to his observations from the video footage, which helped form his conclusion that
manual strangulation was not the cause of Mr. Desir’s death.
Notably, Plaintiff’s cause-of-death expert, Dr. Schultz, alluded to what these loss-of-
consciousness studies could be during his second deposition on October 7, 2024, explaining that
older experimentation was done on dogs and prisoners or mentally ill people. [DE 164-2] at 73.
Dr. Schultz stated that “when it comes to humans and how long it takes to die without oxygen,
there are no studies other than ones that happened during [older] times like that . . . .” Id. But a
lack of extensive or more modern literature in a field is not automatically enough of a reason to
exclude testimony for being unreliable. 	See Schenone v. Zimmer Holdings, Inc., No. 3:12-CV-
1046-J-39MCR, 2014 WL 9879924, at *11 (M.D. Fla. July 30, 2014) (“Where there are other
factors that demonstrate the reliability of the expert’s methodology, an expert opinion should not
be excluded simply because there is no literature on point.” (quoting Schneider ex rel. Est. of
Schneider v. Fried, 320 F.3d 396, 406 (3d Cir. 2003))).
Any criticism that Plaintiff and his expert may have regarding Dr. Shuman’s reliance or
lack of reliance on certain sources goes to the weight that the testimony should be afforded by the
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 16 of 47

17
jury, and Plaintiff is free to cross-examine Dr. Shuman on this issue to discredit his ultimate
opinion. However, the Court will not exclude the testimony on this basis.
iii. 	Whether Dr. Shuman’s opinion is based on an unreliable diagnosis
According to Plaintiff, Dr. Shuman’s opinion and testimony consisted of stating that Mr.
Desir was in a state of “excited delirium,” a cause of death or diagnosis that is no longer generally
accepted in the medical community. [DE 165] at 7. Plaintiff insists that, even though Dr. Shuman
stated he was expressly not claiming excited delirium syndrome as a diagnosis or cause of death,
Dr. Shuman’s use of different terminology for the same flawed diagnosis just because of the
backlash against it does not eliminate the problem: “the clinical condition only describes signs and
symptoms rather than identifying underlying etiologies.” Id. at 8. By contrast, Defendants argue
that Dr. Shuman did not opine that Mr. Desir was in a state of excited delirium and did not base
his findings on such a diagnosis. 	Defendants reiterate that Dr. Shuman’s opinion is that “Mr.
Desir’s psychotic state, as well as the restraint, caused his death.” [DE 175] at 9.
The Court rejects Plaintiff’s argument regarding excited delirium syndrome. Although
Plaintiff notes that “excited delirium” is a term that has faced some recent backlash from the
medical community, Dr. Shuman explained that he was not using that term precisely because it
had “fallen out of favor.” 	[DE 165-1] at 3-4; [DE 175-1] at 38. 	Indeed, Dr. Shuman himself
acknowledges that one of the issues with the term is that “there’s no uniform definition of
it.” 	[DE 175-1] at 38. 	However, he asserted that the overall idea regarding the effects of
psychosis—i.e., that psychosis, along with the brain-chemical reaction to it, could contribute to
cardiac arrhythmia and later cardiac arrest—still held. In his report, Dr. Shuman even mentioned
other accepted syndromes or diagnoses that have similar presentations in people. See [DE 165-1]
at 3-4.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 17 of 47

18
Put bluntly, nothing in Plaintiff’s motion undermines Dr. Shuman’s medical explanation
that the increased release of catecholamines from undergoing a psychotic episode, combined with
the increased release of catecholamines that one would expect from fighting against restraint, puts
one at a higher risk of cardiac arrhythmia. 	See [DE 175-1] at 41. 	Although Dr. Shuman said
during his deposition that one could possibly die from excited delirium syndrome alone, he is
asserting in this case that Mr. Desir’s state of psychosis was an “additive feature,” combined with
Mr. Desir’s reaction to being restrained, that caused Mr. Desir’s death. Id. at 40-42.
Whilst Plaintiff cites authorities that seemingly support a move away from the “excited
delirium” terminology, he does not present specific authority showing that Dr. Shuman’s medical
explanation itself has been undermined. 	In fact, the sources cited by Plaintiff appear to be
consistent with Dr. Shuman’s explanation that the term is being discarded in part because it is ill-
defined. 	For example, the cited statement from the College of American Pathologists indicates
that “excited delirium” should not be used as a medical diagnosis and should not be listed as a
cause of death. 	Press Release, Coll. of Am. Pathologists, CAP Supports Discontinuing Term
“Excited Delirium” as Cause of Death (Oct. 13, 2023), https://newsroom.cap.org/latest-news/cap-
supports-discontinuing-term--excited-%20delirium--as-cause-of-death/s/c29dd694-6877-428a-
95b4-d5fc5c0d82cc. 	But Dr. Shuman did not use “excited delirium” as a diagnosis or cause of
death. 	Rather, he relied on Mr. Desir’s history of psychiatric illness,5 see [DE 165-1] at 2, and
listed the cause of death as “anoxic/ischemic encephalopathy due to cardiopulmonary arrest during
restraint for acute psychosis,” id. at 5. Elsewhere, Dr. Shuman stated in similar fashion that the
restraint, in conjunction with Mr. Desir’s state, was the cause of death—i.e., “cardiopulmonary
arrest during restraint for acute psychosis.” [DE 175-1] at 42.
5 Plaintiff does not seem to challenge Dr. Shuman’s characterization of Mr. Desir’s medical
records.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 18 of 47

19
Plaintiff’s cited statement from the American Medical Association (“AMA”) similarly
describes the problem of using “excited delirium” as an official diagnosis as being that the term
has no “clear set of diagnostic criteria”—again consistent with Dr. Shuman’s description—and
warns against using it as a justification for intervention with sedatives. Press Release, Am. Med.
Ass’n, 	New 	AMA 	Policy 	Opposes 	“Excited 	Delirium” 	Diagnosis 	(June 	14, 	2021),
https://www.ama-assn.org/press-center/ama-press-releases/new-ama-policy-opposes-excited-
delirium-diagnosis. However, the AMA’s statement does not address the possible consequences
of a psychotic episode on brain chemistry or the potential increased risk of cardiac arrythmia. See
id.
The position of the American College of Medical Toxicology (“ACMT”) that Plaintiff cites
takes issue with the term “excited delirium” as being “used in multiple distinct contexts with
various underlying causes,” including when a person may be intoxicated with psychoactive
substances. Press Release, Am. Coll. of Med. Toxicology, ACMT Position Statement on End the
Use of Excited Delirium (May 1, 2023), https://www.acmt.net/news/acmt-position-statement-on-
end-the-use-of-excited-delirium/. 	Like the other citations, rather than undermine the possibility
that Mr. Desir’s psychotic state contributed towards cardiopulmonary arrest, as Dr. Shuman
opines, the ACMT position urges a shift away from “excited delirium” to different terms, such as
“hyperactive delirium with agitation.” Id. In short, the dispute Plaintiff raises appears to be, like
Defendants suggest, more one over terminology rather than actual analysis.
At the very least, whatever concerns Plaintiff may legitimately have over the use of the
term “excited delirium” do not so undermine the reliability of Dr. Shuman’s analysis that it cannot
be presented to the jury. 	Even assuming that Dr. Shuman’s opinion is the minority view in the
medical community and not generally accepted, general acceptance is only one factor under
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 19 of 47

