VIRGINIA EMERSON HOPKINS, District Judge.
This case comes before the Court on Defendant City of Madison's and Defendant Eric Parker's (collectively "Defendants") Joint Motions To Exclude Opinion Testimony. Defendants have moved to exclude the testimony of the following experts:
Plaintiff Sureshbhai Patel ("Patel") initiated this lawsuit against the City of Madison and Parker on February 12, 2015. (Doc. 1). The incident giving rise to this lawsuit is alleged to have taken place on February 6, 2015. (Doc. 2 at 1). Patel claims that he was merely taking a morning walk in his son's neighborhood when Officer Parker, a police officer employed by the City of Madison, illegally stopped him. (Id. 1-3). Patel claims that the "stop was without reasonable suspicion or probable cause." (Id. at 3). During the course of the stop, Parker searched Patel for weapons. (Id.). None were found, but Patel claims that "[Parker] restrained [his] arms and slammed [him] face first into the ground." (Id.). It is this use of force that Patel claims was "unnecessary and excessive." (Id.). Patel says he suffered significant injuries from this event, including partial paralyzation. (Id.).
Patel has asserted the following claims: illegal seizure under 42 U.S.C. § 1983, unlawful search under 42 U.S.C. § 1983, excessive force under 42 U.S.C. § 1983, illegal search/assault under state law, false arrest/false imprisonment under state law, and assault and battery/excessive force under state law. (Id. at 4-7).
As a part of his case, Patel wishes to use two retained experts, Dr. Cummings and Wiley. (Doc. 118); (Doc. 123-1).
Regarding expert testimony, the Federal Rules of Evidence provide that:
FED. R. EVID. 702 (2011). Rule 702 must be read in conjunction with three seminal decisions by the Supreme Court related to expert testimony: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L. Ed. 2d 508 (1997); and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L. Ed. 2d 238 (1999).
All rulings on Daubert motions are reviewed under an abuse of discretion standard. See, e.g., Joiner, 522 U.S. at 141, 118 S. Ct. at 517 ("All evidentiary decisions are reviewed under an abuse-of-discretion standard."). "An abuse of discretion can occur where the district court applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment." United States v. Estelan, 156 F. App'x 185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th Cir.2005)).
In Daubert, the Supreme Court established that district judges act as "gatekeepers" for expert testimony. 509 U.S. at 592-93, 113 S. Ct. at 2796. The district court judge must assess the proffered testimony and make a preliminary determination about the scientific validity of the expert's reasoning and methodology. Id.
Broussard-Wadkins v. Maples, 895 F.Supp.2d 1159, 1165 (N.D. Ala. 2012), aff'd sub nom. Broussard v. Maples, 535 F. App'x 825 (11th Cir. 2013).
The burden under Rule 702 rests squarely with the proponent of the expert witness:
See Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1107 (11th Cir. 2005).
The Eleventh Circuit has established a three-part inquiry for district courts to follow in performing their gatekeeper role. For evidence to be admissible under Rule 702, the district court must find that:
Tampa Bay Water v. HDR Engineering, Inc., 731 F.3d 1171, 1183 (11th Cir. 2013). The party offering the testimony must meet each prong by a preponderance of the evidence.
To meet Prong One, a party must show that the expert has sufficient "knowledge, skill, experience, training, or education" to form a reliable opinion about the relevant issue. Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193 (11th Cir. 2010). Experience in a particular field is not enough to qualify an expert; the expert must have experience with the issue before the court. See id. at 1201.
To meet Prong Two, the party proffering the expert's testimony must show that the expert's opinion is sufficiently reliable. A district court has substantial discretion in deciding how to test the reliability of an expert's testimony. Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005). "This deferential abuse of discretion standard is applied stringently, even if a decision on expert testimony is `outcome determinative.'" Chapman v. Proctor & Gamble Distrib., LLC, 766 F.3d 1296 (11th Cir. 2014) (citing Joiner, 522 U.S. at 142-43, 118 S. Ct. at 517).
