VIRGINIA M. KENDALL, District Judge.
In 1995, Plaintiff Dean Cage was accused and convicted of raping Loretta Zilinger, a teenage girl. After serving 12 years in prison, DNA testing proved Cage did not commit the rape. The State of Illinois thereafter agreed to vacate his conviction. After his exoneration, Cage filed suit against the City of Chicago, Chicago Police employees Andrew Jones, John Ervin, Cecilia M. Doyle, and Pamela Fish, alleging claims under 42 U.S.C. § 1983. Specifically, Cage alleges that the Defendants denied him a fair trial in violation of his Due Process rights by withholding exculpatory evidence, fabricating evidence and false reports, misleading and misdirecting the his criminal prosecution, and using unduly suggestive identification procedures. Cage also asserts constitutional claims for false imprisonment, malicious
On February 11, 2013, the Court commenced Daubert hearings to evaluate the proposed testimonies of Plaintiff's expert witnesses Gary Harmor and Charles Alan Keel, and Defendants' expert Witnesses Lucy Davis, Barry Spector, and Dan Bergman. The Court informed the parties that their filings were sufficient to arrive at a determination regarding the proposed testimony of Plaintiff's expert witness Dr. Brian Cutler. At the conclusion of the hearings, the parties resolved amongst themselves all then-outstanding objections related to the testimony of Dan Bergman. (Tr. 2/13/13, pp. 219-20.) Additionally, the parties were able to resolve through the briefing process two of Cage's three Daubert objections related to the proffered testimonies of Lucy Davis and Barry Spector. In the aftermath of all of this, the following motions remain pending before the Court: (1) Defendants' Motion to Bar the Testimony of Gary Harmor (Dkt. 163); (2) Defendants' Joint Motion No. 1 to Bar Plaintiff's Expert, Charles Alan Keel's, Testimony and Opinions (Dkt. 169); (3) Defendants' Joint Motion No. 2 to Bar Plaintiff's Expert, Charles Alan Keel's Testimony Regarding Defendant Pam Fish's Alleged Fraudulent Intent/Credibility in Testifying Concerning Serological Analysis Performed in Unrelated Criminal Cases (Dkt. 171); (4) Plaintiff's Motion to Bar Testimonies of Lucy Davis and Barry Spector (titled "Plaintiff's Daubert Motions") (Dkt. 165); and (5) Defendants' Motion to Exclude the Testimony of Dr. Brian L. Cutler (Dkt. 162.)
"The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)." Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir.2009) (citing Naeem v. McKesson Drug Co., 444 F.3d 593, 607 (7th Cir. 2006)). Rule 702 charges trial judges with the responsibility of acting as "gatekeeper[s] with respect to testimony proffered under Rule 702 to ensure that the testimony is sufficiently reliable to qualify for admission." Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir.2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). "The purpose of [the Daubert] inquiry is to vet the proposed testimony under Rule 702's requirements that it be `based on sufficient facts or data,' use `reliable principles and methods,' and `reliably appl[y] the principles and methods to the facts of the case.'" Lapsley v. Xtek, Inc., 689 F.3d 802, 804 (7th Cir.2012) (quoting Fed. R.Evid. 702). In evaluating whether an expert's proposed testimony meets the Daubert standard, the Court is to "scrutinize the proposed expert witness testimony to determine if it has `the same level of intellectual rigor that characterizes the practice of an expert in the relevant field' so as to be deemed reliable enough to present to a jury." Lapsley, 689 F.3d at 805 (quoting Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167). Whether to admit expert testimony rests within the discretion of the district court. See Gen. Elec. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139
Under Rule 702, "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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; see also Ortiz v. City of Chicago, 656 F.3d 523, 526 (7th Cir.2011). Rule 702 calls for a conjunctive test and thus expert testimony must meet all five requirements to be admissible; failure on any prong is fatal to admissibility. Each requirement has been thoroughly explored in the case law and each requires a separate analysis, although the last two — reliability of principles and methods and reliable application — are closely related.
Thus, as a practical matter, district courts apply the Daubert framework described above using a three-part analysis. Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir.2010). First, the Court must determine whether the proposed witness is qualified as an expert by knowledge, skill, experience, training, or education. If so, the Court must then decide whether the reasoning or methodology underlying the expert's testimony is reliable. If these two requirements are met, the Court must assess whether the expert's proposed testimony will assist the trier of fact in understanding the evidence or to determine a factual issue. See Myers, 629 F.3d at 644 (citing Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir.2007)). In addition, the Court will only address those opinions brought to the Court's attention and will not separately probe each expert's report and issue sua sponte determinations regarding the admissibility of each statement under Daubert. See, e.g., Goldberg v. 401 North Wabash Venture LLC, No. 09 C 6455, 2013 WL 212912, at *1 n. 1 (N.D.Ill. Jan. 18, 2013).
Police crime laboratories operated by state and municipal governments are tasked with forensic examination (fingerprints, blood typing, DNA analysis, etc.) regarding crime-related evidence. This includes clothing and bodily fluids such as semen, sperm, and saliva. Forensic analysts known as "criminalists" perform these tests and relay their findings in the form of signed laboratory reports to prosecutors, defense attorneys, and courts. Before the proliferation of DNA analysis, most testing of bodily fluids involved blood typing or serological analysis, the purpose of which was to determine whether the
In the mid-1990s, DNA analysis became prominent. As a result, crime laboratories continued to employ serological tools to locate and recover bodily fluids from crime evidence but also attempted, if possible, to create DNA profiles from such fluids. The DNA profile, if generated, would then be compared to the DNA profile of the alleged perpetrator. However, where the initial serological tests failed to reveal bodily fluid on the crime evidence, no DNA analysis is conducted and the resulting reports are the same as a negative pre-DNA serological report.
During the course of the criminal investigation following Zilinger's rape, physical evidence was collected from Zilinger's underwear and tested by Defendant and then-Chicago Police Department Crime Laboratory ("CPD Crime Lab") analyst Cecilia M. Doyle. The specific test Doyle conducted is called an acid phosphatase test ("AP test"). Doyle conducted this test by swabbing a sample of fluid from Zilinger's underwear and performing a chemical test on that sample. The resulting March 9, 1995 lab report (the "Zilinger Report"), created by Doyle and reviewed by Defendant Pamela Fish, states in relevant part that "[c]hemical tests for the presence of semen [were] conducted on extracts of," among other things, the victim's underwear, but "yielded negative results." (Zilinger Report, Dkt. 163, Ex. 2.) Cage argues that by using the term "extracts" in the Zilinger Report, Doyle misrepresented the type of tests performed on the Zilinger's clothing because the term "extracts" in this context implied the use of Prostate Specific Antigen ("P30" or "PSA")
Gary Harmor, the Chief Forensic Serologist
Harmor offers four separate but related opinions regarding the Zilinger Report. First, Harmor opines that the term "extracts" as used in the report would have indicated to a DNA practitioner that slides were created and searched microscopically for sperm. (Harmor Report, Dkt. 163, Ex. 3, ¶ 8). Second, Harmor opines that Doyle misrepresented the actual testing performed on the semen sample because she used the term "extract" in the Zilinger Report. (Id. ¶ 12.) Third, Harmor concludes that Fish's review of Doyle's report did not comport with industry standards. (Id. ¶¶ 10-13). Specifically, Harmor states that "[l]aboratory reports and supporting documentation should be reviewed to verify that the conclusion(s) drawn are supportable by the tests that were performed and [that] the results obtained ... are appropriate." (Id. ¶ 10.) Harmor determined that the administrative review Fish claims to have performed in the Zilinger case — which included checking the RD number, comparing the list of exhibits in the submission documents to the report, and ensuring that the pages in the case file were numbered — "does not meet the minimum standards that [he] would expect from a laboratory doing examinations for biological fluids on items of evidence for use in a court of law." (Id.) Harmor asserts that "it is scientifically unacceptable for any laboratory to conduct the testing in this manner and then report their findings inaccurately in a criminal matter." (Id. ¶ 13.) Fourth, Harmor opines that Fish would have discovered and prevented the misreporting if she had conducted a proper substantive review by comparing Doyle's actual work and underlying documentation to the way her findings were conveyed in the Zilinger Report. (Id. ¶¶ 10, 12).
Harmor is qualified to offer the opinions described above. He received his Bachelor's degree in Forensic Science from the California State University in 1976 and began working at SERI in 1978 as a Senior Forensic Serologist. (Tr. 2/13/13, p. 23.) In that capacity, Harmor was responsible for the technical review of lab analyses and reports and for the interpretation of laboratory protocols. (Harmor CV, Dkt. 184, Ex. A, p 8.) In 2012, Harmor became SERI's Chief Forensic Serologist and Executive Director. (Id. at 7.) As Chief Forensic Serologist, Harmor oversees "quality assurance, safety, and
Based on this experience, which encompasses the relevant time period and includes the review of countless lab reports, Harmor is qualified to offer opinion testimony regarding (1) the meaning of the term "extract" to DNA practitioners; (2) whether Doyle's use of the term was misleading given the actual testing performed; (3) whether Fish's review of Doyle's report comported with generally accepted standards in the field of serology; and (4) whether Fish would have been able to detect the misrepresentation by comparing report to the testing performed.
