Filed: Mar. 27, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 3-27-2009 Estate of Harry Smit v. City of Wilmington Precedential or Non-Precedential: Non-Precedential Docket No. 08-2615 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Estate of Harry Smit v. City of Wilmington" (2009). 2009 Decisions. Paper 1658. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1658 This decision is brought to you f
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 3-27-2009 Estate of Harry Smit v. City of Wilmington Precedential or Non-Precedential: Non-Precedential Docket No. 08-2615 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Estate of Harry Smit v. City of Wilmington" (2009). 2009 Decisions. Paper 1658. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1658 This decision is brought to you fo..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-27-2009
Estate of Harry Smit v. City of Wilmington
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2615
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Estate of Harry Smit v. City of Wilmington" (2009). 2009 Decisions. Paper 1658.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1658
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2615
ESTATE OF HARRY SMITH III; HARRY SMITH, Jr., Individually
and as Administrator of the Estate of Harry Smith, III;
ROSLYN WOODARD SMITH, Individually and as
Administrator of the Estate of Harry Smith, III,
Appellants
v.
CITY OF WILMINGTON; JOHN CIRITELLA;
THOMAS DEMPSEY; MATTHEW KURTEN
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Civil No. 04-cv-01254)
District Judge: Honorable Gregory M. Sleet
Submitted Under Third Circuit LAR 34.1(a)
March 5, 2009
Before: BARRY, GREENBERG, Circuit Judges, and ACKERMAN,* District Judge
(Opinion Filed: March 27, 2009)
OPINION
*
Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.
BARRY, Circuit Judge
Plaintiffs, parents of Harry Smith III (“Smith”), individually and on behalf of
Smith’s estate, appeal following a jury verdict in favor of the City of Wilmington and
three Wilmington police officers on plaintiffs’ 42 U.S.C. § 1983 claim of excessive force
in violation of the Fourth Amendment and Delaware state law claim for wrongful death.
Plaintiffs also appeal the order of the District Court dismissing their Fourteenth
Amendment due process claim under Federal Rule of Civil Procedure 12(b)(6). Because
the District Court did not err when it admitted certain evidence or when it dismissed
plaintiffs’ Fourteenth Amendment claim, we will affirm the final judgment of the District
Court.
I.
On September 13, 2003, Smith, age 25, sought treatment for mental health
problems at a Wilmington hospital emergency room. Smith found a scalpel in the
emergency room, stabbed himself in the chest, and ran outside. Wielding the scalpel,
Smith approached a parked Mercedes-Benz and tried to gain entry, threatening the driver
seated inside the car. Two police officers, Officer Johnny Whitehead and his partner,
saw this unfolding and got out of their patrol car to confront Smith, leaving the engine
running and emergency lights flashing. Smith jumped into the patrol car.
Smith and Officer Whitehead struggled inside the car, and Officer Whitehead shot
Smith once in the leg. Smith nevertheless gained control of the patrol car and drove off.
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About two dozen officers participated in the pursuit of Smith after notification by radio
that shots had been fired and a police car had been stolen (the radio did not notify the
officers of the attempted carjacking).
Officers blocked an intersection with their cars, at which point Smith drove
toward the officers. Officers John Ciritella, Matthew Kurten and Thomas Dempsey
responded by firing their weapons at the car as Smith continued to drive. A total of 31
bullets were fired; it was later discovered that Smith was killed by a bullet to the head
fired from Officer Ciritella’s weapon.
Smith’s parents brought suit on behalf of themselves and Smith’s estate with only
§ 1983 excessive force and state-law wrongful death claims going to trial. On April 17,
2007, after a seven-day trial, a jury found in favor of defendants on both claims.
II.
Plaintiffs argue on appeal that the District Court erred when it allowed evidence
of the attempted carjacking that preceded the police pursuit and when it allowed
testimony from Dr. Jon Nordby, a forensic expert, as to his expert opinion about Smith’s
body position when the bullet entered his head. Plaintiffs also argue that the Court erred
when it dismissed their Fourteenth Amendment claim.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District
Court’s evidentiary rulings for abuse of discretion and its order of dismissal under Rule
12(b)(6) de novo.
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A. Attempted Carjacking
Plaintiffs argue that the District Court erred when it admitted evidence of the
attempted carjacking because that evidence was unduly prejudicial and irrelevant. We
disagree.