Pursuant to the second Daubert prong, the court should consider the following factors: "(1) whether the expert's methodology can be tested; (2) whether the expert's scientific technique has been subjected to peer review and publication; (3) whether the method has a known rate of error; and (4) whether the technique is generally accepted by the scientific community." Rink, 400 F.3d at 1292 (citing Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)). However, these factors are not exhaustive and a court "should consider any additional factors that may advance its Rule 702 analysis." Quiet Tech, 326 F.3d at 1341.
"The same criteria that are used to assess the reliability of a scientific opinion may be used to evaluate the reliability of non-scientific, experience-based testimony." Frazier, 387 F.3d at 1262.
"The final requirement for admissibility of expert testimony under Rule 702 is that it assist the trier of fact." Frazier, 387 F.3d 1262. That means that " expert testimony is admissible if it concerns matters that are beyond the understanding of the average lay person." Id. (citing United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985)). "Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments." Id. at 1262-63 (citing 4 Weinstein's Federal Evidence § 702.03[2] [a]).
Whether a Daubert hearing is necessary is a decision within the sound discretion of a district court. Cook, 402 F.3d at 1113. The abuse of discretion standard "applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion . . . [i]ndeed, the Rules seek to avoid unjustifiable expense and delay as part of their search for truth and the just determination of proceedings." Kumho, 526 U.S. at 139, 152-53 (internal citations omitted). There is no requirement that a Daubert hearing always be held. See United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001); Frazier, 387 F.3d at 1264.
In this case, Patel requested a hearing, merely arguing (without specificity) that "some of the issues raised by [D]efendants are not straightforward." (Doc. 118 at 3); (Doc. 123-1 at 5). The Court disagrees. After extensively reviewing the parties' briefs and the record, the Court determines that a Daubert hearing is not necessary.
Patel offers the opinions of Dr. Cummings into evidence in this case. Dr. Cummings has offered an expert report. (Doc. 84-3, the "Cummings Report").
On September 8, 2017, Defendants filed their Joint Motion To Exclude Dr. Cummings's testimony and brief in support. (Doc. 95); (Doc. 96). Patel responded on October 2, 2017. (Doc. 118). Defendants replied on November 15, 2017. (Doc. 133). Defendants challenge Dr. Cummings's "qualifications and methods" under Federal Rule of Evidence 702. (Doc. 95 at 4-5) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)). Defendants move to exclude this testimony "from consideration on summary judgment or introduction at trial." (Doc. 95).
Dr. Cummings has been offered by Patel to give his calculations regarding Patel's head's velocity, "the biomechanical aspects of the takedown," and to assist the jury with understanding what they would see on the video. (Doc. 118 at 1-3). Dr. Cummings is a two-time graduate of the University of North Carolina at Chapel Hill. (Cummings Report at 49). He has a Ph.D. in biomedical engineering and a B.S. in applied and materials science with minors in physics and chemistry. (Id.). Among other jobs, he has worked as a post-doctoral fellow, biomedical engineer, accident reconstructionist, and most recently as the principal consulting scientist and biomedical engineer at Cummings Scientific, LLC. (Id.). He claims that his work is split close to evenly for plaintiffs and defendants. (Id.). Among his skills he includes injury causation, biomechanics, computer based accident reconstructions and simulations, and photogrammetry.
In the Cummings Report, Dr. Cummings offers the following opinions:
(Cummings Report at 4). In coming to these conclusions, Dr. Cummings reviewed several sources. (Id. at 48). Among those sources were videos of the incident, medical records, trial testimony, an acquittal memorandum, and an investigative report. (Id.). Additionally, Dr. Cummings reviewed several publications. (Id.).
Much of the Cummings Report takes stills from the COBAN video and calculates Patel's head velocity. (Id. at 7-40). He then contrasts his calculations to a fall "due to gravity." (Id. at 41).
Defendants contest Dr. Cummings's qualifications as a forensic video analyst. (Doc. 96 at 10). During the course of his examination of the incident, Dr. Cummings used photogrammetry. (Id. at 10-11). Photogrammetry "involves taking measurements from still photographs." (Id.). In this case, Dr. Cummings had "the COBAN MPEG2 video from Officer Spence's patrol vehicle." (Id.). He used those measurements to calculate the speed and velocity at which Patel hit the ground during the incident. (Id.).