Next the Court must decide whether the reasoning or methodology underlying Harmor's opinion is scientifically reliable. In this case, Harmor's conclusions pertaining to Fish's review of the Zilinger Report and the meaning of the term "extract" are based primarily on his experience in the field of forensic serology and in part on the American Society of Crime Laboratory Directors Laboratory's ("ASCLD-Lab") 1994 Accreditation Criteria Standards, which set forth the criteria for administrative and conclusion review. (Harmor Report, ¶¶ 10, 13.) These opinions are not derived from any formula, test, survey, statistical analysis, or technical evaluation.
"Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience." Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir.2000); accord Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir.2010); see also Kumho Tire Co., 526 U.S. at 153, 119 S.Ct. 1167 ("[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience."); Jordan v. City of Chi, No. 08 C 6902, 2012 WL 254243, at *3 (N.D.Ill. Jan. 27, 2012) ("An expert may be qualified to render opinions based on experience alone."). Indeed the Advisory Committee Notes to Rule 702 provide:
Fed.R.Evid. 702. Thus, "expert[] testimony is not unreliable simply because it is founded on his experience rather than on data." Metavante Corp., 619 F.3d at 761; see, e.g., Peoples State Bank v. Stifel, Nicolaus & Co., Inc., 2013 WL 1024917, at *5 (S.D.Ind. Mar. 24, 2013) (finding the methodology and reliable-facts-and-data factors of the Daubert inquiry "not very helpful" where expert relied principally on twenty-five years of experience in the industry; in such cases, the "relevant reliability concerns... focus upon personal knowledge or experience") (quoting Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167); Goldberg, 2013 WL 212912, at *5 (rejecting defendant's argument that expert's "methodology is unreliable because he applies personal experience and knowledge of industry customs and practices to actions taken by defendants," finding that the expert's opinion is "not inherently unsound because it is founded on his experience rather than on data").
More specifically, an expert witness may opine on the accepted meaning (or lack thereof) of a word or phrase within a particular industry based his or her experience and training. See Lakeside Feeders, Inc. v. Producers Livestock Marketing Ass'n, 666 F.3d 1099, 1111 (8th Cir.2012) ("Courts have frequently recognized the value of expert testimony defining terms of a technical nature and testifying as to whether such terms have acquired a well-recognized meaning in the business or industry.") (quoting Nucor Corp. v. Neb. Pub. Power Dist., 891 F.2d 1343, 1350 (8th Cir.1989)); see, e.g., Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867 (5th Cir.2013) (expert witness allowed to opine on the software industry's understanding of certain terms based on his experience and training in the software industry); Van Straaten v. Shell Oil Products Co. LLC, 678 F.3d 486, 489 (7th Cir.2012) (admitting expert testimony "that the payment-card industry understands `account number' and the ISO's `primary account number' to be the same thing"); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 818 (7th Cir.1999) (noting that parties submitted "competing expert testimony regarding the industry definition of `wax'"); cf. Bank of China, New York Branch v. NBM LLC, 359 F.3d 171, 182 (2d Cir.2004) (witnesses testimony regarding definitions of banking terms reflected specialized knowledge based on his extensive experience in international banking and thus should not have been admitted pursuant to Rule 701 but "[o]f course, these opinions may, nonetheless, have been admissible pursuant to Rule 702 ..."). Similarly, experts may rely on their professional experience to offer opinion testimony regarding the standard of care and generally-accepted industry standards. See, e.g., WH Smith Hotel Servs., Inc. v. Wendy's Int'l, Inc., 25 F.3d 422, 429 (7th Cir.1994) (affirming admission of expert testimony on customs in the commercial real estate industry); Baldonado v. Wyeth, 04 C 4312, 2012 WL 3234240, at *3-6 (N.D.Ill. Aug. 6, 2012) (denying Daubert challenge to expert who would opine on the standard of care in the pharmaceutical industry where expert "[brought] to bear her experience and training on the issue" and "repeatedly emphasized during her testimony that her opinions are not subjective, but are instead based on training and experience and having done the same process"); In re Yasmin and Yaz (Drospirenone) Mktg. Litig., MDL No. 2100, 2011 WL 6740391, at *12 (S.D.Ill. Dec. 22, 2011) (plaintiffs "may ask a witness, who has familiarity with other pharmaceutical companies, if
Accordingly, Harmor's reliance on the 1994 ASCLD-Lab standards and his thirty years of experience as a serologist, which includes interpreting and overseeing laboratory protocol and reviewing lab reports generated by SERI and other laboratories, constitutes a sufficient basis for his opinions regarding the meaning of the term "extract" and Fish's review of the Zilinger Report.
The Court must also assess whether Harmor's proposed opinions will assist the jury in determining a factual issue. See Myers, 629 F.3d at 644. This is essentially a relevance inquiry. Porter v. Whitehall Labs., Inc., 9 F.3d 607, 613 (7th Cir.1993) ("Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.") (quoting Daubert, 509 U.S. at 591, 113 S.Ct. 2786); see also Roman v. Western Mfg., Inc., 691 F.3d 686, 694 (5th Cir.2012) ("To be `helpful' under Rule 702, the evidence must possess validity when applied to the pertinent factual inquiry.... Principally this is a matter of relevance.") (internal quotations omitted); Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1184 (9th Cir.2002) ("Whether testimony is helpful within the meaning of Rule 702 is in essence a relevancy inquiry."); United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.1985) ("An additional consideration under Rule 702 — and another aspect of relevancy — is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.").
Defendants argue that Harmor's testimony regarding the meaning of the term "extract" should be excluded pursuant to Federal Rule of Evidence 403 as unfairly prejudicial and confusing because it does not purport to explain how a layperson (as opposed to a DNA practitioner) would have interpreted the term in 1995. This argument misconceives the purpose of Harmor's testimony and Cage's theory of liability. Defendants are correct that Harmor's understanding of how a DNA practitioner would interpret the word "extract" says very little about how a lay person might interpret the term. However, Cage's allegations against Fish and Doyle do not implicate the layman's understanding of "extract." Rather, Cage alleges that Doyle created a misleading report by using terminology that, when read in the context of a serological report, implies the use of testing that she had not in fact performed and that Fish, Doyle's supervisor, either conducted an in-depth review of the report, recognized the misrepresentation, and ignoring that misrepresentation, allowed the report to be produced anyway, or acted with deliberate indifference by performing a cursory "rubber-stamp" review of the report in a manner that fell short of nationally established standards and thus did not catch the misreporting. Under either theory of liability, Harmor's
Defendants next argue that Harmor's conclusions regarding the meaning of "extract" and the duties of crime lab supervisors should be barred as irrelevant and confusing because Harmor contradicted his own conclusions during his deposition. Specifically, the Defendants assert that Harmor: (1) conceded that there are not and were not in 1995 nationally accepted standards governing the language that must be contained in a serology lab report; (2) defined the term "extracting" broadly to mean "tak[ing] biological material [from a] garment," effectively admitting the Defendants' argument that "extract" is not and was not in 1995 as scientifically significant a term as Cage makes it out to be; and (3) conceded that Doyle conducted a technical review of her own report and that the nationally accepted standards in 1995 did not require that technical review be performed by someone other than the report writer, but rather allowed for review by the same person that made the report.
As the Court informed the parties during the Daubert hearing, these objections concern the weight that should be accorded to Harmor's testimony and are not proper bases for exclusion. (Tr. 2/12/13, p. 232-33.) The Defendants will be free to explore on cross-examination any testimony suggesting that Harmor made inconsistent statements or equivocated when confronted with his report at his deposition. At this stage in the proceedings, however, the Court's inquiry is focused on Harmor's qualifications and his methods, not his results. See Lapsley, 689 F.3d at 805 ("A Daubert inquiry is not designed to have the district judge take the place of the jury to decide ultimate issues of credibility and accuracy .... [T]he accuracy of the actual evidence is to be tested before the jury with the familiar tools of `vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.'"); see also Wielgus v. Ryobi Technologies, Inc., No. 08 C 1597, 2012 WL 3643682, at *3 (N.D.Ill. Aug. 23, 2012) ("[T]he trial court's role as gatekeeper is not intended to replace cross-examination and the presentation of conflicting evidence as traditional mechanisms for highlighting weaknesses in the expert's testimony.") (citing Spearman Indus. v. St. Paul Fire & Marine Ins. Co., 128 F.Supp.2d 1148, 1150 (N.D.Ill.2001)) (internal quotations omitted).
Relatedly, Defendants maintain that Harmor's second and fourth opinions — that Doyle's report was misleading and that her misrepresentation would have been caught through adequate review, respectively — should be barred because they rest on Harmor's flawed conclusion regarding the meaning of the term "extract." Having found Harmor's opinions regarding the term "extract" relevant and admissible, these objections are also denied.