20
Daubert. See 509 U.S. at 588 (“Nothing in the text of . . . Rule [702] establishes ‘general
acceptance’ as an absolute prerequisite to admissibility.”); see also United States v. Brown, 415
F.3d 1257, 1268 (11th Cir. 2005) (stating that expert testimony failing to meet “all or most”
Daubert factors can still be admissible); cf. Kleiman v. Wright, No. 18-CV-80176, 2020 WL
6729362, at *34 (S.D. Fla. Nov. 16, 2020) (“And the mere fact that Dr. Eggington adheres to a
different school of thought regarding [linguistic] forensic analysis does not compel the conclusion
that 	Dr. 	Leonard’s 	analysis 	is 	unreliable 	or 	fundamentally 	flawed.”). 	Moreover, 	mere
disagreement between possible experts is not enough to exclude an expert opinion. 	See United
States v. Gutierrez, No. 21-13791, 2023 WL 3620891, at *4 (11th Cir. May 24, 2023). Because
Dr. Shuman adequately explains the effects of psychosis on one’s brain chemistry and how it
interacts with being subjected to restraint and can contribute to negative health consequences, the
Court will not exclude Dr. Shuman’s opinion and testimony based on a few press releases6 relating
to excited delirium syndrome.
6 The non-binding cases from other district courts that Plaintiff cites do not compel a different
conclusion. 	Plaintiff cites these cases for the proposition that “courts have similarly rejected
‘excited delirium’ as a medical diagnosis and cause of death . . . .” [DE 165] at 8. Plaintiff’s first
citation does not even address excited delirium at all. See generally Berger v. Spokane County,
No. 15-CV-140, 2017 WL 5639939 (E.D. Wash. Jan. 5, 2017). If Plaintiff meant to cite Estate of
Berger v. Spokane County, No. 15-CV-140, 2017 WL 5639941 (E.D. Wash. June 16, 2017), that
case still does not suggest that excited delirium syndrome itself is an unreliable diagnosis. Rather,
the Court excluded an expert’s testimony because of deficiencies that tainted the particular expert,
not the use of excited delirium syndrome as a diagnosis generally. 	See id. at *2. 	In the other
citation, which consists of a court’s findings of fact and conclusions of law following a bench trial,
the court found that the decedent did not experience excited delirium syndrome. Petro v. Town of
W. Warwick ex rel. Moore, 889 F. Supp. 2d 292, 318 (D.R.I. 2012). It rejected a certain expert’s
testimony because no sources supported that expert’s contention that excited delirium syndrome
can arise instantly in response to police involvement when agitation was not present prior. Id. at
317. Further, the Court rejected the expert’s contention that excited delirium syndrome was not a
“diagnosis of exclusion” because that same expert had previously testified that death by excited
delirium required a negative autopsy (i.e., an autopsy where there are no other independent
indicators of conditions sufficient to cause death), so the diagnostic criteria for excited delirium
were not met. 	Id. at 317-18. 	These cases do not move the needle for Plaintiff, nor do policy
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 20 of 47

21
B. Helpfulness of Dr. Schultz’s and Dr. Shuman’s observations from the footage
Both Plaintiff and Defendants seek to exclude each other’s cause-of-death experts from
testifying about their observations from the video footage of the incident. 	For example,
Defendants seek a ruling preventing Dr. Schultz from “commenting upon or interpreting what is
factually depicted in the video surveillance footage.” [DE 164] at 2. Defendants argue that such
testimony would be improper because the jury must determine what the footage depicts, and Dr.
Schultz’s status as an expert may make his characterization of the footage come to the jury with
an improper “air of authority.” Id. at 5-6. Plaintiff responds that the proposed testimony about
Dr. Schultz’s observations of the video evidence is permissible lay witness testimony and not
expert testimony, so it should be allowed.7 [DE 176] at 2.
On the flipside, Plaintiff’s motion argues that the chart in Dr. Shuman’s report, which
contains “a timeline of assumptions to support his forensic opinions,” should be excluded because
it “invades the province of the jury by telling it what it should see [on the footage] and when.”
[DE 165] at 9. 	According to Defendants,8 Dr. Shuman provides an explanation of the medical
decisions in California, Colorado, and Minnesota to create legislation regarding excited delirium
syndrome.
7 The Court is unpersuaded by this argument because Plaintiff explicitly wants Dr. Schultz’s
testimony on the footage to “give the jury a clear understanding of what they are looking at in the
video[,]” as “[m]atters of neck compressions, carotid arteries, and jugular veins are beyond the
understanding an experience of the average lay citizen.” [DE 176] at 3. Admissible lay opinions
do not rely on scientific or specialized knowledge, so Plaintiff’s distinction ultimately breaks
down. See Fed. R. Civ. P. 701(c).
8 Defendants attempt to explain the seemingly conflicting positions in its briefing on two different
motions with this vague statement: “The distinction between forming an opinion based on
observations versus forming an opinion on what is being observed is integral . . . .” [DE 175] at 4
n.4. 	That is true, as far as it goes. 	However, Defendants do not convincingly explain why Dr.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 21 of 47

22
significance of what he observes on the video (which necessarily requires reference to what he
observed) and Dr. Shuman is no less entitled to explain the medical significance of his observations
just because video evidence underpins the testimony. 	[DE 175] at 10. 	Even so, Defendants
concede that Dr. Shuman cannot give an opinion on what the correct interpretation of the video
footage would be. Id. at n.5.
Some courts have held that an expert’s testimony should be excluded or limited where the
expert is no better suited than the jury to interpret a video’s content. E.g., Prosper v. Martin, 989
F.3d 1242, 1249-50 (11th Cir. 2021) (holding that district court did not abuse its discretion by
excluding expert’s interpretation of a video as unhelpful because jury could see for themselves that
video depicted little more than “gross movements”). 	In these cases, courts emphasize that
“testimony from an expert is not helpful to the jury if it simply states what the expert sees or hears
on the recording.” 	Harris v. Wingo, No. 2:18-CV-17-FTM-29MRM, 2021 WL 5028201, at *4
(M.D. Fla. Oct. 29, 2021) (citing Prosper, 989 F.3d at 1250); see also Lee v. Andersen, 616 F.3d
803, 808-09 (8th Cir. 2010) (affirming exclusion of expert testimony that decedent was not holding
firearm because expert interpreted images through “simple observation,” and “the jury was entirely
capable of analyzing the images and determining whether [decedent] had anything in his hands”).
Relatedly, this Court has refused to let an expert give a general overview of a video when that
video “speaks for itself.” Birren v. Royal Caribbean Cruises, LTD., No. 20-CV-22783, 2022 WL
446207, at *10 (S.D. Fla. Feb. 14, 2022) (“[Expert] opinions partly relying on the CCTV footage
in conjunction with other materials are helpful to the jury and admissible. However, . . . Mr.
Hanson will not be permitted to give a general overview of the CCTV footage itself since the
Shuman’s challenged testimony goes in the former category while Dr. Schultz’s belongs in the
latter category.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 22 of 47