To respond to Dr. Cummings, Defendants employed "Grant Fredericks, a Certified Video Analyst." (Id. at 11). Fredericks submitted a declaration and expert report in connection with the Cummings Motion. (Doc. 97-3, Fredericks Declaration); (Doc. 97-4, Fredericks Report).
Defendants use Fredericks to argue that Dr. Cummings lacks the necessary qualifications to do the sort of video analysis he attempted to do in this case. (See id. at 12). Fredericks explained the nature of COBAN MPEG2 videos and how they are encoded. (Id. at 12-16). Defendants contrast this with Dr. Cummings's shortcomings in his own knowledge of these videos. (Id.); (See also Cummings Deposition at 271, 276-79). Fredericks concluded that the video "was never intended to be accurate for the purpose you are attempting to use it," namely to determine the speed/velocity by which Patel hit the ground. (Doc. 96 at 15). Finally, Defendants point out that, at his deposition, Dr. Cummings denied knowing about any "peer-reviewed scientific publications that support using a compressed digital video image . . . to compare the speed of a falling person versus what happened to Mr. Patel[.]" (Cummings Deposition at 277).
In response, Patel points out that Defendants do not argue that "Dr. Cummings is not a qualified biomechanical expert." (Doc. 118 at 1). However, Defendants reply by noting that they spent the first portion of their brief challenging Dr. Cummings's qualifications as a forensic video analyst. (See Doc. 133 at 10-11).
In this case, it is evident to the Court that Dr. Cummings is not qualified to do the sort of work that he purported to do. In his deposition, Dr. Cummings displayed an unfamiliarity with the technical details of the video that one would expect an expert to possess. (See Cummings Deposition at 271, 276-78). The contrast between the level of understanding Dr. Cummings demonstrated at his deposition to the explanations of a consultant for the very company that produces the COBAN video system is notable. (Doc. 97-3 at 4-7). Dr. Cummings also admitted the lack of peer-reviewed publications that endorse the methodology he purported to perform. (Id. at 277).
For these reasons, Dr. Cummings is unqualified to do the sort of scientific analysis that he purported to perform in this case. Under these facts, the Court is compelled to exercise its role as a "gatekeeper." See 509 U.S. at 592-93, 113 S. Ct. at 2796. Dr. Cummings may be an expert in some areas, but he is not an expert in the photogrammetry of a video system he does not adequately understand. (Cummings Deposition at 176) (lacking understanding of the video encoding process). His deposition displays a worrisome deficiency in the knowledge expected from an expert. (Cummings Deposition 269, 271) (displaying an inadequate knowledge on issues such as GOP and predictive vs. bidirectional frames); (see also Fredericks Report at 34-37).
Dr. Cummings also stated the following in his deposition:
(Cummings Deposition at 251). Yet, Fredericks noted that "there are a number of Forensic Video training courses available throughout the United States to both the private and public sector engaging in the analysis of digital multimedia evidence (DME)." (Fredericks Report at 41). Finally, Dr. Cummings admitted having no forensic video analysis certifications, though he claims that "the photogrammetry coursework is applicable to videos." (Cummings Deposition at 252).
Defendants also argue that Dr. Cummings's testimony on Patel's head movement are due to be excluded as unreliable. (Doc. 96 at 17-40). They point to the problems with bidirectional and predictive images, de-interlacing, aspect ratios, and the field of view. (Id. at 17-22). They argue that Dr. Cummings placed measurement points on the video in an unreliable way (id. at 22-27), that Dr. Cummings's error rate is too high (id. at 28-30), and that he failed to use an inverted pendulum (id. at 30-33).
Defendants also argue that Dr. Cummings's testimony on the mechanisms of Patel's injuries are due to be excluded. (Id. at 33). They argue that "Dr. Cummings failed to account for the effects of severe preexisting degenerative changes to [Patel's] spine, misapplied the available peer-reviewed data, misrepresented the applicable standard deviation, and developed his torque calculations exclusively by borrowing from a study that lacked any relevant underlying data." (Id. at 33).
In response, Patel relies on Dr. Cummings's stricken declarations. (Doc. 118 at 2).