The portions of Zilinger's underwear that had not been consumed by the CPD Crime Lab and other laboratories were transferred to SERI for testing in 2011. (Harmor Report, ¶ 16.) R. Wraxall, SERI's then-Chief Forensic Serologist and Executive Director, performed the first tests on the underwear. (Tr. 2/13/13, p. 32.) Dr. Wraxall began by cutting pieces of the underwear that could potentially contain stains. (Id.) He identified these
After performing the AP test, Dr. Wraxall removed seven samples from the underwear and drew from them an "extraction using an aqueous solution." (Tr. 2/13/13, p. 72.) Harmor explained that this process involves "taking a piece of the cutting cloth, putting it into fluid, soaking it and then vortexing it, mixing it really fast, then centrifuging it to remove the biological materials that dissolve into water as well as the cellular material from the fabric." (Id.) In July 2011, Dr. Wraxall and another SERI analyst, Marissa Meininger, conducted a PSA Card test on certain parts of the aqueous extract. (Id. 33.) The PSA Card test is more sensitive than the standard P30 test and was not available to crime laboratories in the mid-1990s. (Id.) Dr. Wraxall and Meininger drew their sample from a 6x6 millimeter cutout from a portion of the victim's underwear identified as "25a" ("Section 25a") (Id. 38.)
PSA Card test results are displayed in the form of a pink line known as the "T line." (Id. 34.) Harmor explained that "the darker the color pink, the stronger [the result], and the weaker looking, the weaker it is, the less P30 [protein] that is present." (Id.) SERI's July 2011 test on Section 25a of Zilinger's underwear returned a "barely visible" pink line. (Id.) Dr. Wraxall and Meininger interpreted this as a "very weak positive" result. (Id. 33-34.) That result was confirmed by Amy Lee, another SERI analyst (Id. 34.) Harmor testified that even a very weak positive result is considered a positive result from a forensic perspective. (Id. 35-36.) He added that weak positive result in no way implies a less reliable result but "simply means that there's less [P30] in the sample, so it gives a weaker signal." (Id. 36.)
After conducting the PSA Card test, Dr. Wraxall engaged in a process known as "differential digest," which is used to separate sperm DNA from vaginal donor DNA. (Id. 37.) After detecting sperm DNA in two areas of the extract, Dr. Wraxall performed a second PSA Card test on August 24, 2011. (Id. 37, 78.) The August 2011 test yielded a negative result. (Id. 37, 79.) On July 16, 2012, Harmor performed a third PSA card test. (Id. 38.) This third test, like the first, yielded a positive result.
Defendants do not dispute that Harmor's experience and training qualify him to offer an opinion based on the results the PSA Card test.
The Defendants' argument again unduly simplifies Cage's theory of liability. Cage's claim is not simply that Doyle failed to conduct tests that would have excluded him as a suspect. Rather, Cage alleges that Doyle, Fish, and others engaged in malicious prosecution and conspired to deprive him of his constitutional rights by "endeavor[ing] to stretch and manipulate the facts and evidence to fit the false hypothesis that he was guilty of the crime." (Second Amended Complaint, ¶ 27.) At trial, Cage seeks to prove this allegation by showing that Doyle and Fish issued a misleading report that gave prosecutors and Cage's criminal defense attorneys the false impression that P30 testing had been performed when in fact it had not. Thus in Cage's view, Doyle and Fish are liable not because the CPD Crime Lab did not test Zilinger's underwear for the P30 protein, but because they "fabricated false reports" that led his criminal defense attorneys to believe the evidence against him was more ironclad than her actual lab work suggested. (Id. ¶ 48.) Under this theory of liability, whether P30 testing was required in 1995 is neither here nor there.
The Court nevertheless recognizes Defendants' concern that Cage's criticism of Doyle for failing to perform the P30 test, taken together with Harmor's opinion that the test could have excluded Cage as a suspect, may mislead the jury into believing the Defendants should be held liable for failing to perform all available testing. However this concern does not warrant exclusion under Federal Rule of Evidence 403 for two reasons: first, testimony that P30 testing would have excluded Cage as a suspect is, for the reasons described above, highly probative to Cage's malicious prosecution and conspiracy claims; and second, a proper jury instruction can effectively mitigate any prejudicial, misleading, or confusing impact of the testimony. Accordingly, the Defendants may, at the appropriate time, propose a limiting instruction to narrow the jury's consideration of this evidence.
Defendants next contend that Harmor's conclusion is speculative because the PSA Card tests Dr. Wraxall and Harmor performed in 2011 and 2012 were more sensitive than any P30 test available in 1995. Because SERI's test was more technologically advanced, argue the Defendants, the fact that Harmor and Wraxall obtained positive results does not support the inference that Doyle would have obtained the same result, especially given that even the more sensitive PSA Card test SERI employed
In observance of its gatekeeper's duty, the Court must assess not only the expert's methodology but also the reliability of the expert's application of that methodology to the facts of the case. See Fed.R.Evid. 702(c, d); Joiner, 522 U.S. at 146, 118 S.Ct. 512; Fuesting v. Zimmer, Inc., 421 F.3d 528, 536 (7th Cir.2005), vacated in part on other grounds, 448 F.3d 936. Defendants' speculation objection, properly understood within the Daubert framework, is essentially a challenge to Harmor's application of SERI's PSA Card test results to the facts.
At the Daubert hearing, Harmor admitted that the modern PSA Card test SERI used to test samples from Section 25a is "more discriminating" or "more sensitive than the P30 crossover system" used by crime laboratories in the 1980s and '90s. (Tr. 2/13/13, p. 33.) Harmor explained, however, that his conclusion that Doyle could have detected the P30 protein using then-available technology is nevertheless sound based on two theories: (1) the crotch panel of Zilinger's underwear, which was available to Doyle in 1995 but had been fully consumed by 2011, had more seminal fluid than the periphery of the underwear available to SERI because seminal material comes out of the vaginal area and collects in crotch panel after a sexual assault (the "periphery theory"); and (2) DNA degrades over time and therefore the amount of P30 protein left in the underwear fabric by 2011 was significantly lower than the amount present when Doyle tested the underwear in 1995 (the "DNA degradation theory"). (Harmor Report, ¶¶ 17-20.) The Court's Daubert hearings focused primarily on the reliability of these assumptions, both of which the Defendants challenge.
By the time SERI performed the PSA Card test on Zilinger's underwear in 2011, a total of fifteen different pieces of the undergarment had been cut, removed, and consumed through prior testing. (Tr. 2/13/13, p. 42-43.) The front crotch panel of the underwear, though available to the CPD Crime Lab, Strand Laboratory, and Orchid Cellmark, was no longer available by the time SERI obtained what remained of the fabric. This is significant, explains Harmor, because when a female sexual assault victim puts clothing on after a sexual assault, the seminal fluid is not distributed evenly but instead "drains out of the vagina onto the object of clothing that the
Defendants argue that even if Zilinger put her underwear on after the assault, Harmor's opinion is speculative and should not be admitted because he has failed to provide any scientific support for the theory that seminal material accumulates in the crotch panel of the underwear. Harmor concedes there is no scientific test or study that supports his theory that there would have been more semen on the crotch panel. (Id. 130-131.) However, Harmor testified that he has performed forensic testing in several sexual assault cases and that based on his experience from those prior cases, semen tends to accumulate in and around the crotch portion of the underwear after a sexual assault. (Tr. 2/13/13, p. 44.) As the Court stated previously, Rule 702 specifically permits the admission of expert testimony where the expert's knowledge is based on experience. See Metavante Corp., 619 F.3d at 761 ("Expert[] testimony is not unreliable simply because it is founded on his experience rather than on data."); Walker, 208 F.3d at 591; see also Jordan, 2012 WL 254243, at *3 ("An expert may be qualified to render opinions based on experience alone."); see also Fed.R.Evid. 702 advisory committee's notes (2000 amends.) Accordingly Harmor is permitted to draw a conclusion regarding the distribution of semen in a victim's underwear following a sexual assault "from a set of observations based on [his] extensive and specialized experience" with sexual assault cases. Kumho Tire, 526 U.S. at 153, 119 S.Ct. 1167.
The fact that Harmor cannot say with scientific certainty that there was more sperm in the crotch panel than in the periphery, (Id. at 157, 119 S.Ct. 1167), is not a basis for exclusion under Rule 702. Rule 702 does not require "that an expert's opinion testimony be expressed in terms of a reasonable scientific certainty in order to be admissible." Stutzman v. CRST, Inc., 997 F.2d 291, 296 (7th Cir.1993) (quoting United States v. Cyphers, 553 F.2d 1064, 1072-72 (7th Cir.1977)); see also Walker, 208 F.3d at 587 ("From Dr. Pliskin's testimony, the jury could choose to infer that any electrical trauma Mr. Walker suffered caused his decline in IQ .... His testimony could assist the trier of fact even if he cannot say with complete certainty that electrical trauma caused Mr. Walker's declining in function."). Rather, the Seventh Circuit "adhere[s] to the rule that an expert's lack of absolute certainty goes to the weight of his testimony, not the admissibility." Stutzman, 997 F.2d at 296 (district court properly admitted doctor's expert testimony that plaintiff's preexisting condition could have been aggravated by an
Defendants' remaining challenges to Harmor's periphery theory and the conclusions derived therefrom do not implicate Daubert. At numerous points in the hearing, the Court reminded the parties that Daubert hearings are limited in scope and are not to be used as a vehicle to offer the Court preview of summary judgment arguments. See Apple, Inc. v. Motorola, Inc., No. 11-cv-8540, 2012 WL 1959560, at *2 (N.D.Ill. May 22, 2012) (Posner, J.) (stating that "even where expert testimony is admissible, it may be too weak to get the case past summary judgment.") (citing Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir.2011) (distinguishing between the admissibility of evidence and its sufficiency and upholding a grant of summary judgment on the ground that the expert testimony offered in opposition to a motion for summary judgment, though admissible under the Daubert standard, did not preclude summary judgment)). Despite the Court's instructions, both sides appeared incapable of resisting the temptation to delve into substantive matters having nothing to do with the motions presently before the Court.