23
CCTV footage speaks for itself.” (citation omitted)). An expert’s observations from a video must
instead be connected to the specialized knowledge of the expert for it to be helpful to the jury. See
Jackson v. Catanzariti, No. 6:12-CV-113, 2019 WL 2098991, at *9-10 (S.D. Ga. May 14, 2019)
(“Mr. Atherton does not connect his observations from the handheld video to his corrections
experience and expertise such that his proposed testimony would be helpful to the trier of fact.”).
The Court concludes here that Dr. Shuman and Dr. Schultz may explain their reliance on
the footage and reference the observations they made to formulate their respective conclusions
because such testimony does more than just state what is seen. Indeed, Dr. Shuman and Dr. Schultz
are not being presented to the jury solely to construct a factual narrative or simply tell the jury
what it should see on the video. Rather, each is opining on Mr. Desir’s cause of death, and the
video footage—in conjunction with other materials—helped each expert form or confirm their
respective conclusions. 	In trying to explain the complicated scientific elements at play in Mr.
Desir’s death, reliance on the video footage is but one piece of the puzzle. Preventing either expert
from explaining their reliance on the footage generates more of a risk of confusing the jury rather
than a risk of prejudicing it. 	Additionally, any risk of the jury giving undue weight to either
expert’s interpretation of the video footage is mitigated by the fact that both sides will have a
cause-of-death expert doing the same thing.
Still, what Dr. Shuman and Dr. Schultz cannot do is simply give a general overview of the
video footage that is untethered from scientific analysis. Giving such an overview would not be
helpful because “it [would] not offer anything the jury could not discern on its own.” Prosper,
989 F.3d at 1249. In that scenario, the video “speaks for itself.” See Birren, 2022 WL 446207, at
*5-10. But each expert’s opinion, which is partly based on the footage, does not speak for itself,
making it admissible. 	See id. at *5. 	Therefore, when it comes to discussing the footage, both
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 23 of 47

24
motions will be granted in part and denied in part. Each expert is free to note and explain their
reliance on the footage in forming or confirming their opinions—including what certain
observations may mean from a medical cause-of-death standpoint. Each expert’s reference to what
they observed on the video should be accompanied by presentation of the video itself.9 	For
example, if Dr. Shuman relies on his chart to explain his observations, he may do so in conjunction
with pointing to the spots on the video that support his chart. If either expert observes that a certain
portion of the video shows (or does not show) a defendant’s hands on Mr. Desir’s neck, the expert
can and should point out on the actual video what he sees. The opposing party is free to cross-
examine the expert to attempt to show that the video does not actually show what the expert is
describing and attempt to discredit that testimony and reliance on the footage. To the extent the
parties are concerned that the jury will give undue weight to what one of the experts says he sees
on the video, rather than relying on their own observations, simply because the testimony comes
from someone who is qualified as an expert, the appropriate remedy is for the parties to prepare a
joint proposed limiting instruction explaining to the jury that they, not either side’s expert, are
ultimately responsible for determining what the video footage depicts based on their own
observations.
In sum, neither expert can give a mere general overview of their interpretation of the video.
However, both experts can identify, in conjunction with the video itself, the particular observations
that are connected to their medical analysis. Further, if one of the parties feels that the testimony
9 It goes without saying that proving the contents of the video footage requires showing the footage
to the jury rather than relying on an expert’s description of it. Fed. R. Evid. 1002 (“An original
writing, recording, or photograph is required in order to prove its content unless these rules or a
federal statute provides otherwise.”).
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 24 of 47

25
is venturing into just a general overview of the video, without any linkage to a medical explanation,
those objections are within the discretion of the trial judge.
III. 	AUBREY LAND
Mr. Land is Defendants’ use-of-force expert and has over three decades of experience in
law enforcement, which includes experience reviewing use-of-force incidents. [DE 166-1] at 2-3.
He intends to offer six opinions in this case. See id. at 6-10. The first five opinions address whether
the force used by the officers at different points was “objectively reasonable.” Id. at 6-9. The last
opinion addresses whether specific policies of the Broward Sheriff’s Office are “sound policies.”
Id. at 10. 	Challenging Mr. Land on the grounds of qualifications, reliability, and helpfulness,
Plaintiff asks the Court to exclude Mr. Land’s opinions in their entirety (or at least limit his
testimony). [DE 166] at 10. The Court declines to exclude Mr. Land from testifying entirely, but
it will limit the opinions in the ways described below.
A. Qualifications
Plaintiff argues that Mr. Land is not qualified because his experience as a corrections
officer is “too thin and outdated” and his tenure at the Florida Office of the Inspector General
cannot make up for the shortfall. [DE 166] at 2-3. Even though Mr. Land’s duties at the Inspector
General included reviewing use-of-force incidents at correctional facilities, Plaintiff stresses that
most of Mr. Land’s work at the Inspector General involved investigating white-collar crimes. Id.
Defendants respond that Mr. Land has worked in law enforcement and corrections for over three
decades, has reviewed numerous use-of-force incidents, and has served as a use-of-force expert in
other cases. [DE 180] at 4-5.
The Court agrees with its sister district and concludes that “Mr. Land is qualified to testify
competently regarding corrections officers’ practices in this case.” Robinson v. Lambert, No.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 25 of 47

26
615CV1896ORL22LRH, 2019 WL 7971852, at *4 (M.D. Fla. Dec. 18, 2019) (denying Daubert
motion to exclude Aubrey Land as expert on use of reasonable force by corrections officers during
relevant time). 	Even upon an independent review of Mr. Land’s qualifications, the Court
concludes that Mr. Land is at least “minimally qualified” based on his thirty-plus years of law
enforcement experience, which includes investigating multiple instances of excessive force in
Florida correctional facilities. See Hendrix v. Evenflo Co., 255 F.R.D. 568, 578 (N.D. Fla. 2009)
(“[S]o long as the expert is at least minimally qualified, gaps in his qualifications generally will
not preclude admission of his testimony, as this relates more to witness credibility and thus the
weight of the expert’s testimony, than to its admissibility.” (citing Trilink Saw Chain, LLC v.
Blount, Inc., 583 F. Supp. 2d 1293, 1304 (N.D. Ga. 2008))), aff’d sub nom. Hendrix ex rel. G.P. v.
Evenflo Co., 609 F.3d 1183 (11th Cir. 2010); Feliciano, 844 F. Supp. 2d at 1262 (quoting Clena
Invs., Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012)); see also Ideal Image
Dev. Corp. v. Idealaser Hair Removal Corp., No. 18-20927-CIV, 2019 WL 13064755, at *1 (S.D.
Fla. Aug. 28, 2019) (“An expert is not necessarily unqualified simply because [his] experience
does not precisely match the matter at hand.” (alteration in original) (quoting J.G. v. Carnival
Corp., No. 12-21089-CIV, 2013 WL 752697, at *3 (S.D. Fla. Feb. 27, 2013))). 	Plaintiff’s
challenges as to the true extent of Mr. Land’s experience go toward the weight of the testimony
rather than its admissibility, and Plaintiff can cross-examine Mr. Land on that basis.
B. Reliability
Plaintiff argues that all six of Mr. Land’s opinions are “devoid of even the most cursory of
analyses” and that admitting his testimony would require the Court to “take Mr. Land’s word for
it.” [DE 166] at 4. Regarding the use-of-force analysis, Plaintiff criticizes Mr. Land of failing to
identify specific standards beyond the “totality of the circumstances” and glossing over certain
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 26 of 47