The Court is convinced that Dr. Cummings's opinion is not based on any reliable methodology. As stated above, he is not qualified to do the sort of forensic analysis that he purported to do. Additionally, his analysis is flawed because of his use of the interlaced video (Fredericks Deposition at 38),
Further, it would be an odd result if the Court were to admit Dr. Cummings's opinions without the underlying calculations, as Patel seems to contemplate. (See Doc. 118 at 2).
For the aforementioned reasons, the Court finds that Dr. Cummings's testimony is unreliable.
Defendants also contend that Dr. Cummings's opinion testimony whether Patel walked away from the officers is not helpful to the jury. (Doc. 96 at 40-43). In response, Patel argues that Dr. Cummings's "frame-by-frame analysis" is "not easily duplicated in the jury room" and "lay persons would not ordinarily have the education, training, and experience to fully understand the forces involved in the takedown or the significance of all of the biomechanical components of it." (Doc. 118 at 3).
Whether viewed as lay testimony or expert testimony, Dr. Cummings's opinions from watching the video are not helpful to the jury. "Rule 701(b) `helpfulness' requirement is satisfied as to lay opinions of video or photographic evidence only where the witness is better able to observe, understand or interpret the contents of that video or photograph than the jury is." Kirksey v. Schindler Elevator Corp., No. 15-0115-WS-N, 2016 WL 5239874 at *8 (S.D. Ala. Sept. 21, 2016) (granting a motion excluding testimony regarding actions depicted on video). Under Rule 702, "expert testimony is admissible if it concerns matters that are beyond the understanding of the average lay person. . . . Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments." Frazier, 387 F.3d at 1262-63.
In this case, a jury is capable of watching the video and determining for themselves what happened. No special degrees, training, or experience is required to watch a video and determine if Patel made any movements prior to the incident.
For this reason, the Court finds that Dr. Cummings's opinions are unhelpful to the jury.
Defendants contest what they term as "undisclosed opinions", the opinions Dr. Cummings expressed that were not included in his Rule 26 report. (Doc. 96 at 43-47). In particular, Defendants contest:
Defendants claim that these opinions prejudiced them because they were "unable to examine and consider the opinions prior to deposing Dr. Cummings" and "they were unable to share with their own experts a Rule 26 report that explained the basis of such opinions and the facts and data supporting them." (Id. at 47).
In response, Patel seems to acknowledge that these opinions are absent from the Rule 26 report, instead calling them "minor omissions." (See Doc. 118 at 2-3). However, Patel argues that Defendants did not suffer any prejudice. (Id.) ("[D]efendants deposed Dr. Cummings at length and did so with the assistance of two experts."). Patel also argues that the opinions are not missing from the report, but are rather implications from the "affirmative opinions." (Id. at 2-3). In support, Patel relies on Dr. Cummings's stricken declarations. (Id. at 3).
Rule 26 is clear that an expert report has to contain "a complete statement of all opinions the witness will express and the basis and reasons for them." FED. R. CIV. P. 26 (a)(2)(B). "Rule 26(a) expert reports must be `detailed and complete,' they must not be sketchy, vague, or preliminary in nature." U.S. v. Ala. Power Co., 274 F.R.D. 686, 688 (N.D. Ala. 2011) (Hopkins, J.) (citing other sources). "Rule 26 disclosures must be made at the times and in the sequence a court orders." Id. "Federal Rule of Civil Procedure 37(c)(1) provides that `[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or was harmless.'" Id. (citing Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008)). The Court has reviewed Dr. Cummings's challenged opinions.
First, regarding the opinion on whether Patel "jerked away," the Court determines that this information was not fairly presented in the Cummings Report. (Cummings Report at 4). Dr. Cummings himself even admitted that he did not see a conclusion in his report relating to Patel's hand or arm movement before the takedown. (See Cummings Deposition at 31). It is difficult for Defendants to depose Dr. Cummings on a topic that he did not include in his report. (See id. at 32).