First, the Defendants argue that Harmor's opinion should be excluded because Cage has failed to provide support for Harmor's factual assumption that Zilinger put her underwear on after being sexually assaulted. The law does not support exclusion on this basis. "The soundness of the factual underpinnings of the expert's analysis" is a "factual matter[] to be determined by the trier of fact, or, where appropriate, on summary judgment." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.2000). The Advisory Committee's Notes to Fed.R.Evid. 702 provide:
Fed.R.Evid. 702, advisory committee's note (2000 amends.); see also Scott v. Chuhak & Tecson, P.C., No., 2011 WL 4462915, at *5 (N.D.Ill.2011) ("[A]n expert opinion cannot be based on facts that are contradicted by undisputed evidence. He may, however, rely on his client's version of any disputed facts."); see, e.g., In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154, 165 (S.D.Ind.2009) (denying request to strike expert's opinion where expert assumes facts based on his review of evidence even though opponent submitted evidence contradicting his assumptions). In this case, Cage proffers that the testimony of police officers, bystanders, and Zilinger herself will support Harmor's factual assumption that Zilinger put her underwear on after the attack. On the other hand, Defendants, relying on Zilinger's deposition testimony, argue that the record contradicts Cage's version of events.
Second, Defendants highlighted the fact that two other laboratories, Strand Laboratory and Orchid Cellmark, both performed DNA testing on vaginal swabs from the crotch panel of Zilinger's underwear and, like the CPD Crime Lab, were unable to detect the presence of sperm. (Id. 121-22.) Harmor admitted that this evidence contradicts his view that there would have been more seminal material in the crotch panel. (Id. 122, 128, 133.) However, the fact that another laboratory obtained a different result is an issue the trier of fact may consider when determining how much weight to give to Harmor's conclusion; it does not bear on admissibility for the purposes of Daubert. See Lapsey, 689 F.3d at 805 ("[T]he accuracy of the actual evidence is to be tested before the jury with the familiar tools of `vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.'").
Furthermore, even assuming contrary results from other laboratories results were relevant for the purpose of assessing the reliability of Harmor's methodology, Defendants' position that Strand and Cellmark's results conclusively undermine Harmor's opinion appears highly debatable given that neither Strand nor Cellmark performed P30 testing. (Id. 131.) Instead both laboratories performed a "presumptive test" using a vaginal swab. (Id.) Harmor explained that by the time Strand and Cellmark tested Zilinger's underwear, the only biological material remaining would have been contained in the interior part of the cotton, which presumably would be difficult to capture using a swabbing technique. (Id. 121.) Thus, contrary to Defendants' suggestions, Strand and Cellmark's results do not compel the conclusion that P30 testing of the crotch panel also would have failed to detect the presence of semen. In any event, Defendants will be free to argue and present evidence that Strand and Cellmark's results cast doubt on Harmor's theory regarding the distribution of seminal material.
Third, Defendants take issue with SERI's documentation of the tests it performed on Zilinger's underwear. Specifically, Defendants point to the fact that neither Dr. Wraxall's original report nor Harmor's addendum mention that SERI's second PSA Card test yielded a negative result. When asked to explain the omission, Harmor testified that Dr. Wraxall did not include the negative result in his report
Notwithstanding the potential weight of SERI's documentation error, Defendants have not argued, offered evidence, or elicited testimony suggesting the methodology Dr. Wraxall and Harmor employed in conducting the PSA Card tests was flawed. See Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir.2007) ("The focus of the district court's Daubert analysis must be solely on principles and methodology, not on the conclusions they generate."). "The biggest challenge to the judge at a Daubert hearing ... is to distinguish between disabling problems with the proposed testimony, which are a ground for excluding it, and weaknesses in the testimony, which are properly resolved at the trial itself on the basis of evidence and cross-examination." Apple, Inc., 2012 WL 1959560, at *2 (emphasis added); see also Paoli, 35 F.3d at 746 ("The judge should not exclude evidence simply because he or she thinks that there is a flaw in the expert's investigative process which renders the expert's conclusion incorrect. The judge should only exclude the evidence if the flaw is large enough that the expert lacks `good grounds' for his or her conclusion."). Here, the Defendants have highlighted weaknesses to be considered by the trier of fact in deciding how much credence to give Harmor's testimony, not "disabling problems" that warrant exclusion.
Harmor also opines that although the PSA Card test yielded a "weak positive" result, his conclusion that P30 testing in 1995 would have detected the presence of semen is scientifically sound because DNA degrades over time and thus Zilinger's underwear would have contained more protein (and thus more DNA) in 1995 than it did when SERI tested it in 2011. (Id. 51.) Specifically, Harmor testified that it is "[c]ommonly accepted wisdom in the field" of forensic serology that DNA, like P30, degrades over time. (Id. 53-55.) Harmor also stated that based on his experience, the ability to detect the P30 protein "starts to drop off" after about 10 years. (Id. 49.) In this case, Harmor measured the sample Dr. Wraxall and Meininger tested for P30 and found that it contained a total of 0.19 nanograms of male DNA. (Id.)
Using the 0.19 nanogram figure as a mathematical starting point, Harmor attempted to measure DNA's rate of degradation to determine how much DNA would have been available in the same sample in 1995. (Id. 56.) In order to calculate the degradation rate, Harmor analyzed blood samples that were "about the same age as the semen in the underwear." (Id. 56-57.) The specific samples used in Harmor's experiment were extracted in 1994 from a former SERI employee. (Id. 57.) Harmor
Harmor's testimony regarding the degradation of DNA is based on his experience as a serologist, which includes work with post-conviction "cold cases" that call for DNA testing on pieces of evidence that are several years old. (Id. 47-49.) Specifically, Harmor stated that he "work[s] on old cases fairly routinely" and has observed what is called a "slope of degradation" of DNA that renders it difficult and sometimes impossible to detect DNA on old evidence. (Id. 55-56.) Harmor also states in his rebuttal report that "[i]t is well-accepted within the forensic biology field that DNA degrades over time. In my 20 years as a DNA practitioner, I have consistently observed evidence of DNA degradation." (Harmor Rebuttal Report, Dkt. 184, Ex. G, ¶ 18.) Based on his experience and training, Harmor is qualified to opine generally that DNA degrades over time and that the ability to detect the P30 protein declines when a sample is over ten years old. However despite these qualifications, Harmor's specific conclusions regarding the estimated degradation rate and amount of DNA that would have been present on Section 25a in 1995 must be excluded. Cage has not shown by a preponderance of the evidence that these conclusions are the product of an acceptable methodology or that the methodology used by Harmor was applied reliably to the facts of this case.
Rule 702 "imposes a special obligation upon a trial judge to `ensure that any and all scientific testimony ... is not only relevant, but reliable.'" Kumho Tire, 526 U.S. at 147, 119 S.Ct. 1167 (citing
For several reasons, Harmor's private experiment falls short of the standards as set forth in Daubert. First, Harmor performed his degradation experiment on blood cells, not spermatozoa. (Tr. 2/13/13, p. 114.) Harmor's testimony at the Daubert hearing made clear that this distinction is not insignificant. After explaining his process and conclusion, Harmor was asked whether it mattered that he derived a degradation rate using a blood sample but applied it to estimate the amount of DNA in a semen sample. (Id. 62.) On direct examination, Harmor's response was both vague and unhelpful:
(Id. 62-63.) When cross-examined on this point, Harmor initially resisted the Defendants' suggestion that a degradation rate derived through tests of blood samples could not be applied to semen. (Id. 110.) Harmor insisted that although blood cells and sperm cells are different in many respects, both contain human DNA and thus may appropriately be compared in determining the rate at which DNA would degrade at ambient temperatures over a given period of time. (Id.) However, Harmor eventually conceded that sperm cells have a tougher cell membrane than blood cells and admitted he is unsure whether the difference in relative strength of cell membranes affects the degradation rate of
In light of this testimony, the Court has serious doubts about whether Harmor's experiment can be used to reliably estimate the rate of degradation in seminal material. Despite his insistence that "DNA is DNA," Cage has failed to "bridge[] the analytical gap" between the results of Harmor's test on DNA in blood cells and the application of those results to DNA in sperm cells. See Fuesting, 421 F.3d at 536 ("Another indicator of unreliability is the unjustifiable extrapolation from an accepted premise to an unfounded conclusion.") (citing Fed.R.Evid. 702 advisory committee's note (2000 amends.)). In other words, Cage has not shown that Harmor's opinion flows reliably from the data on which he relies. See United States v. Mamah, 332 F.3d 475, 478 (7th Cir.2003) ("It is critical under Rule 702 that there be a link between the facts or data the expert has worked with and the conclusion the expert's testimony is intended to support"); Heller v. Shaw Indus., Inc., 167 F.3d 146, 159 (3d Cir.1999) (upholding district court's exclusion of expert's conclusion because it did not "fit" or reliably flow from the expert's data or methodology).
