Lester v. Flores et al

1 / 11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ALBERT SHANE LESTER,
Plaintiff,
v.
§
§
§
§
§
§
§
§
§
Case No. 2:23-cv-00263
STEVEN A. FLORES,
Defendant.
MEMORANDUM AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Defendant has moved to exclude the expert testimony and report of Aubrey Land.1 (Doc.
No. 102.) Mr. Land is qualified to give reliable expert testimony regarding Texas prison
facilities and policies and use of force investigations, so the undersigned recommends that
Defendant’s motion be DENIED in part. Mr. Land’s report, however, includes legal
conclusions; the district court should GRANT Defendant’s motion in part by prohibiting Mr.
Land from testifying regarding those legal conclusions.2
A. Background.
Plaintiff Albert Shane Lester, a Texas state prisoner, initially brought this suit pro se and
in forma pauperis; he is now represented by appointed counsel. (Doc. Nos. 1, 4, 6, 79.) After
his case was screened pursuant to the Prison Litigation Reform Act, see 42 U.S.C. § 1997e(c); 28
1 This case has been referred to the undersigned for case management and recommendations on dispositive matters.
See 28 U.S.C. § 636.
2 Contemporaneously with this memorandum, the undersigned is issuing another memorandum (Doc. No. 118)
recommending the granting of Defendant’s motion for summary judgment based on qualified immunity (Doc. No.
103). If the district court grants summary judgment, it should instead wholly DENY as moot the instant motion to
exclude Mr. Land’s report and testimony.
United States District Court
Southern District of Texas
ENTERED
March 26, 2026
Nathan Ochsner, Clerk
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 1 of 11

2 / 11
U.S.C. § 1915A, the district court dismissed all but one of Plaintiff’s claims. (Doc. No. 46.)
Plaintiff’s only remaining claim is one for excessive force against defendant Steven A. Flores in
his individual capacity. Plaintiff has since filed his designation of expert witness list, naming
two experts from whom he planned to elicit testimony in this case, including Mr. Aubrey Land.
(Doc. No. 92.)
1. The motion and response.
Defendant moved to strike Mr. Land’s expert report and exclude his testimony, arguing
that he is unqualified to testify and that his opinions will be unreliable. (Doc. No. 102, pp. 4-6.)
He makes no argument concerning the relevancy of Mr. Land’s testimony. See id. Defendant
asserts that Mr. Land is unqualified because he has no experience in Texas prisons and that he
does not sufficiently show that he is qualified to testify as an expert on Texas prisons or their
policies. Id. at 4. While conceding that Mr. Land does have substantial experience in Florida
correctional facilities, Defendant argues that his experience in those facilities does not render
him an expert on Texas facilities. Id. Accordingly, Defendant argues, Mr. Land is unqualified to
testify as an expert on Texas prison conditions and policies. Id.
Next, Defendant argues that Mr. Land’s opinion regarding Texas prison conditions and
policies is unreliable under Federal Rule of Evidence 702. (Doc. No. 102, p. 5.) Defendant
contends that Mr. Land’s testimony is unreliable because “he has failed to explain how [his
experience in Florida] led to the conclusions he reached, why this experience is a sufficient basis
for his opinion, or how his experience was applied to the facts.” Id. To Defendant, this amounts
to Mr. Land’s asserting that his qualifications are the sole basis for the offering of his expert
testimony, rendering his opinions inadmissible. Id. (citing Crappell v. Boh Bros. Constr. Co.,
LLC, Civ. No. 06-1315, 2011 WL 13213835, at *3 (E.D. La. Jan. 10, 2011)). And because Mr.
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 2 of 11