Second, regarding the opinion whether Officer Parker lost his balance during the takedown, the Court determines that this information was not fairly presented in the Cummings Report. (Cummings Report at 4). Dr. Cummings admitted that he did not have a conclusion in his report that Parker did not lose his balance during the takedown; however, he claims that he analyzed the "leg sweep." (Cummings Deposition at 34). The issue whether or not Officer Parker lost his balance is absent from Dr. Cummings's conclusions. (Cummings Report at 4). While the Cummings Report talks about the leg sweep, Dr. Cummings does not explicitly conclude that Officer Parker did not lose his balance. (See id.). He does not include any analysis of Officer Parker's balance in his discussion (see id. at 5), nor is it clearly raised in his figures section (see id. at 7-47).
Finally, the Court determines that the opinion whether Patel was able to cushion his fall is not clearly presented in the Cummings Report and, for that reason, it should be excluded. (Cummings Report at 4-6).
In conclusion, Dr. Cummings is not qualified to do the sort of analysis that he purported to do in this case, his opinions are not reliable, and his opinions would not be helpful to the jury. Accordingly, the Cummings Motion is
Patel offers the opinions of Jerry Wiley into evidence in this case. Wiley has offered an expert report. (Doc. 113-5, the "Wiley Report"). Wiley was deposed on May 23, 2017, and the deposition transcript was filed into the record. (Doc. 113-1, 113-2, the "Wiley Deposition").
On September 11, 2017, Defendants filed their Joint Motion To Exclude Wiley's Testimony and brief in support. (Doc. 111); (Doc. 112). Patel responded on October 9, 2017. (Doc. 123-1). Defendants replied on November 15, 2017. (Doc. 134). Defendants challenge Wiley's qualifications and "unvarnished legal opinions" under Federal Rule of Evidence 702. (Doc. 112 at 1-5) (emphasis omitted) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Defendants move to exclude this testimony "from consideration on summary judgment or introduction at trial." (Doc. 111 at 3-4).
Wiley is a graduate of the West Jefferson High School. (Doc. 113-5 at 26). He did not obtain a degree from a college, but he did take Photography II at the University of New Orleans. (Id.). He was first employed with the Orleans Parish Sheriff's Office in New Orleans before joining the Birmingham Police Department in 1986. (Id. at 20). His final position with the Birmingham Police Department was Assistant Commander of the Patrol Bureau. (Id. at 21-22). Before then, he was a Commander of West Precinct, Assistant Commander of Administrative Division, Lieutenant Patrol Division, Group Supervisor of HIDTA/DEA Task Force, Sergeant, Vice Narcotics Unit, Narcotics Detective, Vice/Narcotics & Technical Surveillance Unit, and Patrol Division. (Id. at 20-24).
Since 1990, he has attended six significant
Wiley offers several opinions throughout his analysis. (Doc. 113-5 at 1-16). Excerpts of those opinions include:
(Doc. 113-5 at 1-17). During one of his conclusions, Wiley explains the alternative options open to Officer Parker, instead of the takedown. (Id. at 12-13). Finally, Wiley concludes by stating "that Off. Parker knew he had no legally justifiable reason to use force against Mr. Patel but decided to do so anyway. This action was contrary to commonly acceptable police practices and training." (Id. at 16).
Defendants claim that Wiley is not qualified as an expert witness. (Doc. 112 at 25). They portray Wiley as relying solely on his "training and experience" to create the expert report. (Id. at 26). Defendants argue that "Wiley's qualifications to provide expert opinions on the use of force are plainly lacking in each of these respects." (Id.).
Defendants argue that Wiley's training is lacking. (Id.). In support, they argue "that he has not received any formal training on the standards governing use of force or suspect takedowns since he attended the Birmingham Police Academy over 30 years ago." (Id. at 26). They argue that he is unfamiliar with the Strategic Self-Defense & Gunfighting Tactics and the Pressure Point Control Tactics standard training programs. (Id.). Additionally, they argue that he is unfamiliar with current Birmingham Police Academy training or standards from the Alabama Peace Officers' Standards and Training Commission. (Id. at 27). Defendants portray Wiley's resume as containing merely "six training courses spanning a period of twenty-five years." (Id. at 28) (emphasis omitted).