Second, the underwear sample to which the results of the analysis were applied, unlike the clean white cloth used in Harmor's experiment, was "dirty," "had biological material [other than sperm] all over it," and possibly even contained detergent or fabric softener. (Tr. 2/13/13, pp. 101, 109.) Harmor admitted that he did not perform the analysis on an unclean sample or a sample containing mixed fluids or detergent. (Id. 102-103.) Thus, Harmor's experiment fails to take into account whether other particles (such as dirt), chemicals (such as those contained in detergent and fabric softener), and biological material (such as vaginal DNA), had any effect on the rate of degradation. Although the Court recognizes that a perfectly comparable experiment would be difficult to duplicate — it would have required Harmor to preserve a soiled pair of underwear containing DNA for seventeen years — Harmor's failure to take into account the possibility that other variables may have affected the results of his one-time experiment leave the Court unable to conclude that he "employ[ed] the same `intellectual rigor'" in reaching his conclusion as would be employed by an expert in his field. See Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997) (Daubert "requires the district judge to satisfy himself that the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting."); Claar v. Burlington Northern R. Co., 29 F.3d 499, 502 (9th Cir.1994) (failure to adequately take into account alternative explanations fatal to the admissibility of expert testimony under Daubert).
Other considerations also weigh against admitting Harmor's estimate of the amount of DNA that would have been on the sample in 1995. First, there is no indication in the record that Harmor's technique and theory has ever been tested, much less that it "enjoys general acceptance within [the] scientific community." Kumho Tire, 526 U.S. at 149, 119 S.Ct. 1167. Harmor maintains that the 75 percent figure derived from his experiment is consistent with a recent clinical analysis attempting to determine the half-life of DNA at ambient storage temperatures in the San Francisco Bay area. (Id. 66.) That analysis suggested DNA stored at ambient temperature in the Bay Area would lose half of its activity every 8 years.
Additionally, Harmor's experiment has never been peer reviewed, published, or relied upon by another expert in his field. (Tr. 2/13/13, pp. 107, 150.) Indeed Harmor agreed that his experiment, as conducted, "wouldn't even come close to meeting [the] standards" necessary to withstand peer review or the publication process. (Id. 107-108.) Harmor further testified that the test was performed once, and that it would be "bad science" to take the result of a one-time test on a single sample and, in the context of peer review and journal submissions, extrapolate that result to mean the same result would obtain in the majority of cases. (Id. 108, 152.) Lastly, Cage has not presented any evidence regarding the potential rate of error in Harmor's experiment. Id. Under these circumstances, the Court cannot conclude that Harmor's experiment was reliably applied to determine — or estimate for that matter — the rate at which DNA contained in the sperm cells in Zilinger's underwear would have degraded over a 17-year period. While Cage insists that the issues described above reflect mere "weaknesses" that can be addressed through effective cross-examination, such fundamental flaws in methodology and application are precisely the type of "disabling problems" that require the Court to exercise its gate-keeping responsibility. Accordingly, Harmor's estimate of the degradation rate of DNA in sperm cells over the relevant time period and his opinion regarding the amount of DNA that would have been present on the underwear sample in 1995 is barred.
Harmor opines that if the CPD Crime Lab were to have performed P30 testing and detected the presence of semen, DQ Alpha DNA testing, which was available in 1995, would have generated a DNA profile that would have excluded Cage as the attacker. (Tr. 2/13/13, pp. 51-52; Harmor Report, ¶¶ 24-25.) Defendants argue this opinion should be excluded because it is clear that neither 0.57 nanograms nor 0.19 nanograms were sufficient to return a valid result using DQ Alpha testing in 1995.
Like many of the attacks Defendants level against Harmor's opinions, Defendants' objection here does implicate Daubert. Both sides offer evidence supporting their positions regarding the capabilities and limitations of DQ Alpha testing in 1995. Defendants point to the fact that
It is clear from this testimony that the Defendants' objection boils down to a dispute over the accuracy of Harmor's conclusion, not his methodology. The Court reiterates that such challenges must be addressed through cross-examination and the presentation of contrary evidence. See Daubert, 509 U.S. at 596, 113 S.Ct. 2786; Winters, 498 F.3d at 742. Defendants' motion to bar Harmor's opinion that DQ Alpha testing in 1995 would have generated a DNA profile and eliminated Cage as a suspect is therefore denied.
However, this denial is subject to limitations. Harmor may testify that given the 0.19 nanograms of DNA present on the undergarment sample in 2011, DQ Alpha testing would have yielded a positive result because (1) DNA degrades over time and thus there would have been more than 0.19 nanograms of DNA present in 1995 on the same sample; (2) the portions of the the underwear available to the CPD Crime Lab had more than 0.19 nanograms of DNA in 1995 based on both the periphery theory and the lack of degradation at that time; and (3) despite the manufacturer's statement that the DQ Alpha test requires two nanograms for a guaranteed result, experience teaches that a result may be obtained with as little as 0.25 nanograms. However, consistent with the Court's holding in Section I.B, Harmor may not testify that the DNA would have degraded by 75 percent or offer an opinion regarding the specific amount of DNA that would have been in the sample in 1995 when Doyle conducted her tests.
Fish was Doyle's supervisor at the CPD Crime Lab. The Defendants do not dispute
Keel testified that Fish's role as supervisor at the CPD crime lab was to technically review the Zilinger Report to make sure the findings and conclusions expressed therein were adequately documented in the case file and that the case file supported the report. (Id. at 42.) According to Keel, it was the nationally-established practice of serology labs to have supervisory personnel conduct rigorous administrative and technical review upon completion of lab work and prior to formal publication of a report describing the work. (See Keel Report, ¶ 5, Dkt. 169, Ex. 1.) Keel concludes that despite the accepted practices, Fish simply performed a "bare bones administrative review" that involved nothing more than proofreading the report. (Id.) This, according to Keel, does not comport with the norms and standards in the profession because standards require that a peer conduct a "comprehensive technical review." (Tr. 2/11/13, p. 42.) Specifically, Keel testified that "[p]eer review is required in every DNA case, just like it should be in every conventional serology case." (Id. 57.) It is Keel's opinion that this form of review is "essential" and has been the nationally accepted standard for as long as he has been in the profession, including the year 1995. (Id. 38, 44.)
In addition, Keel performed his own technical review of the Zilinger Report by comparing the report to Doyle's bench notes. Based on his review, Keel determined that the Zilinger Report misled its readers about the type of testing Doyle performed on the physical evidence in Cage's criminal case. (Tr. 2/11/13, pp. 45-46.) Specifically, Keel opines that the statement "Chemical tests for the presence of semen conducted on extracts of Exhibits K7, 8, 9, 10, 11, and 12 yielded negative results"
Keel opines that Fish's decision to conduct an administrative review instead of a technical review of the Zilinger Report was significant because a technical review would have uncovered the fact that the report was misleading. (Id. 53-54.) Specifically, Keel concludes that by performing a technical review, Fish would have: (1) identified Doyle's use of the term "extract," (2) recognized that the term implies the use of P30 testing; (3) reviewed Doyle's bench notes; and (4) observed from the notes that P30 testing was in fact not performed; and (5) concluded that the Zilinger Report did not accurately describe Doyle's work. (Tr. 2/12/13, p. 79.)
While no government body mandated technical peer review of all serology reports in 1995, Keel opines that such review was expected based on the guidelines in existence at the time as well as "the general precepts of the scientific method." (Tr. 2/11/13, pp. 61, 117-118.) To support this opinion Keel cites his own experience in the field and the standards promulgated in 1987 by American Society of Crime Lab Directors ("ASCLD"), a body of scientists who direct and administer various crime labs across the United States. (Id. 57, 146.) Keel testified that technical review has been performed in every serology case he has ever worked on in the six laboratories he has worked for. (Tr. 2/12/13, p. 146.) This practice is consistent with Keel's experience reviewing hundreds of cases from across the country, including over 100 post-conviction investigations. (Id.) Keel acknowledged that certain laboratories engage in "spot reviewing," a review process in which only a pre-determined percentage of cases are selected for full technical review. (Id. 62.) In Keel's opinion, however, spot review is appropriate only in "high volume" cases, such as those involving drugs, stolen vehicles, and residential burglaries. (Tr. 2/11/13, pp. 62-63.). Keel testified that serology work does not qualify as "high volume" and thus spot-reviewing should never be applied in a rape or homicide case involving biological material. (Id. 62-64, 147.) Thus, it is Keel's view that any crime laboratory not engaging in technical review of every non-high volume report before issuance is violating
The parties also dispute whether nationally accepted practices in the field of serology require that technical review be performed by someone other than the analyst who conducted the original testing. Keel states that the notion that Doyle could have performed a technical review of her own work "makes no sense" from a scientific perspective and "flies in the face of what peer review," by definition, is supposed to involve. (Id. 44.) Keel also testified that in his 30 years of experience he has never heard of the concept of "self-technical review." Keel further stated that even if certain guidelines were to advise that an analyst perform a technical review of their own work, that guideline in no way discharges the obligation to have a supervisor sign off on the report after reviewing the supporting documentation. (Tr. 2/12/13, p. 153.)