3 / 11
Land’s “methodology stems only from his own personal beliefs, assumed and unsubstantiated
supporting facts, and unrelated experience, his testimony is not sufficiently reliable.” (Doc. No.
102, p. 5.)
Plaintiff responded to Defendant’s motion, arguing that Defendant’s qualification and
reliability arguments are unavailing. (Doc. No. 110.) Plaintiff first contends that “Defendant’s
entire argument as to Mr. Land’s qualifications is based on the unsupported assertion that
experience gained in a jurisdiction other than the one being testified in does not count towards
the qualification of an expert witness.” Id. at 5. Plaintiff cites several cases in which federal
courts have permitted expert testimony from witnesses who do not have experience in the same
jurisdiction, correctional matter, or type of institution. Id. at 5-6 (collecting cases). Plaintiff
argues that, as was the situation in those cases, Mr. Land has an “extensive record of experience
and knowledge in the field of corrections,” so his opinions are admissible. Id. at 6. And because
“[t]here is no requirement that Mr. Land’s experience be exclusive to Texas prisons for him to be
qualified for purposes of defeating a Daubert motion,” Plaintiff argues that Defendant has not
sufficiently explained how Mr. Land is unqualified to opine on “how federal prisons are
managed.” Id.
Parrying Defendant’s contention that Mr. Land’s opinion is unreliable, Plaintiff argues
that Mr. Land’s “many years of experience,” his review of the case documents, and the
application of his experience to those documents form a sufficient basis for specialized
knowledge under Daubert. (Doc. No. 110, pp. 7-8.) Plaintiff counters Defendant’s argument
that Mr. Land’s lack of familiarity with Texas prisons makes him unreliable by citing Ali v.
Stephens, No. 9:09-CV-52, 2014 WL 12771445 (E.D. Tex. July 11, 2014), in which the district
court found that a witness’ 59 years of experience in non-Texas correctional facilities enabled
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 3 of 11

4 / 11
him to reliably opine on the Texas prison system. Id. at *8. Plaintiff concludes that Defendant’s
concerns are more focused on the credibility and weight of Mr. Land’s testimony rather than the
admissibility of his opinions. Id. at 8-9.
Defendant did not file a reply to Plaintiff’s response.
2. Mr. Land’s report.
Defendant attached Mr. Land’s report to his motion. (Doc. No. 102-1.) In his report, Mr.
Land recounted his experience, stating that he has worked in law enforcement and corrections for
33 years. Id. at 2. During that time he was an inspector at six prisons in Florida. Id. As an
inspector, he “responded to and conducted” administrative and criminal investigations at the
prisons and reviewed more than 1,000 reports relating to use of force incidents. Id. Mr. Land
also stated that he has testified in state and federal courts more than 100 times. Id.
Moving to the substance of his report, Mr. Land stated that he reviewed Plaintiff’s
grievance record, medical records, disciplinary record, the investigation report surrounding the
alleged use of force, and the responses and objections to Plaintiff’s first set of interrogatories.
(Doc. No. 102-1, p. 5.) After reviewing these records, Mr. Land believed that several
“material[s]” had “not been provided” and were being “withheld,” including videos, certain
reports, and TDCJ policies regarding use of force and issuance of chemical agents. Id. at 7-8.
Mr. Land then provided his professional findings and opinions, drawing conclusions
based on the records he reviewed. (Doc. No. 102-1, pp. 8-9.) He opined that, though no such
reports were produced, inmates other than Plaintiff were interviewed following “the discovery of
[Defendant’s] failure to report.” Id. at 9. Mr. Land also believes that Defendant “intentionally
and unlawfully” deployed a chemical agent on Plaintiff, though Defendant’s “delayed reporting”
stated that the discharge was accidental. Id. Video recordings inside the housing unit would
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 4 of 11

5 / 11
have shown whether the chemical discharge was accidental or intentional, Mr. Land opined, but
those videos were not produced, even though one document “represents such video was
reviewed.” Id.
B. Analysis.
For expert witnesses, district courts will “evaluate questions of admissibility, reliability,
and competency of evidence” according to the Federal Rules of Evidence. Kim v. Am. Honda
Motor Co., Inc., 86 F.4th 150, 160 (5th Cir. 2023) (citing Wackman v. Rubsamen, 602 F.3d 391,
400 n.2 (5th Cir. 2010)). It is understood that “[p]arties offering expert testimony must prove the
expert is qualified and will offer relevant and reliable testimony.” Id. (citing Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 590-91 (1993)).
Under Federal Rule of Evidence 702, a person may be “qualified as an expert by
knowledge, skill, experience, training, or education” if:
(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 has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702.
Defendant argues that Mr. Land is not qualified to give the opinions he offers in his
report and that Mr. Land’s opinion will not be a reliable application of his specialized knowledge
to the facts of this case.
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 5 of 11