Defendants argue that Wiley's experience is lacking. (Id. at 29). They analogize the present case to that a case from the Northern District of Georgia. (Id at 30) (citing American General Life & Accident Ins. Co. v. Ward, 530 F.Supp.2d 1306, 1313 (N.D. Ga. 2008)). They argue that Wiley did not specially focus on the use of force in his job, "was not accredited in his field of supposed expertise and had no other evidence of proficiency in that field," and did not create use of force policies. (Id. at 27-29). To the extent he did review "use-of-force incident reports," Defendants characterize his role as surface-level. (Id. at 29) (noting that Wiley did not rule on whether the use of force was proper, he just sent the report to his superiors).
In response, Patel asserts that the "challenge to [Wiley's] qualifications goes only to the weight of his testimony and not to admissibility." (Doc. 123-1 at 2). Patel distinguishes Ward by stating that "[t]he expertises required to testify concerning the science of document examination cannot be compared with the experience-based expertise of police experts." (Id.).
Patel urges the Court to follow the decision in Jones v. City of Albertville. (Id. at 3) (citing Jones v. City of Albertville, No. CV-12-S-96-NE, 2014 WL 5473999 (N.D. Ala. Oct. 28, 2014)).
In this case, Wiley is not qualified as an expert witness able to testify about the use of force. In its discretion, the Court finds that Wiley's career does not qualify him, under any prong of Rule 702, to be an expert witness on the use of force. While he started out at a low level in the police force, and worked his way up in the Birmingham Police Department,
It is true that Wiley does not have to "be recognized as a leading authority in the field in question. . . . Gaps in an expert witness's qualifications or knowledge generally go to the weight of the witness's testimony[,] not its admissibility. Thus, Rule 702 takes a liberal approach to expert witness qualification." Leathers v. Pfizer, 233 F.R.D. 687, 692 (N.D. Ga. 2006) (quoting 29 Wright & Gold, FEDERAL PRACTICE AND PROCEDURE; Evidence § 6265 (West 1997)). However, Wiley has not crossed that minimum threshold necessary to qualify him as an expert. There may be many areas where Wiley could be considered an expert, but the use of force is not one.
Defendants contest what they term as Wiley's legal conclusions. (Doc. 112 at 10) ("To the extent that Mr. Wiley affirmatively concludes that Officer Parker violated the Fourth Amendment by acting without reasonable suspicion or probable cause or using excessive force, such opinions invade the province of the Court and the jury and must be excluded."). In support, Defendants cite the Eleventh Circuit in Samples v. City of Atlanta, 916 F.2d 1548 (11th Cir. 1990) for the proposition that experts should not "invade the province of the jury" by answering questions going to the reasonableness of an officer's actions. (Id. at 11-12) (citing Samples, 916 F.2d at 1551).
In response, Patel appears to concede this point. (Doc. 123-1 at 1) ("Patel does not dispute that neither party's expert can establish the law. That is the Court's job.").
The court in Jones stated the applicable principle well:
Jones, 2014 WL 5473999, at *8 (excluding an expert's legal conclusions). For these reasons, the Court
Defendants also move to exclude Wiley's lay opinions. (Doc. 112 at 21). First, they object to Wiley's "opinion that Officer Parker `was consciously documenting a narrative to justify his use of force against Mr. Patel.'" (Id. at 21) (quoting Wiley Report at 14). Second, they object to "[Wiley's] opinions that [Patel] did not pull away
In response, Patel claims that "Wiley is not merely stating what is on the video; he is using his experience to put Parker's statements on the video in context." (Doc. 123-1 at 4). Patel also claims that this testimony is helpful to a jury because it will aid in Patel's "credibility battle" and will help jurors understand "why officers lie on videos about what suspects are doing." (Id. at 5).
In Wiley's deposition, he admitted that, in coming to his opinion on whether Officer Parker was documenting a narrative, he just "read all of the statements that [Officer Parker] made and then I watched the video. And the statements [Officer Parker] made did not jive with what was on the video." (Wiley Deposition at 297).Wiley admitted that this testimony was not based on any scientific principle. (Id. at 298). Further, it did not appear to be based on any training and experience. (Id.).