At trial, Cage will ask the jury to find Fish liable for the misrepresentation in Doyle's report, either because (a) assuming she technically reviewed the report, Fish had actual knowledge of the misrepresentation and failed to correct it, or (b) Fish acted with deliberate indifference by failing to conduct a proper review in accordance with nationally-accepted standards. See Lanigan v. Village of E. Hazel Crest, 110 F.3d 467, 477 (7th Cir.1997) (to be held liable under Section 1983, "supervisors must know about [their subordinate's] conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see."). The Defendants seek to bar Keel's opinions regarding Fish's review of Doyle's report and nationally accepted report reviewing practices. First, Defendants argue that Keel lacks the qualifications to render such an opinion. Second, Defendants assert that Keel's methodology in arriving at his opinion is flawed because it is based on a selective reading of Fish's deposition and on the local practices of two forensic crime laboratories. The Defendants assert that a review of Fish's entire deposition would have revealed to Keel that the CPD Crime Lab did in fact conduct technical reviews in certain cases. Third, Defendants argue that Keel's opinion should be barred because he harbors a longstanding bias against Fish. Lastly, Defendants argue that Keel's conclusions are mere "common sense" and therefore expert testimony will not assist the trier of fact.
Keel's experience as a criminalist provides a basis of specialized knowledge as contemplated under Federal Rule of Evidence 702 and qualifies him to opine on the nationally accepted practices of forensic crime labs 1995 and today. Keel began his career as a serologist in 1982 at the North Louisiana Crime Laboratory in Shreveport, Louisiana. (Tr. 2/11/13, at 28.) After one year of training and one year of independent case work in Shreveport, Keel took a position at the Oakland, California Police Department Crime Laboratory, where he worked for nine-and-a-half years. (Id. at 31.) Between 1993 and 1996, Keel worked as a death investigator for the Caddo Parrish Coroner and Medical Examiner's Office in Shreveport. (Id. at 31-32.) He also worked briefly at the Tulsa, Oklahoma Crime Laboratory. (Id.) In 1996, Keel was hired by the San Francisco Police Department Crime Laboratory to supervise the lab's forensic biology unit and to install forensic DNA analysis capabilities. (Id. at 32.) Keel left the San Francisco Police Department Crime Laboratory three years later to take a position at Forensic Science Associates, which merged with his current employer, Forensic Analytical Sciences ("FAS"), in 2011. (Id.)
Keel testified that he has become familiar with national standards in his field through (1) working in various law enforcement agencies and private laboratories throughout the country; (2) his attendance at symposiums across the nation; and (3) his experience testifying in both state and federal proceedings on over 70 occasions and in the following states: California, Washington, Arizona, Texas, Oklahoma, Louisiana, Florida, Tennessee, Illinois, Ohio, Pennsylvania, New York, and Montana. (Id. 34-35.) Although Keel has never been asked to conduct an audit or peer-review of another lab's practices, he has performed numerous peer reviews of work product generated by other laboratories. (Tr. 2/12/13, p. 84.). Keel is also familiar with the American Society of Crime Laboratory Directors (ASCLD) laboratory accreditation board standards (though he is not a member of ASCLD), the FBI's quality assurance standards, and the technical working group on DNA analysis method standards. (Id. at 36; Tr. 2/12/13, p. 84.)
Given his 29 years of experience working in multiple crime laboratories and particularly his experience in reviewing work generated by other labs,
Defendants cite, without analysis, three district court decisions in support of their position that Keel is unqualified to offer the above opinions: Moore v. P & G-Clairol, Inc., 781 F.Supp.2d 694 (N.D.Ill. 2011), Driver v. AppleIllinois, LLC., No. 06 C 6149, 2011 WL 4007337 (N.D.Ill. Sept. 9, 2011), and SEC v. Lipson, 46 F.Supp.2d 758 (N.D.Ill.1998). These cases do not support the Defendants' position. In Moore, for example, the plaintiff sought to call an organic chemist with extensive education and experience in the area of chemical safety issues to testify in a product liability case in which the plaintiff alleged that she had a severe allergic reaction to the defendant's product. 781 F.Supp.2d at 696. The chemist sought to opine not only that the product was dangerous and the cause of the plaintiff's injuries,
In Lipson, the Securities and Exchange Commission alleged that the Defendant, the Chief Executive Officer of Supercuts, Inc., traded shares of Supercuts stock based non-publicly available company reports revealing poor sales performance. 46 F.Supp.2d at 760. The Defendant sought to admit the opinion of a certified public accountant who concluded that (1) the Defendant and others at Supercuts did not believe the internal financial reports were reliable; and (2) the reports were in fact not reliable. Id. at 763. The court barred both opinions. With respect to the first opinion, the court found that the expert's years of training and experience as an accountant did not "specially equip him to divine what the Defendant truly believed about the reliability of the reports" and that any opinions offered in that regard were, "at worst, rank speculation; at best, they are credibility choices that are within the province of the jury, not [the expert], to make." Id. The court also excluded the expert's opinion regarding the actual reliability of the reports on the basis that the opinion was "not sufficiently rooted in the principles and methodology in accountancy." Id. at 764. The court did not cite the expert's qualifications as a basis for excluding the second opinion.
Moore and Lipson support the general proposition that even a qualified individual may be barred under Rule 702 where the opinion proffered calls for speculation or expertise in a field outside of the expert's purview. However the Court fails to see — and the Defendants make literally no attempt to explain — how the circumstances in Moore and Lipson are analogous to those presented here. Cage offers Keel to opine on whether Fish's approach to peer review is consistent or at odds with nationally accepted practices as he understands them based on his three decades of experience in multiple crime laboratories, his peer-review of the work product of other laboratories, and his technical review of reports as a supervisor at FAS. Unlike the chemist in Moore and the accountant in Lipson, Keel's opinions do not implicate subject matter outside of his realm of expertise or call upon him to speculate how a lay audience would interpret a particular piece of information. Moore and Lipson are therefore inapposite.
Driver involved class action claims alleging that the plaintiffs, former servers and bartenders at an Applebee's restaurant in Illinois, did not receive statutorily required minimum wages due to certain practices by the defendants. 2011 WL 4007337, at *1. The defendant's expert witness opined that Applebee's' practice of requiring servers to contribute 2.5% of gross sales each day to a "tip pool," from which funds are distributed to other workers, was "customary and reasonable within the casual dining segment of the restaurant industry." Id. This opinion was based on the expert's 35 years of experience in the restaurant industry, most of which was spent in management positions in casual dining chains considered to be more "upscale" than Applebee's.
Driver highlights the infirmities in the Defendants' argument regarding Keel's qualifications. Unlike the casual dining restaurant industry at issue in Driver, there is no indication that forensic crime laboratories in the United States are segmented in a manner that allows for different standards of peer review. While the Defendants repeatedly refer to Keel's experience as being confined to "local practices" of "local crime laboratories," they have failed to articulate a basis for this designation. Despite their repeated use of the term "local," Defendants have presented no evidence that the practices of forensic crime laboratories are in fact "localized." If by using the term "local" the Defendants are referring to crime labs that serve law enforcement agencies in their geographic vicinity, the same designation would have applied to the CPD Crime Lab. To the extent the Defendants use the term to suggest that the labs Keel has worked in did not handle the same amount of work as the CPD Crime Lab, they a have failed to establish — or even argue for that matter — that the standard for acceptable peer review is affected by the volume of cases a laboratory processes. As this Court has previously held, the mere fact that an expert draws on experience from a different jurisdiction and geographic part of the country is not a proper basis for exclusion under Daubert. See Cooper v. City of Chicago Heights, No. 09 C 3452, 2011 WL 2116394 (N.D.Ill. May 27, 2011). In Cooper, the Court rejected the argument that a veteran member of the NYPD was not qualified to opine on whether the Chicago Heights Police Department's practices comported with standard police practices because he lacked Illinois experience. Id. at *6. The defendants in that case, like the Defendants here, made no showing that "practices in Illinois are different from the police practices in New York City so as to make [the expert's] opinion unreliable or irrelevant under Daubert." Id. Accordingly, the Court held that the expert's "purported unfamiliarity with Illinois police practice, the division of labor ... within the CHPD, and the relationship between the CHPD and the prosecutor's office" were proper subjects for cross-examination, not bases for exclusion. Id. (citing Deputy v. Lehman Brothers, Inc., 345 F.3d 494, 506 (7th Cir.2003)); see also Lorillard Tobacco Co. v. Elston Self Service Wholesale Groceries, Inc., No. 03 C 4753, 2008 WL 4681917, at *3 (N.D.Ill. May 13, 2008) (expert with six years of employment in cigarette wholesaling qualified to testify regarding customs and practices in cigarette marketing industry despite his lack of experience in the geographic area at issue).