6 / 11
1. Qualifications.
Before a trial court may allow a witness to testify as an expert, the court must be assured
that the proffered witness is qualified to testify based on the expert’s “knowledge, skill,
experience, training, or education.” United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009)
(quoting Fed. R. Evid. 702). “Experts need not be highly qualified to testify,” however, so
“differences in expertise go to the weight of the testimony, rather than admissibility.”
CliniComp Int'l, Inc. v. Athenahealth, Inc., 507 F. Supp. 3d 774, 778 (W.D. Tex. 2020) (citing
Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009)). If there is some reasonable indication of
qualifications, the trial court may admit the expert's testimony, and then the expert's
“qualifications become an issue for the trier of fact rather than for the court in its gate-keeper
capacity.” Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507 (5th Cir. 1999). And in
assessing an expert’s qualifications, district courts are to look beyond “credentials alone.”
Barnett v. Procom Heating, Inc., No. 4:17-CV-380, 2018 WL 1597406, at *1 (N.D. Tex. 2018)
(citing Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1112-13 (5th Cir. 1991)).
Without citation to authority, Defendant argues that Mr. Land’s long career in Florida
correctional facilities does not make him qualified to opine on Texas correctional facilities.
(Doc. No. 102, pp. 4-5.) But as Plaintiff points out, there is no requirement that an expert’s
experience be gained in the jurisdiction in which he or she plans to testify. (Doc. No. 110, p. 5.)
Rather, courts have found that such experience amassed outside of the jurisdiction can supply the
qualifications needed for an expert to testify. In Ali v. Stephens, the district court rejected a
motion to exclude an expert’s testimony that lodged an argument to Defendant’s position here.
There, the district court reasoned that the lack of “first-hand knowledge of the Texas prison
system” does not make an expert unqualified where the expert has decades of relevant
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 6 of 11

7 / 11
experience elsewhere. 2014 WL 12771445, at *3. The Ali court also noted that the Fifth Circuit
had recently discussed that expert’s testimony in favorable terms in another case indicating that
experience attained from outside the jurisdiction can be sufficient to make an expert qualified.
Id. (citing Garner v. Kennedy, 713 F.3d 237, 247 (5th Cir. 2013)).
In sum, Defendant has not “articulate[d] any basis to believe that Texas [facilities] are
managed in a manner inconsistent with how [Florida facilities] are managed.” Bonnet-Pritchett
v. Washington Cnty., Tex., No. A-21-CV-149, 2022 WL 3082522, at *2 (W.D. Tex. June 16,
2022). Mr. Land’s 33 years of experience in law enforcement and corrections in Florida can
form the basis for his qualification to testify as an expert here.
2. Reliability.
Defendant next argues that Mr. Land has not explained how his experience allows him to
reliably provide expert testimony in this case. (Doc. No. 102, p. 5.) Plaintiff responds that Mr.
Land’s professional experience and his review of the case documents allow him to reliably
testify on Texas prisons. (Doc. No. 110, pp. 7-8.)
The Supreme Court in Daubert articulated a flexible, non-exhaustive, five-factor test to
assess the reliability of an expert’s methodology: (1) whether the expert’s theory can be or has
been tested; (2) whether the theory has been subject to peer review and publication; (3) the
known or potential rate of error of a technique or theory when applied; (4) the existence and
maintenance of standards and controls; and (5) the degree to which the technique or theory has
been generally accepted in the scientific community. Daubert, 509 U.S. at 593-95.
In instances where the expert’s areas of expertise “cannot have the exactness of hard
science methodologies . . . trial judges are given broad discretion to determine whether Daubert's
specific factors are, or are not, reasonable measures of reliability in a particular case.” United
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 7 of 11

8 / 11
States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006) (cleaned up). Courts should thus permit
experts to “draw [] conclusion[s] from a set of observations based on extensive and specialized
experience.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir. 2002) (quoting Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999)). Accordingly, an expert’s application of his
or her “experience, studies, and education, combined with a review of the relevant materials can
provide a reliable basis for expert testimony.” Thomas v. PFG Transco, Inc., 501 F. Supp. 3d
437, 442 (E.D. Tex. 2020) (citing Perez v. City of Austin, No. A-07-CA-044, 2008 WL 1990670,
at *10 (W.D. Tex. May 5, 2008)).
Defendant argues that Mr. Land’s testimony will not be sufficiently reliable because he
has not explained how his experience formed the basis for his conclusions, or how his experience
was applied to the facts. (Doc. No. 102, p. 5.) But as Plaintiff counters, Mr. Land “based his
opinion on ‘[his] many years of experience in the [fields of law enforcement and corrections]’
and his review of case documents and prison records related to the Incident, identifying the
portions of the record that he used to form his opinion.” (Doc. No. 110, p. 8 (bracketed text in
original).) In doing so, Mr. Land applied his experience to the facts and documents of the case
and concluded that certain evidence likely exists but was withheld from Plaintiff. See Doc. No.
102-1, pp. 8-9. Mr. Land’s conclusions extend beyond “his credentials and [] subjective
opinion,” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987), as he opined on what he
“believed to be withheld” in reviewing the relevant incident reports based on his review of
reports in the past. (Doc. No. 102-1, p. 8.)
Several other federal courts have found Mr. Land to be qualified to give reliable expert
testimony in similar cases. E.g., Desir v. Tony, No. 23-CV-60499, 2025 WL 3684277 (S.D. Fla.
Dec. 19, 2025) (denying motion to exclude Mr. Land as expert on use of reasonable force by
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 8 of 11