27
factors. See, e.g., id. at 5. Defendants resist Plaintiff’s implied suggestion that a specific standard
exists for each aspect of a use-of-force analysis beyond the totality of the circumstances, instead
stating that Mr. Land’s methodology of looking to the totality of the circumstances is acceptable
under prevailing standards. [DE 180] at 6. As support, Defendants rely on Mr. Land’s testimony
indicating that the appropriate standard is the totality of the circumstances and that there would be
no way to write a more specific standard for each situation that could possibly occur. Id. at 6-7.
According to Defendants, Mr. Land also properly identified and applied numerous factors in his
deposition that inform the totality of the circumstances analysis. Id.
The Court concludes that Mr. Land’s testimony is sufficiently reliable to be admissible.
Mr. Land testified that he relied on the totality of the circumstances. See, e.g., [DE 180-1] at 51-
53. 	According to Mr. Land, analyzing the totality of the circumstances is consistent with the
industry standards incorporated by the American Correctional Association’s standards and the
Florida Model Jail Standards. 	Id. at 55-59. 	Mr. Land also explained that his knowledge of the
prevailing standards is supported by his own training and experience. 	Id. at 50. 	Further, when
assessing this case under the totality-of-the-circumstances standard, Mr. Land testified about
multiple factors that would help inform the inquiry, including whether force was necessary to
accomplish a lawful objective and whether the officers did anything to prevent using force and
deescalate the scenario beforehand. Id. at 50-51. Regarding the actual amount of force used, Mr.
Land explained that the officers can use force to accomplish a set objective, but the amount used
to respond to someone resisting is not any level of force or force that is deadly or could cause great
bodily harm. 	Id. at 120-21, 124-25. 	Because Mr. Land’s testimony highlights multiple factors
under the totality-of-the-circumstances standard (which Mr. Land identifies as the prevailing
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 27 of 47

28
standard in the industry) and connects those factors to facts with some support in the record, the
Court will not exclude the testimony entirely on the basis of reliability.
Even so, Defendants do not substantively address Plaintiff’s arguments as to Mr. Land’s
sixth opinion. See [DE 166] at 8 (arguing that it “lacks adequate analysis and is thus unreliable”).
Mr. Land’s sixth opinion is that certain polices, including the Broward Sheriff’s Office’s use-of-
force, pepper spray, restraint chair, and taser/stun gun polices, are “sound.” [DE 166-1] at 10. At
his deposition, Mr. Land testified that the American Correctional Association’s standards and the
Florida Model Jail Standards are “incorporated into the policies, procedures, and the training
practices of the BSO.” 	[DE 180-1] at 58. 	Mr. Land also testified that these sources discuss
“utilizing good correctional judgment,” “using de-escalation techniques,” and “formalizing a plan
and knowing how . . . to try and move forward.” Id. at 55-56. Accordingly, Mr. Land’s testimony
on his sixth opinion will be limited to describing how the policies he enumerates comply with the
American Correctional Association’s standards and the Florida Model Jail Standards—as well as
how those standards compare to his own experience.
C. Helpfulness
Plaintiff argues that the first five opinions of Mr. Land “plainly invade the province of the
jury by concluding Defendants’ actions were ‘objectively reasonable.’” [DE 166] at 9. Defendants
respond that Mr. Land’s opinions are properly about prevailing standards in the field of law
enforcement rather than mere legal conclusions. [DE 180] at 7-8.
In the use-of-force context, the jury must make the ultimate determination of whether an
officer’s use of force was reasonable. See, e.g., Samples v. City of Atlanta, 916 F.2d 1548, 1551
(11th Cir. 1990). Expert testimony on use of force is not helpful if it simply tells the jury what
result to reach. See Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 28 of 47

29
(citing Fed. R. Evid. 704 advisory committee’s note); Chappell v. Carnival Corp., 666 F. Supp.
3d 1316, 1322 (S.D. Fla. 2023) (quoting Umana-Fowler, 49 F. Supp. 3d at 1122). Accordingly,
the Eleventh Circuit has explained that expert testimony opining explicitly on the reasonableness
of an officer’s actions tends to “invade the province of the jury.” Samples, 916 F.2d at 1551.
Nonetheless, “an expert witness can testify as to the prevailing standards in the field of law
enforcement.” 	United States v. Myers, 972 F.2d 1566, 1577 (11th Cir. 1992) (citing id.). 	An
expert may also testify about supposed compliance or noncompliance with prevailing standards.
See Samples, 916 F.2d at 1551-52; Jimenez v. City of Chicago, 732 F.3d 710, 721 (7th Cir. 2013).
This testimony may include the factors that officers should consider in similar situations. See, e.g.,
Jackson, 2019 WL 2098991, at *11 (“Mr. Atherton may opine on the factors relevant to
hypothetical uses of force, and he may be asked appropriate hypotheticals based on the evidence
adduced at trial.”).
Further, testimony from a use-of-force expert is not categorically excludable just because
police standards are intertwined with the legal standard at issue. 	See Sears v. Rivero, No. 19-
13668, 2022 WL 2291220, at *5 (11th Cir. June 24, 2022) (“The witness does not invade the
province of the jury when his testimony addresses whether force was reasonable or justified if that
testimony is about prevailing standards in the field of law enforcement.” (citation modified));
Jimenez, 732 F.3d at 721 (“When an expert offers an opinion relevant to applying a legal standard
such as probable cause, the expert’s role is ‘limited to describing sound professional standards and
identifying departures from them.’” (quoting West v. Waymire, 114 F.3d 646, 652 (7th Cir.1997));
see also Fed. R. Evid. 704(a) (“An opinion is not objectionable just because it embraces an ultimate
issue.”).
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 29 of 47

30
The Eleventh Circuit helped clarify these limits on use-of-force expert testimony in
Samples. See 916 F.2d at 1551-52. There, the plaintiffs appealed after an unfavorable jury verdict,
arguing that the district court erred in admitting the testimony of the defendants’ use-of-force
expert. Id. at 1551. At trial, defense counsel had asked the expert “whether or not it was reasonable
for the officer to discharge his firearm when David Samples charged him with a knife.” Id. The
expert answered that, in his opinion, the officer acted reasonably. 	Id. 	The Eleventh Circuit
explained that “the literal wording of the question posed tends to call for an answer that would
invade the province of the jury, which in this case was to decide the reasonableness of the officer’s
actions.” Id. However, the Eleventh Circuit affirmed anyway because “the questions leading up
to this testimony, and the manner in which the expert answered the question, properly informed
the jury that the expert was testifying regarding prevailing standards in the field of law
enforcement.” Id. The question was properly based on a hypothetical from the facts in evidence
and framed regarding industry standards, where the expert applied a three-pronged analysis to
address the use of force. Id.; cf. Myers, 972 F.2d at 1577-78 (11th Cir. 1992) (holding that district
court did not err in allowing testimony of lay witness police officer that force was “unjustified”
because witness “properly framed his opinion in accordance with prevailing police standards”);
Sears, 2022 WL 2291220, at *5 (“Pacchioli’s testimony was properly framed in accordance with
the Inspector General’s standards for use of force incidents.”).
Here, five of the six10 opinions offered by Mr. Land are stated in terms of whether the
actions of certain officers were “objectively reasonable.” See, e.g., [DE 166-1] at 6 (“The force
used by BSO deputies was objectively reasonable under the totality of the circumstances.”).
Standing alone, general statements that officers’ actions were “objectively reasonable” would
10 Plaintiff does not appear to challenge the helpfulness of the sixth opinion. See [DE 166] at 8-
10.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 30 of 47