Similarly in this case, Defendants will be free to explore on cross-examination Keel's lack of experience outside of San Francisco, Tulsa, Oakland, and Shreveport. They
Like Harmor, Keel's conclusions in this case are based primarily on his experience in the field. Specifically, Keel relies on his firsthand knowledge of the practices at six different laboratories, his experience reviewing work previously conducted by other laboratories, and his involvement in over 100 post-conviction investigations. Keel also relies on the 1987 ASCLD guidelines which, like the 1994 guidelines Harmor relied upon, set forth criteria for administrative and conclusion review. Keel's conclusions are not derived from any formula, test, survey, statistical analysis, or technical evaluation. Once again, however, the fact that an expert's conclusions are based only on his observations and extensive specialized experience does not render them inadmissible. See supra at Section I.A.2. This includes opinions regarding generally accepted standards in an industry within the expert's purview. See id.
The Defendants next argue that Keel's methodology is flawed because it is based on a selective reading of Fish's deposition and ignores other testimony that would have revealed to Keel that the CPD Crime Lab did in fact conduct technical reviews in cases involving DNA findings. However, the fact that Keel reviewed some parts of Fish's deposition and not others does not preclude his testimony at trial. See Walker, 208 F.3d at 586-87 (plaintiff's expert should not have been barred for relying on plaintiff's self-reported history that was arguably false because defendant could have "presented evidence that [the expert] had relied upon an inaccurate history and thereby called his conclusions into question"); see, e.g., Collier v. Bradley University, 113 F.Supp.2d 1235, 1244 (C.D.Ill.2000) ("The Court is not overly concerned with Dr. Wilson having disregarded portions of witnesses' testimony in reaching her conclusions.").
As with Harmor, the Defendants displayed no hesitation in providing the Court an unsolicited preview of their summary judgment arguments during Keel's cross-examination. Specifically, the Defendants elicited testimony that: (1) no government body or agency "required" that crime labs perform technical peer-review in every case,
Keel rebuts some (though not all) of these contentions. However, because the "[t]he soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis" are not at issue at this stage of the proceeding, Smith, 215 F.3d at 718, the Court declines at this time to resolve the parties' debate over the extent to which various promulgated guidance supports or undermines Keel's conclusions. Taken together, these issues raise doubt about whether it was in fact the nationally-established practice of crime labs to conduct peer technical review of all serology reports prior to publication. At a minimum, they show that Keel's assertion
The Defendants also argue in their written briefs that Keel's testimony should be barred because his conclusions run contrary to the consensus in the scientific community. In support of this position, the Defendants cite the testimonies of their own expert witnesses, Lucy Davis and Dan Bergman, and Cage's expert, Gary Harmor. Defendants argue that in light of the opinions contradicting Keel's, "[c]learly, Keel's opinions are not generally accepted within the forensic scientific community." (Def. Mot. No. 1, Dkt. 169, p. 17.) This argument misstates the Daubert inquiry. It is not the opinion that must be generally accepted but rather the methodology employed by the expert in reaching that opinion. See Winters, 498 F.3d at 742. Defendants' attempt to recharacterize their attack on Keel's substantive conclusions as a debate over methodology is not persuasive. Whether the Defendants seek to bar Keel's opinions because — as Cage puts it — the Defendants' own experts disagree with him, or because — as the Defendants put it — his opinions are "directly contrary to consensus in the scientific community," it remains the case that the challenges Defendants raise call into question the correctness of Keel's conclusions, not the appropriateness of his method. The Court declines Defendants' invitation to decide which expert is correct on the merits. See Morisch v. United States, 653 F.3d 522, 529 (7th Cir.2011) ("In a case of dueling experts, such as this one, `it is left to the trier of fact, not the reviewing court, to decide how to weigh the competing expert testimony.'") (quoting Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir.2008)).
Third, Defendants submit that Keel's conclusions are not relevant — in other words, unhelpful to the trier of fact — because they are by Keel's own admission nothing more than "common sense." The Court agrees with Cage that this is an issue of semantics. The fact that Keel uttered the phrase "common sense" during his deposition does not take his opinions outside the purview of expert testimony. Aside from attempting to seize upon what they apparently perceive to be a "gotcha" moment, the Defendants have presented no evidence suggesting that the nationally-established practices of crime laboratories in 1995 pertaining to supervisory review of serology reports is "simplistic," "not beyond the ken of an average person," or "well within human experience." See Roback v. V.I.P. Transport,
Lastly, Defendants argue that Keel's opinion should be barred because he harbors a longstanding bias against Fish that "seriously colors his ability to render reliable opinions about her work or that of the CPD Crime Lab in which she worked." (Pl. Mot. No. 1, p. 21.) Defendants point to Keel's deposition testimony in which he admitted that his laboratory keeps a binder characterizing opposing experts in his field as "whores" and that his colleague, Dr. Blake, asked him to tone down the language in the report he co-authored about Fish's conduct in prior criminal cases. (See Keel Dep., pp. 257-59, 263.) Cage agrees that Keel has, over the course of his career, developed a bias against Fish based on his belief that she has "disgraced her profession .... through her repeated and consistent willingness to be complicit in lab reports that misrepresent scientific findings in favor of securing criminal convictions, regardless of the truth." (Pl. Resp., Dkt. 187, p. 16.)
However it is well-established that an expert's bias is not a proper basis to bar testimony under Daubert. See DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 468 (8th Cir.2000) ("Determining the credibility of a witness is the jury's province, whether the witness is lay or expert, and an expert witness's bias goes to the weight, not the admissibility of the testimony, and should be brought out on cross-examination.") (citations omitted); In re Unisys Savings Plan Litigation, 173 F.3d 145, 166, n. 11 (3d Cir.1999) ("Courts have held in numerous other cases that credibility is irrelevant to determining whether a proposed expert witness's testimony is admissible under Rule 702, and particularly whether it is based on reliable methodology.... For example, expert witnesses cannot be excluded on the basis of bias."); In re Paoli, 35 F.3d at 749 ("[E]valuating the reliability of scientific methodologies and data does not generally involve assessing the truthfulness of the expert witnesses...."); see also Baldwin Graphic Systems, Inc. v. Siebert, Inc., No. 03 C 7713, 2005 WL 4034698, *3 n. 3 (N.D.Ill. Dec. 21, 2005) ("[A]lleged bias is fodder for cross-examination and impeachment, not a ground for exclusion."); Charles A. Wright & Victor J. Gold, 29 Fed. Prac. & Proc. Evid. § 6265 ("[T]he courts may not consider credibility questions such as bias when exercising their discretion as to whether a witness qualifies as an expert."). Accordingly, Keel's testimony will not be barred based on his partiality against Fish.
As noted above, Cage proceeds against Fish under two separate theories of liability. In the first instance, Cage seeks to establish that Fish's version of events — that no supervisor performed a technical review of the Zilinger Report before it was produced to the criminal justice system — is so preposterous and inconsistent with basic and universal principles for how science laboratories operate that it simply cannot be true. In other words, Cage will submit to the jury that Fish did conduct a technical review of the Zilinger Report, recognized Doyle's misreporting, signed off on the report anyway, and lied when she testified that her review was merely administrative. In the alternative, Cage
If the jury accepts Cage's first argument (i.e., believes that Fish was an active participant in the process that created the misleading report), Cage seeks to offer Keel's opinion that Fish's misrepresentation in the Zilinger Report was not an isolated incident but rather exemplary of a recurring pattern and practice at the CPD Crime Lab of distorting test results and misrepresenting lab reports. Specifically, if allowed to testify in this regard, Keel will state that he and a colleague, Dr. Edward Blake, analyzed testimony and reports Fish provided in previous criminal cases and concluded that Fish's submissions to the criminal justice system in those cases reflect a pattern of the type of misrepresentations, false reporting, and distortions that occurred in Cage's case. (Tr. 2/12/13, pp. 81-83.) According to Keel, these misrepresentations are always to the detriment of the criminal defendant. (Id. 82, 105, 165.) Cage seeks to offer Keel's opinion regarding Fish's previous work to support his Monell claims against the City of Chicago and to show that Fish's lab reports were consistently scientifically unsupportable and biased in favor of the prosecution.