9 / 11
corrections officers); Robinson v. Lambert, No. 6:15-CV-01896, 2019 WL 7971852, at *4 (M.D.
Fla. Dec. 18, 2019) (same); but see Garland v. Oklahoma ex rel. Oklahoma Dep't of Corr., No.
CIV-20-306, 2022 WL 726925 (E.D. Okla. Jan. 6, 2022) (granting motion to exclude because
Mr. Land’s testimony “that prison guards and wardens should not be sexually intimate with
inmates is hardly a new, unproven or novel position” and would not be “helpful” to the jury). As
is also the case here, Mr. Land reviewed the relevant materials, made citations to reports in his
analysis, and rendered an opinion based on his experience. Accordingly, the district court should
find that Mr. Land will provide reliable expert testimony.
3. Legal conclusions.
Mr. Land is qualified to provide a reliable expert opinion regarding prison and
correctional facilities in this case, but he cannot render “legal conclusions reserved for the court.”
Highland Cap. Mgmt., L.P. v. Bank of Am., N.A., 574 F. App’x 486, 491 (5th Cir. 2014). While
his “testimony in the form of an opinion or inference” is admissible, Mr. Land “may never render
conclusions of law” as an expert witness. Goodman v. Harris Cnty., 571 F.3d 388, 399 (5th Cir.
2009) (citing Snap–Drape, Inc. v. Comm’r, 98 F.3d 194, 198 (5th Cir. 1996)). Mr. Land’s report
contains such a legal conclusion: “I further opine Officer Flores intentionally and unlawfully
deployed the chemical agent contrary to his delayed reporting of an accidental discharge.” (Doc.
No. 102-1, p. 9.) District courts have regularly held that similar legal conclusions are
inadmissible and excluded them. Carr v. Montgomery Cnty., Tex., Civ. No. H-13-2795, 2015
WL 5838862, at *8 (S.D. Tex. Oct. 7, 2015) (Miller, J.) (striking conclusion that “states a point
of law”); Estevis v. City of Laredo, No. 5:22-CV-22, 2023 WL 9312081 (S.D. Tex. Dec. 28,
2023) (Kazen, M.J.) (expert could opine about training and standards but not whether officers
violated the law); Bishop v. City of Denton, No. 4:14-CV-608, 2015 WL 8293452, at *3 n.2
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 9 of 11

10 / 11
(E.D. Tex. Dec. 8, 2015) (striking conclusion that force was “unlawful”). Mr. Land should not
be permitted to make legal conclusions that are reserved for the Court or jury to decide, and the
district court should exclude any such testimony.
C. Conclusion and recommendation.
The district court should find that Mr. Land is qualified to provide reliable expert
testimony in this case, but it should not allow him to render legal conclusions while doing so.
The district court should thus DENY Defendant’s motion (Doc. No. 102) in part, allowing Mr.
Land to testify to all relevant matters aside from the legal conclusions in his report, but GRANT
it in part to prohibit Mr. Land from rendering a legal conclusion regarding the lawfulness of
Defendant’s conduct.3
D. Notice.
The Clerk will file this Memorandum and Recommendation and transmit a copy to each
party or counsel. Within 14 days after being served with a copy of the Memorandum and
Recommendation, a party may file with the Clerk and serve on the United States Magistrate
Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1),
and General Order No. 2002-13, United States District Court for the Southern District of Texas.
A failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within 14 days after being
served with a copy shall bar that party, except upon grounds of plain error, from attacking on
3 If the district court grants summary judgment, see Doc. No. 118, it should deny this motion in full, as moot.
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 10 of 11

11 / 11
appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District
Court. See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
SIGNED on March 26, 2026.
_____________________________
MITCHEL NEUROCK
United States Magistrate Judge
Case 2:23-cv-00263 Document 119 Filed 03/26/26 in TXSD Page 11 of 11