31
appear to “invade the province of the jury” by offering unsupported conclusions regarding the very
thing that the jury is responsible for deciding: the reasonableness of the officers’ actions. Samples,
916 F.2d at 1551. Mr. Land’s testimony thus cannot be introduced without a proper foundation
that frames the opinions for the jury in terms of the prevailing use-of-force standards. See id. at
1551-52.
But Mr. Land did frame his opinions in terms of the prevailing standards in the field of law
enforcement. 	Mr. Land relied on the American Correctional Association’s standards and the
Florida Model Jail Standards. [DE 180-1] at 44, 50. Both, according to Mr. Land, are incorporated
into the Broward Sheriff’s Office’s policies. 	[DE 180-1] at 58. 	Using these standards, he
explained in his deposition that the use-of-force analysis is commonly governed by the “totality of
circumstances” rather than specific standards for each situation. [DE 180-1] at 51-52. The broader
focus on the totality of circumstances, according to Mr. Land, is because there would be no way
to write down a specific standard for every possible use-of-force scenario that could occur. Id. at
56, 80. Mr. Land explained that officers are generally supposed to try and deescalate the situation
and gain compliance after assessing the available facts. 	Id. at 54-55, 58-59. 	When a subject is
resisting a lawful objective, Mr. Land testified that “a reasonable amount of force to accomplish
the set objective is what [officers are] governed by.” Id. at 120. Mr. Land also testified that an
officer could continue to use force until compliance is achieved, but the force permitted when a
subject is merely resisting is not deadly force or force that can cause serious bodily harm. Id. at
124-25. Throughout his deposition, Mr. Land even identified certain factors that would affect the
“totality of the circumstances” analysis, such as whether the force was necessary, whether the
officer did anything to prevent the need to use force, whether the officer did anything to deescalate
the situation, and whether the amount of force used was justified. See, e.g., id. at 50-51.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 31 of 47

32
Consequently, Mr. Land’s first five opinions—which are framed in terms of whether
actions were “objectively reasonable”—are admissible unless defense counsel fails at trial to lay a
foundation that frames these opinions “in the context of the prevailing standards of police
behavior.” Myers, 972 F.2d at 1578 (11th Cir. 1992). In other words, if the foundation laid makes
it clear to the jury that Mr. Land’s testimony relates to general police standards for the use of force
in detention facilities and not the ultimate legal question for the panel, Mr. Land may discuss the
totality-of-the-circumstances inquiry, identify relevant factors that officers would normally
consider, and answer hypotheticals posed to him. Because of the apparent overlap between the
application of the supposed industry standards and the jury question, the ultimate determination of
whether particular questions to Mr. Land call for an objectionable answer will be left up to the
discretion of the trial judge based on how the trial proceeds.
Plaintiff also challenges Mr. Land’s interpretations of the video footage, arguing that the
jury is fully capable of determining what the videos depict. [DE 166] at 9-10. Defendants do not
substantively address this argument beyond noting that, during the deposition, there were “some
improper invitations to Mr. Land to provide opinion testimony interpreting what is depicted in the
footage.” [DE 180] at 5. Without an active effort to connect Mr. Land’s observations from the
video footage to his specialized knowledge, the Court cannot conclude that Defendants met their
burden of establishing that testimony from Mr. Land on what is factually depicted in the video
footage would be helpful to the jury. 	See Jackson, 2019 WL 2098991, at *9-10. 	Accordingly,
unlike the cause-of-death experts, who can connect their observations from the videos to important
aspects of their medical analysis, Mr. Land will not be allowed to testify regarding his observations
from the video footage because the jury is more than capable of determining whether the video
shows things like Mr. Desir resisting without provocation. Even so, the Court emphasizes that Mr.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 32 of 47

33
Land will still be allowed to provide general testimony on the prevailing standards for use of force,
which can include answering hypotheticals based on facts in evidence.
IV. 	PATRICK HURLEY
Mr. Hurley is Plaintiff’s correctional practices and use-of-force expert. See [DE 163-1] at
1. He has around forty years of experience in adult and juvenile corrections. Id. Plaintiff engaged
Mr. Hurley to render an opinion on “whether Mr. Desir was denied access to adequate medical
and mental health care” and “subjected to excessive force” that resulted in Mr. Desir’s death. Id.
Mr. Hurley authored an eighty-two-page report and gave deposition testimony. 	To form his
opinions, he relied on his “education, training, and experience.” Id. at 4. He also relied on other
sources, such as articles, policies, and standards used or written by different people or
organizations. See generally id. The report details the ways in which the actions of the jail staff,
including law enforcement officials, contributed to the escalating use of force that, according to
Mr. Hurley, caused Mr. Desir’s death in the way described by Dr. Schultz in his autopsy report.
See id. at 80-81. Mr. Hurley details numerous alternatives throughout his report and deposition
testimony that would have been preferred. For example, Mr. Hurley’s report states that “[t]here
were other options which could have been used and other techniques which could have changed
the outcome of this event.” Id. at 80. Defendants, however, seek an order excluding the opinions
and proposed testimony of Mr. Hurley. [DE 163] at 2.
A. Qualifications
Defendants do not appear to challenge Mr. Hurley’s qualifications, see [DE 163] at 7-10,
and the Court separately concludes that Mr. Hurley is qualified to testify regarding correctional
practices, which includes testimony on the prevailing standards on use of force, based on his
approximately forty-year career in law enforcement. 	His curriculum vitae indicates he has
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 33 of 47

34
reviewed thousands of use-of-force incidents as well as trained officers on correctional practices,
among other things.
B. Reliability
Defendants make five arguments, three of which challenge the reliability of Mr. Hurley’s
methodology. See [DE 163] at 7-10. First, Defendants argue that the opinions are not the product
of reliable principles or methods because they rely on an “ipse-dixit because-I-said-so approach.”
Id. at 7. Second, Defendants argue that Mr. Hurley’s opinions are overly speculative, and so he
should not be allowed to testify as to what “may” have occurred, what “could have resulted,” and
“what Mr. Desir could have been thinking.” Id. at 8-9. Third, Defendants argue that Mr. Hurley’s
opinions are unreliable because they are internally inconsistent. Id. at 9. The Court disagrees with
all three of these reliability arguments.
The first reliability argument—that Mr. Hurley’s opinions are unreliable for being of the
because-I-said-so variety—is entirely unpersuasive. 	Although “an expert cannot rely on
‘experience’ without explaining in detail how the experience and other materials consulted support
the opinion rendered[,]” Umana-Fowler, 49 F. Supp. 3d at 1122 (citing Frazier, 387 F.3d at 1265),
Mr. Hurley repeatedly connects his experience to other sources and ultimately to his opinions in
the case throughout his eighty-two-page report, see, e.g., [DE 163-1] at 4-7 (describing “common
practice” of routinely checking on and recording information about people when they are placed
in a cell for observation and then assessing record evidence in the case, including with citations to
outside authorities); id. at 15-18 (citing outside authorities for “foundation” of use-of-force
analysis, then explaining Mr. Hurley’s own experience with use of force, and then transitioning
into an application of those principles to record evidence in this case); id. at 18 (noting how
“[r]obust training in the correctional setting” will include having staff consider “flight/fight/freeze”
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 34 of 47