In this case, Wiley's lay opinions on these issues are not helpful to a jury. A jury is capable of watching the video and determining for themselves these disputed fact issues. Patel's counsel can question officers about their in-video statements versus what the video shows. Counsel also are able to make arguments in their closing. It would be improper to allow "expert" testimony when that expert does not seem to be relying on anything other than his own judgment that does not rely on training and experience. For these reasons, Wiley's lay opinions are
Defendants also question the reliability of Wiley's opinions on prevailing law enforcement standards. (Doc. 112 at 32). They raise several objections. (Id. at 32-45). First, they point out that "Wiley failed to consider a variety of relevant materials from the criminal trials of Officer Parker." (Id. at 33) (citing Wiley Deposition at 216-18, 226-27, 291-92).
In response, Patel says that Wiley is not required to be able to cite cases by name and that Defendants' arguments are for cross-examination. (Doc. 123-1 at 3-4). The Court finds that Wiley's testimony is insufficiently reliable. While Wiley cited Graham v. Connor in his report, he was unable to discuss it at his deposition because of his unfamiliarity with it. (See Wiley Report at 10); (See Wiley Deposition at 87). The Court does not expect expert witnesses to be able to rattle off case names; however, the Court does expect purported experts to be able to display a level of familiarity
Defendants argue that Patel ignores their other arguments and, given Patel's thin briefing, the Court agrees. (Doc. 134 at 10). For this reason, the Court finds that Patel waived those arguments. Even if Patel had not waived those arguments, the Court is concerned by Wiley's consideration of only limited evidence and his lack of familiarity with standard police practices. (See Doc. 112 at 33-39). These faults make Wiley's testimony insufficiently reliable, even if the Court were to consider him an expert witness as proferred.
For the aforementioned reasons, the Court finds that Wiley's testimony is due to be excluded as not reliable.
Finally, Defendants argue that Wiley's testimony is not helpful to the trier of fact. (Doc. 112 at 45). They argue that his testimony "offers nothing more than what lawyers for the parties can argue in closing arguments." (Id.) (quoting Frazier, 387 F.3d at 1263-64). They also point out that allowing Wiley's testimony would be to "lend purported `expert' support to an unscientific lay opinion regarding police practices." (Id. at 46) (citing Trammell v. Paxton, No. 2:06-CV-193, 2008 WL 7514367, at *7 (N.D. Ga. Sept. 29, 2008)).
In response, Patel briefly argues that Wiley's opinions will give context to Officer Parker's actions and aid in Patel's credibility battle. (See Doc. 123-1 at 5).
In this case, the Court is persuaded that Wiley's testimony would not be helpful to the trier of fact. There are numerous issues with the methodology and reliability of Wiley's opinions, as the Court stated above. The jury is capable of watching the video and applying their
In conclusion, the Court excludes Wiley's testimony because he is unqualified as a use-of-force expert and his testimony is unreliable and unhelpful to the jury.
"[T]he trial judge's role as gatekeeper is designed to ensure that the jury, in carrying out its prescribed role, bases its determinations on relevant and reliable evidence, rather than on speculation or otherwise unreliable conjecture." See Frazier, 387 F.3d 1244, 1272. In performing this role, the Court "must not `supplant the adversary system or the role of the jury.'" Id. This is a role that the Court takes very seriously, conscious of the impropriety of overstepping. However, Patel has not made the requisite showings required to admit either Dr. Cummings or Jerry Wiley as an expert in this case. Ultimately, Patel carried the burden on these two witnesses, a burden that he fell well short of meeting. See Cook ex rel. Estate of Tessier, 402 F.3d at 1107.
For the aforementioned reasons, the Court
(Id.).
Fredericks explains why de-interlacing matters:
(Id. at 39).
Jones, 2014 WL 5473999, *5 (internal footnotes omitted). However, Jones is of limited help to Patel because Wiley was never a Chief of Police. (See Wiley Report at 20-22). Further, while the expert in Jones spent 20 years as the Chief of Police, Wiley spent only about 12 in what Patel terms "command-level experience." (See Doc. 123-1 at 2).
Frazier, 387 F.3d at 1261.