Prior to trial, plaintiffs moved to exclude any evidence that Smith was involved in
an attempted carjacking prior to his interaction with Officer Whitehead. The Court ruled
that evidence of the confrontation surrounding the Mercedes was probative, but elicited
the agreement of the defense that it would not seek to characterize the confrontation as a
carjacking, thus limiting whatever prejudice that evidence may have caused. Despite
this, counsel for plaintiffs stated, in her opening statement:
Harry Smith, III then ran up to a gentleman who was in a Mercedes, a gray
Mercedes, and was bamming on the car door and pulling on the car door, as
though he was trying to enter that car. He had moments before been
diagnosed as having hallucinations, mental health problems, and they had
already at the hospital proceeded to check him in. The gentleman in the
gray Mercedes thought he was being carjacked. He was scared and he
should have been. (Supp. App. at 283.)
The District Court correctly concluded that evidence of the attempted carjacking
was relevant to provide context regarding the confrontation between Smith and Officer
Whitehead and probative of how Smith came to be behind the wheel of the patrol car.
After weighing the probative value of the evidence against the potential for unfair
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prejudice, the Court declined to exclude the evidence.1 The Court did not abuse its
discretion in so doing.
B. Admissibility of Expert Testimony
We review a District Court’s decision to admit expert testimony for abuse of
discretion. Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008).
Plaintiffs argue that the District Court should not have permitted Dr. Nordby to
testify as to Smith’s body position when the bullet entered his head because Dr. Nordby
could not have determined the bullet’s trajectory without the window glass, which the
parties agree was shattered and therefore unavailable for analysis. Plaintiffs first raised
this argument in a motion in limine; the Court denied the motion, recognizing that Dr.
Nordby’s opinion regarding the bullet’s trajectory did not rely on the glass, but on the
blood stain pattern evidence inside the vehicle and the report of the medical examiner.
During argument on the motion, the Court suggested that plaintiffs’ concerns about the
factual basis for Dr. Nordby’s testimony could be resolved via cross examination, which
had already taken place (Dr. Nordby’s testimony was videotaped). In response to the
Court’s question, the following significant exchange took place:
1
In any event, and as d efendants point out, plaintiffs waived their right to challenge
this ruling when they called Officer Whitehead in their case-in-chief and questioned him
about the attempted carjacking. See Ohler v. United States, 529 U.S. 753, 755 (2000)
(holding that a criminal defendant waived his right to appeal an unfavorable ruling on his
motion in limine when he testified to the evidence on direct examination for strategic
purposes); see also Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc.,
439 F.3d 894,
904 (8th Cir. 2006) (extending this principle to evidence in a civil trial).
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Counsel: But as we have been going through the motion, what I
believe is that the appropriate way to deal with this expert is
with the cross that I have done.
The Court: So are you withdrawing the motion?
Counsel: I am leaving the motion there.
The Court: I am going to deny the motion. (App. at 235.)
Because plaintiffs conceded that cross examination was an appropriate way to deal
with Dr. Nordby’s testimony, effectively failing to object to admission of the evidence,
we review for plain error, and see none here. See United States v. Mornan, 413 F.3d
372, 379 (3d Cir. 2005). But whether we review for plain error or for abuse of
discretion, we find no error in the Court’s determination that Dr. Nordby had a sufficient
factual basis for his opinion as to Smith’s body position.
C. Fourteenth Amendment Claim
Plaintiffs argue that the District Court erred when it dismissed their Fourteenth
Amendment due process claim because it erroneously concluded that the claim was for
loss of companionship, when the claim was actually based on a property interest created
by Delaware’s wrongful death statute.2 Even if plaintiffs could establish a
constitutionally protected property interest created by the Delaware statute, they
submitted no evidence that they were deprived of this interest by a person acting under
2
To the extent that plaintiffs’ claim is properly characterized as a claim for loss of
companionship, the District Court correctly concluded that the parents’ interest in the
companionship of their independent adult child is not a constitutionally protected liberty
interest within the meaning of the Due Process Clause. See McCurdy v. Dodd, 352 F.3d
820, 830 (3d Cir. 2003).
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color of state law, as they were required to do under 42 U.S.C. § 1983. Indeed, plaintiffs
fully litigated their wrongful death claim at trial and fail to show how the pretrial
dismissal of the Fourteenth Amendment claim impacted the result of the trial in any way.
III. Conclusion
We will affirm the judgment of the District Court.
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