35
responses by inmates, adjust their approach, and try to communicate with the inmate—standards
which Mr. Hurley then applies to an officer’s actions toward Mr. Desir); id. at 20 (describing
“Snowball Effect” that Mr. Hurley uses to train officers on how an officer failing to recognize a
“flight/freeze or flight” response can lead to escalating uses of force that “spiral out of control”
and applying concept to an officer’s actions toward Mr. Desir); id. at 41 (“[T]he hand placement
on the back of Mr. Desir’s neck was a possible trigger point and should have been avoided. I know
of no defensive tactics or escort tactics which begin with a deputy’s hand placement on the back
of inmate’s neck.”).
As Plaintiff points out, Mr. Hurley’s deposition testimony also adequately connects his
experience and training to his opinions. 	See, e.g., [DE 163-2] at 25 (“No, there is no specific
standard that says it needs to take five minutes, 10 minutes or those parameters that I’m aware of.
In my experience it’s not going to be 10 seconds or 30 seconds.”); id. at 28 (“In the negotiation
trainings that I’ve received and taught when you introduce new negotiators one right after the other
it’s like turning your computer on and off or pushing the restart button repeatedly. It can set de-
escalation back rather than moving it forward.”); id. at 42 (“[P]lacement on the back of the neck
is not a common escort technique. It’s not trained anywhere that I know of nor according to the
testimony of the deputies they were not trained to do that either.”); id. at 51 (“And it’s pretty
common in corrections training, law enforcement training that techniques associated with hand
placement, arm placement in those areas are reserved for only those times when somebody’s life
is in danger or of imminent serious harm or death.”). Simply put, “[Mr. Hurley’s] testimony is not
of the ‘I’m an expert, just trust me’ variety.” Flint v. Scott, No. 16-CV-159, 2018 WL 327166, at
*2 (M.D. Ga. Jan. 8, 2018).
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 35 of 47

36
The second reliability argument—that Mr. Hurley’s opinions are speculative, and he should
not be allowed to testify as to what “may” have occurred, what “could have resulted,” and “what
Mr. Desir could have been thinking”—is likewise unpersuasive to the Court. 	What may have
occurred and could have resulted are hypotheticals. 	Expert witnesses can answer hypothetical
questions or discuss hypothetical scenarios without the testimony becoming impermissible
speculation. See United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (“The ability
to answer hypothetical questions is the essential difference between expert and lay witnesses.”
(citation modified)); Jackson, 2019 WL 2098991, at *11 (“Mr. Atherton may opine on the factors
relevant to hypothetical uses of force, and he may be asked appropriate hypotheticals based on the
evidence adduced at trial.”). 	Regarding the supposed speculation about “what Mr. Desir could
have been thinking,” Plaintiff is right that Mr. Hurley can discuss the observations a reasonable
officer would make under prevailing standards based on what was observed, even if Mr. Hurley
could not reliably testify as to what Mr. Desir was actually thinking.
For Defendants’ third reliability argument, which asserts that Mr. Hurley’s opinions are
internally inconsistent and thus unreliable, the Court is unconvinced. Although Defendants assert
that Mr. Hurley “willfully chooses to selectively ignore certain materials,” [DE 163] at 9, “[a]n
expert is . . . permitted to base his opinion on a particular version of the disputed facts and the
weight to be accorded to that opinion is for the jury.” Feliciano, 844 F. Supp. 2d at 1265 (alteration
in original) (quoting Walker, 46 F. App’x at 695-96). 	Reviewing the report and testimony as a
whole, rather than through cherry-picked instances, the opinions are not conflicted enough to make
them totally inadmissible. 	Mr. Hurley’s testimony is instead sufficiently reliable and thus the
Court will not exclude his testimony on this basis.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 36 of 47

37
C. Helpfulness
Defendants make two arguments that generally relate to helpfulness. See [DE 163] at 7-8,
9-10. Defendants’ first argument is that Mr. Hurley’s opinions are inadmissible legal conclusions.
Id. at 7-8. Defendants next argue that Mr. Hurley cannot be a conduit for hearsay statements or
other opinion testimony. Id. at 9-10. The Court addresses each argument in turn.
Regarding the first argument, Defendants contend that “expert testimony disputing the
‘existence of arguably superior alternatives’ is not admissible in a confinement setting.” Id. at 8
(quoting Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999)). Campbell itself was quoting
Whitley v. Albers, 475 U.S. 312, 322 (1986). Both cases dealt with excessive-force claims under
the Eighth Amendment, which have a more stringent standard than the excessive-force claims
under the Fourteenth Amendment in this case. See Campbell, 169 F.3d at 1374 (“[I]n Whitley, the
Supreme Court reiterated that force does not violate the Eighth Amendment merely because it is
unreasonable or unnecessary.”); see also Bennett v. Parker, 898 F.2d 1530, 1532-33 (11th Cir.
1990) (addressing Eighth Amendment excessive-force claim under Whitley’s “unnecessary and
wanton infliction of pain” standard). 	Although “a mere dispute over the reasonableness of a
particular use of force or the existence of arguably superior alternatives” would not be
determinative in an Eighth Amendment claim, Whitley, 475 U.S. at 322, reasonableness is the crux
of the question for the jury here in the claims brought under the Fourteenth Amendment, see
Myrick v. Fulton County, 69 F.4th 1277, 1301 (11th Cir. 2023) (“If an officer used objectively
unreasonable force, he or she violated a detainee’s Fourteenth Amendment rights.”); Kingsley v.
Hendrickson, 576 U.S. 389, 400-01 (2015). Defendants’ argument that Mr. Hurley cannot testify
as to better methods fails.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 37 of 47

38
Additionally, to the extent Defendants suggest that offering testimony on alternatives is not
helpful to the jury because it does not actually show whether force was excessive, Mr. Hurley
explained during his deposition, “When there’s other options that would have been effective to
gain control, could have been used and weren’t used I see it [the force] as that [excessive].”
[DE 163-2] at 43. And, as explained in the analysis of Mr. Land, experts can testify regarding the
prevailing standards in law enforcement, along with deviations from those standards and factors
that officers should consider in similar situations. Therefore, as long as a proper foundation can
be laid to indicate that Mr. Hurley is testifying about conformance (or a lack thereof) with
prevailing standards, his testimony is not excludable as mere legal conclusions. See Samples, 916
F.2d at 1551-52. The ultimate decision rests within the trial judge’s discretion.
By contrast, the second helpfulness argument aimed at Mr. Hurley—that he cannot serve
as a conduit for hearsay or other opinion testimony—gains some traction. However, most of what
Defendants write for this argument is paraphrased or quoted caselaw and citations without
substantive analysis. See [DE 163] at 9-10. The only real argument is that “[Mr.] Hurley may not
testify about the opinions of Plaintiff’s pathologist expert, Dr. Schultz.” Id. at 9. As it relates to
one expert referencing another expert’s opinions, an expert may rely on the opinions of other
experts but may not “merely regurgitate” or “parrot” their opinions without independent
verification. Eberli v. Cirrus Design Corp., 615 F. Supp. 2d 1357, 1364 (S.D. Fla. 2009) (“While
it is true that an expert’s testimony may be formulated by the use of the facts, data and conclusions
of other experts, such expert must make some findings and not merely regurgitate another expert’s
opinion.” (citation modified)); La Gorce Palace Condo. Ass’n, Inc. v. Blackboard Specialty Ins.
Co., 586 F. Supp. 3d 1300, 1304, 1306 (S.D. Fla. 2022); Hendrix, 255 F.R.D. at 607 n.75; see also
Am. Key Corp. v. Cole Nat. Corp., 762 F.2d 1569, 1580 (11th Cir. 1985) (“Expert opinions
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 38 of 47

39
ordinarily cannot be based upon the opinions of others whether those opinions are in evidence or
not.”).
Accordingly, Defendants are right that Mr. Hurley may not simply restate Dr. Schultz’s
medical opinion that manual strangulation was Mr. Desir’s cause of death. Moreover, Mr. Hurley
cannot offer a medical opinion on the effects of manual strangulation on the body because he is
not a medical expert. See La Gorce Palace, 586 F. Supp. 3d at 1308 (“[T]he expert may testify
only about matters within the scope of the person’s expertise.”). Even so, Mr. Hurley is still free
to discuss prevailing standards in the field of law enforcement, which includes (but is not limited
to) testimony that (1) explains how techniques involving hand placement around the neck and
other high-risk areas are reserved for very rare circumstances; and (2) lists the observational factors
regarding an inmate’s apparent condition that would inform a reasonable officer’s decision-
making. The motion directed at Mr. Hurley will thus be granted in part.
V. 	DR. DAVID MACPHERSON
Dr. Macpherson is an economist. See [DE 162-1] at 2-3; [DE 162-2] at 5-6; [DE 177-2] at
8-9. Plaintiff intends to offer Dr. Macpherson’s opinion on the present value of the lost economic
support and household services of Mr. Desir to his daughters from when he died to when both
daughters reach age eighteen. [DE 177] at 2-3; [DE 162-2] at 25, 50-51. According to Plaintiff,
the loss of financial support in Dr. Macpherson’s calculations is separate from the financial support
received in the form of government benefits. [DE 177] at 4-5. Dr. Macpherson does not intend to
offer an exact figure on the dollar amount of the lost support to Mr. Desir’s daughters annually.
[DE 162-2] at 37-39. Likewise, Dr. Macpherson does not intend to offer an exact figure on the
time Mr. Desir spent performing household services for his daughters weekly. Id. at 31-34. Dr.
Macpherson instead intends to provide the jury with a “tool,” “benchmark,” or “formula” that
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 39 of 47

40
would enable the jury to calculate the damages amount for the lost support and services based on
the record evidence received at trial. E.g., id. at 31-33, 35-38.
Dr. Macpherson relied on deposition testimony of Mr. Desir’s two daughters and Mr.
Desir’s ex-wife to glean that Mr. Desir had provided financial support and household or other
services to his daughters before he died. 	[DE 162-2] at 28-31, 48. 	The testimony contains
indications that some of the support or services provided by Mr. Desir included things like cooking,
[DE 177-5] at 24-25, shopping, id at 24; [DE 177-4] at 23, sending money for things, [DE 177-4]
at 48, spending time and giving life advice, id. at 23-24, 46-48, helping with homework, id. at 46-
47, and generally providing what his children needed, [DE 177-3] at 54-55.
Regarding the value of lost financial support, Dr. Macpherson calculated the present value
of that lost support based on a factor for every $1,000 lost in a single year. [DE 162-1] at 6-7. To
inform his analysis, Dr. Macpherson relied on, among other things, the consumer price index
projections from the Congressional Budget Office and the zero-coupon U.S. Treasury bond rate
for each year of damages from the Board of Governors of the Federal Reserve System. [DE 162-
1] at 7. 	These figures helped him calculate the present value by accounting for the effects of
inflation and interest rates. 	[DE 162-2] at 54. 	At the time of his report, Dr. Macpherson’s
calculations indicated that the present value of lost economic support to Mr. Desir’s daughters was
$8,861 for every $1,000 lost annually because of Mr. Desir’s death. [DE 162-2] at 8. According
to Dr. Macpherson, the jury can adjust the figure up or down based on the amount of financial
support found in the trial evidence. [DE 162-2] at 39. For example, if the jury finds that Mr. Desir
provided his daughters with $2,000 worth of financial support annually, then the jury could double
Dr. Macpherson’s figure. [DE 162-1] at 6-7.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 40 of 47

41
For the value of lost services, Dr. Macpherson calculated the present value of the services
Mr. Desir allegedly provided to his daughters based on a factor for every hour of services lost in
an average week, enabling a jury to plug in the number of hours the jury finds Mr. Desir normally
spent doing these types of tasks for his daughters per week to get the present value of the loss of
those services. [DE 162-2] at 32-33. Like the calculations for the loss of financial support, a jury
could adjust the one-hour-per-week figure up or down based on what the trial evidence supports.
Id.; [DE 162-1] at 8. Dr. Macpherson explained that he used a conservative figure from the Bureau
of Labor Statistics for the average wage rate for general housekeeping and maid services in the
South Florida area for the rate at which to value a variety of household services (e.g., cooking,
childcare, and tutoring). 	[DE 162-2] at 55-57. 	Dr. Macpherson did not recall reviewing any
evidence showing that Mr. Desir provided housecleaning services. 	Id. at 33. 	According to Dr.
Macpherson, this figure still represents the compensation rate for services roughly of the type that
Mr. Desir was performing for his daughters, id. at 33-35, 64-65, and his figure is meant to be
conservative (explaining that the rate is similar to minimum wage in Florida by 2026), id. at 59-
60. Dr. Macpherson assumed that the rate for many of these services would not vary significantly
from the low wage rate for maid and housekeeping services. Id. at 55-57. Further, Dr. Macpherson
testified that the fact that the daughters moved out of South Florida after Mr. Desir’s passing does
not affect the methodology because the jury could just adjust the figure up or down based on what
the evidence supports. 	Id. at 52. 	At his deposition, Dr. Macpherson indicated that this
methodology was standard for other economists in his field where the exact number of hours of
services provided are unknown at the time. Id. at 66.
Defendants argue that Dr. Macpherson’s opinions and conclusions should be excluded
because they are not based on sufficient facts or data and are not the product of reliable principles
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 41 of 47

42
or methods.11 [DE 162] at 5-8. On the first point, Defendants assert that Dr. Macpherson did not
rely on enough specific facts from the case and at times relies on facts that are irrefutably to the
contrary. Id. at 6-7. As to the second point, Defendants describe Dr. Macpherson’s supposedly
deficient methodology as the following: “All he did was look up the average wages of a maid in
the Miami area and ascribed [sic] that value to every potential service Mr. Desir hypothetically
could’ve/would’ve been providing to his daughters now living in Central Florida for an arbitrary
one hour a week.” Id. at 7. Defendants also cite a prior case in which a district court excluded or
limited the testimony of Dr. Macpherson, which was affirmed by an unpublished Eleventh Circuit
opinion holding that said court did not abuse its discretion.12 [DE 162] at 6. Plaintiff responds
that Dr. Macpherson’s opinions are based on sufficient facts and data, a reliable methodology, and
should not be excluded just because Dr. Macpherson’s opinions were previously excluded in a
case dealing with the probability of receiving a promotion (rather than with a loss of support and
services for wrongful death or injury). [DE 177] at 3-9.
A. Reliability
Dr. Macpherson’s opinions and conclusions are sufficiently reliable to be admissible. As
Dr. Macpherson continuously repeated throughout his deposition, he is essentially providing a tool
11 Defendants do not appear to challenge Dr. Macpherson’s qualifications. But see [DE 162] at 6
(“Notably, Dr. Macpherson has already been found to be unqualified to give expert testimony in
this circuit . . . .” (emphasis added)). The arguments by Defendants more naturally fall under the
reliability and helpfulness prongs. Regardless, the Court deems Dr. Macpherson qualified to give
economic expert testimony on lost economic support and services based on his curriculum vitae
and deposition testimony, both of which detail his prior recognitions, writings, jobs, and decades
experience in economics and as an expert witness.
12 See Martin v. City of Atlanta, No. 07-CV-326, 2013 WL 12321961, at *7 (N.D. Ga. May 29,
2013) (excluding testimony of Dr. Macpherson regarding whether race affected employment
promotions), aff’d, 579 F. App’x 819, 826-27 (11th Cir. 2014) (“Given the highly deferential
standard in reviewing decisions to exclude expert testimony under Daubert, Appellants have not
shown that the judge abused his discretion by excluding Dr. Macpherson’s testimony.”).
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 42 of 47

43
or formula to aid the jury with its computation of damages by providing the present value for lost
financial support and household services. 	He explicitly is not opining on the exact amount of
money Mr. Desir would have provided to his daughters or the exact amount of time that Mr. Desir
would have spent performing certain services for them. Instead, the placeholder figures that Dr.
Macpherson provides for the present value of support and amount of time spent on services can be
adjusted by the jury based on what the trial evidence shows.
Dr. Macpherson’s opinions are based on sufficient facts. He bases the placeholder figures
off record evidence that Mr. Desir provided some degree of financial support to his daughters and
would also perform certain caregiving services for them. 	The opinions and conclusions are not
inadmissible purely because the basis for the opinion aligns with Plaintiff’s view of the facts. See
Feliciano, 844 F. Supp. 2d at 1265 (quoting Walker, 46 F. App’x at 695-96). Notably, Plaintiff
will still need to prove that Mr. Desir actually provided support (outside of government benefits)
and other caregiving services—including how much support and services were entailed. See, e.g.,
Ortiz v. Wiwi, No. 11-CV-033, 2012 WL 4482367, at *4-5 (M.D. Ga. Sept. 26, 2012) (“Dr.
Poindexter’s report in no way serves as evidence that Plaintiff actually lost the projected amount
of lost earnings and home services. To establish that Dr. Poindexter’s report carries any weight,
Plaintiff must establish a loss of earning capacity and home services consistent with that relied
upon by Dr. Poindexter.”). But Dr. Macpherson’s conclusion that Mr. Desir provided some such
support and services, justifying providing the jury with a method for valuing the support and
services, finds some backing in the record. 	See, e.g., [DE 162-3] at 51-52 (detailing support
provided by Mr. Desir, including financial support).
Moreover, Defendants’ issue with Dr. Macpherson’s use of the wage rate for those
performing housecleaning and maid services in South Florida goes toward the weight of the
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 43 of 47

44
testimony rather than its admissibility. 	Dr. Macpherson essentially explained his usage of this
wage rate as an attempt to pick a conservative, low-wage occupation that comparably covers
services of the general type that record evidence indicates Mr. Desir was performing for his
daughters—in the place where he was performing them. The fact that a housecleaning and maid
service occupation may not completely match all the services that a caregiving figure may perform
for their children does not leave such a large analytical gap in the proposed expert testimony that
it becomes inadmissible, especially considering the overlap between the types of services, the
conservative nature of the wage rate, and the difficulty in qualifying certain intangibles provided
by a caregiver. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (permitting courts to use
discretion when excluding experts based on “an analytical gap”).
Plus, as Dr. Macpherson explained, the wage rate for the housecleaning and maid
occupation would not be much above the 2026 minimum wage in Florida, which could apply to
many different jobs. Cf. Ortiz, 2012 WL 4482367, at *4-5 (concluding that economist’s opinions
on present value of decedent’s lost future earnings and loss of services in the home were reliable
partly because his opinions were “very conservative, as his projections [were] based on Decedent
making a maximum $10 an hour, no matter the job”). At any rate, the proper way for Defendants
to attack Dr. Macpherson’s inputs and estimates is through cross-examination and argument, not
through excluding the testimony in its entirety. Dr. Macpherson’s analysis is sufficiently reliable
to be admissible.13
13 The Court is unpersuaded by Defendants’ citation to Martin, where another district court
excluded Dr. Macpherson’s testimony, because it did not at all involve the calculation of the
present value of lost financial support or household services. See generally 2013 WL 12321961.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 44 of 47

45
B. Helpfulness
The Court concludes that Dr. Macpherson’s proposed testimony satisfies the helpfulness
prong because it could make it easier for the jury to determine part of the potential damages to
award, if any. In other words, if the jury credits Dr. Macpherson’s testimony, it helps the panel by
simplifying the calculations needed during deliberations. Although savvy jurors could potentially
do similar calculations without Dr. Macpherson’s help, his methodology and sources are likely to
be “beyond the understanding of the average lay person.” Ortiz, 2012 WL 4482367, at *5 (quoting
Frazier, 387 F.3d at 1262). Moreover, the testimony would be particularly helpful for the alleged
loss of household services because these services are difficult to quantify. 	According to Dr.
Macpherson, if the jury used his approach for calculating the damages for a loss of household
services, “the only thing the jury has to decide is how many hours per week [Mr. Desir] was
providing [of services].” [DE 162-2] at 33. In short, if the jury chooses to credit Dr. Macpherson’s
expert testimony, it can assist the panel in making certain damages calculations. Dr. Macpherson’s
opinions and conclusions thus satisfy the Daubert standard and are admissible. Defendants motion
on this issue will be denied.
CONCLUSION
For the foregoing reasons, it is ORDERED and ADJUDGED that:
1. 	Defendants’ Motion to Strike Plaintiff’s Rebuttal Expert or Limit Testimony
[DE 122] is DENIED.
2. 	Defendants’ Daubert Motion to Exclude the Opinions and Expected Expert
Testimony of Dr. David Macpherson [DE 162] is DENIED.
3. 	Defendants’ Daubert Motion to Exclude the Opinions and Expected Expert
Testimony of Patrick Hurley [DE 163] is GRANTED IN PART and DENIED IN PART. Mr.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 45 of 47

46
Hurley may testify as long as a proper foundation can be laid to indicate that Mr. Hurley is
testifying about conformance (or a lack thereof) with prevailing police standards and not the
ultimate question for the jury. Even so, Mr. Hurley may not simply restate Dr. Schultz’s medical
opinion that manual strangulation was Mr. Desir’s cause of death. Moreover, Mr. Hurley cannot
offer a medical opinion on the effects of manual strangulation on the body because he is not a
medical expert.
4. 	Defendants’ Daubert Motion to Limit and Exclude the Opinion and Expected
Expert Testimony of Dr. Daniel Schultz [DE 164] is GRANTED IN PART and DENIED IN
PART. Although Dr. Schultz may not give a mere general overview of his interpretation of the
video footage, he may identify, in conjunction with the video footage itself, the particular
observations that are connected to his medical analysis.
5. 	Plaintiff’s Motion to Exclude the Testimony and Report of Defendants’ Expert
Mark Shuman [DE 165] is GRANTED IN PART and DENIED IN PART. 	Although Dr.
Shuman may not give a mere general overview of his interpretation of the video footage, he may
identify, in conjunction with the video footage itself, the particular observations that are connected
to his medical analysis. Dr. Shuman also cannot testify as to when Mr. Desir lost a pulse because
his analysis on this point lacks adequate support in the record.
6. 	Plaintiff’s Motion to Exclude the Testimony and Report of Defendants’ Expert
Aubrey Land [DE 166] is GRANTED IN PART and DENIED IN PART. Mr. Land’s first five
opinions, which address whether certain actions of law enforcement personnel were “objectively
reasonable,” are admissible so long as defense counsel lays a foundation that frames these opinions
in the context of the prevailing standards of police behavior and not the question for the jury. Mr.
Land’s testimony on his sixth opinion (that certain policies are “sound”) will be limited to
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 46 of 47

47
describing how the policies he enumerates comply with the American Correctional Association’s
standards and the Florida Model Jail Standards—as well as how those standards compare to his
own experience. In addition, unlike the cause-of-death experts, Mr. Land will not be allowed to
testify regarding his observations from the video footage because the jury is more than capable of
determining whether the video shows things like Mr. Desir resisting without provocation.
DONE AND ORDERED in Fort Lauderdale, Florida, this 19th day of December 2025.
Case 0:23-cv-60499-AHS Document 228 Entered on FLSD Docket 12/19/2025 Page 47 of 47