Keel and Blake performed their analysis by comparing Fish's laboratory reports and any supporting documentation with her in-court testimony corresponding to that case. (Id. 82.) Asked whether he was familiar with this methodology, Keel responded "Of course. I mean, that's the only way to, after the fact, go back and assess somebody's testimony as to how truthful they were being." (Id. 82-83.) According to Keel, this method of review is "absolutely the same" as the method he has used to conduct technical reviews throughout his career. (Id. 83.) Blake and Keel's conclusions are set forth in a report that was provided to attorney Kathleen Zellner in January 2001 (the "Blake/ Keel Report"). (Pl. Mot. No. 2, Dkt. 171, Ex. 1.) The Blake/Keel Report states that in many of the cases listed therein, Fish "misrepresents the scientific significance of her findings either directly or by omission. The nature of these errors are such that a reasonable investigator, attorney, or fact finder would be misled concerning the ability of her work to either include or exclude relevant individuals as potential sources of biological evidence." (Id. at 1.) The remainder of the Report comprises of synopses of eight of Fish's prior cases. (Id. at 2-11.)
Many of Defendants' objections to the Keel's conclusions are either without merit or do not implicate Daubert. For example, the fact that Keel reviewed some portions of Fish's trial testimony and ignored others that arguably belie his conclusions is not a basis for exclusion. See Walker, 208 F.3d at 586-87; see also Collier, 113 F.Supp.2d at 1244. In addition, the Defendants' concern that Cage's presentation of Monell evidence will result in a series of minitrials over Fish's previous work does not warrant exclusion at this
Keel's qualifications and methodology in creating the Blake/Keel Report are more problematic. Cage maintains that Keel's methodology in this case — reviewing test results and forming conclusions about how to report those tests in a way that is scientifically accurate — is "indistinguishable from what he does anytime he reviews another analyst's work...." (Pl. Resp., Dkt. 187, p. 18.) In other words, according to Cage, what Keel did to prepare the Blake/Keel Report was no different from any other peer technical review he has performed. This is incorrect. Keel's own definition of technical review is instructive on this point:
(Tr. 2/11/13, pp. 37, 40.) The Court has no doubt that Keel is equipped with the experience and training to conduct a technical review in the manner described above. However, Keel's endeavor in the cases outlined in the Blake/Keel Report was different. Keel and Blake did not simply conduct a peer-technical review of Fish's work to determine the accuracy of her lab reports. Rather, they reviewed Fish's reports and the notes supporting the conclusions set forth therein, and compared them to Fish's testimony at trial to determine
Cage understates the significance of this distinction. In order to reliably conclude that Fish's testimony at trial that was false, misleading, or erroneous when viewed in comparison to her lab documents, Keel must understand not only the scientific bases for Fish's conclusions but also the procedural and evidentiary constraints imposed by the legal system. First, Keel would need to understand and appreciate the impact of the governing rules of evidence in order to account for possibility that certain testimony was kept from the trier of fact because it was deemed legally inadmissible. Relatedly, Keel would need to be aware of any previous court rulings, orders, or admonitions restricting Fish's testimony and have knowledge of their effect in order to properly determine whether Fish had a legitimate reason for not providing certain testimony. For example, in Illinois v. Wright, Fish was asked on direct examination whether the results of her tests of enzymes were consistent with her previous findings concerning the suspect and victim's blood type. (Def. Mot. No. 2, Dkt. 171, Ex. 5, p. 4.) Before she could respond, the defense attorney objected on the basis of lack of foundation. (Id.) Pursuant to a discussion that took place outside of the jury's presence,
Second, in order to form a reliable conclusion about Fish's testimony, Keel must take into account that certain evidence may not have been presented through Fish to the trier of fact because Fish was called for a more limited purpose. Keel's conclusions regarding Fish's testimony in Illinois v. McKinley illustrate this point. According to the Blake/Keel Report, "Fish declined to conduct conventional serology testing of rape evidence" in the McKinley case (Blake/Keel Report, at 17.) The language from the report clearly implies that such testing was specifically requested (or at a minimum, proposed) and that Fish refused to perform it. However, on cross-examination during the Daubert proceedings, Keel admitted that he was well aware at the time he wrote his report that neither the State nor the defense had asked Fish to perform such testing in the McKinley case and that Fish's sole purpose in testifying was to verify the presence of sperm. (Tr. 2/12/13, pp. 135-136.)
Third, a forensic scientist providing testimony at trial can only answer the questions they are being asked. For example, in the Illinois v. Wardell/Reynolds case, the Court conveyed to Fish the following instruction before taking the stand: "Ma'am, before you begin testifying I ask that you do not volunteer any information, only answer the questions that were asked of you...." (Def. Mot. No. 2, Dkt. 171, Ex.
Lastly, any suggestion that (1) Fish acted with intent to deceive defense attorneys and the trier of fact or (2) that the fact-finders and defense attorneys were in fact mislead are not admissible. The former constitutes rank speculation and is inadmissible under the Federal Rules of Evidence. See Fed.R.Evid. 602. With respect to the latter, Keel does not possess the qualifications to opine that Fish's testimony would have misled "a reasonable investigator, attorney, or fact finder." See, e.g., George v. Kraft Foods Global, Inc., 800 F.Supp.2d 928, 933 (N.D.Ill. 2011) (finding expert's report regarding defendant's state-of-mind in selecting and communicating funds in an employment benefit plan speculative and not relevant because the cause of action did not have a state of mind element); Moore, 781 F.Supp.2d at 696 (expert in chemistry precluded from opining that defendant's instructions were misleading due to his lack of expertise in "psychology" and "human factors").
Unlike the Defendants' contrary evidence about the accepted practices of forensic crime labs, the issues here raise serious concerns regarding Keel's methodology and ability to opine on whether another serologist's trial testimony was designed to mislead. Aside from his general familiarity with the trial process from having testified in other cases, Keel has had no exposure, much less formal training in the rules of evidence and criminal procedural that governed the cases discussed in the Blake/Keel Report. Nor is Keel sufficiently familiar with the trial process to take into account that Fish may not have provided certain details because the attorneys trying the case, for one of many possible reasons, did not elicit them. Indeed unlike Harmor, who is responsible for evaluating analyst testimony in his capacity as SERI's Chief Forensic Serologist, (See Harmor CV, Dkt. 184, Ex. A, p. 7), there is no indication in Keel's CV, report, or testimony that he is qualified to opine on the completeness of another analyst's in-court testimony or has ever done so in the past. To the contrary, the testimony revealed that this type of review is "familiar" to Keel not because he has performed it before but because he has assumed, incorrectly, that it is "absolutely the same thing" as conducting a technical review in a supervisory capacity. (Tr. 2/11/13, pp. 82-83.) Thus, due to the fact that Keel lacks the requisite knowledge, skill, experience, training, or education to consider the multitude of intervening factors that affect the substance and presentation of a witness's testimony at trial, Keel is not qualified under Rule 702 to reach the conclusion that Fish engaged in a pattern of providing false, misleading, or erroneous testimony in the cases identified in the Blake/Keel Report.
Furthermore, by not taking into account the constraints of the legal system and the impact those constraints may have had on Fish's testimony, the Court cannot conclude that Keel employed a reliable methodology in reaching is conclusion. See Paoli, 35 F.3d at 746 (judge should exclude evidence if flaws in the expert's investigative process are "large enough that the expert lacks `good grounds' for his or her conclusion"); Claar, 29 F.3d at 502 (failure to adequately take into account alternative explanations
Lucy Davis was retained by the Defendants to rebut Keel's conclusions. Davis opines that based on her review of Fish's files and testimony, Fish provided fair and accurate information in the cases in which she testified and that there is no pattern of false testimony. In his Daubert motions, Cage moved to exclude the following three opinions Defendants intend to elicit through Davis: (1) Fish's controls did not meet the CPD Crime Lab's "defined range" in the Illinois v. Willis case and thus it was proper for Fish to report the test as "inconclusive"; (2) Doyle did not misuse the term "extract" in the Zilinger Report; and (3) with the exception of DNA testing, forensic laboratories have the discretion to define the percentage of files that must be technically reviewed. Since filing his motion, Cage has conceded that Davis's opinion regarding nationally-acceptable lab practices and the use of the term "extract" are proper subjects for expert testimony. (See Pl. Reply, Dkt. 199, p. 14.) Thus only Davis's opinion regarding Fish's conduct in the Willis case is presently before the Court. Furthermore, Davis's qualifications are not at issue here. The Court heard testimony in this regard, (Tr. 2/12/13, pp. 199-207), and ruled orally that at the hearing that she is qualified to opine on the CPD Crime Lab's testing in the Willis case. (Tr. 2/12/13, p. 226.)
In Willis, Fish conducted an ABO typing analysis by performing an absorption inhibition test on a semen stain from a toilet paper wrapper.
(Tr. 2/12/13, p. 208.) Keel concludes that although Fish's absorption inhibition test found evidence that the semen source was likely an A secretor, she characterized the analysis of the semen evidence as "inconclusive" in her lab report and her trial testimony.
Davis explained that when conducting an absorption inhibition test, "a negative substrate control" is a control taken from "the item of evidence adjacent to where [the analyst] think[s] the biological fluid is...." (Id. 209.) The analyst then observes the control to determine whether it generates a reaction. (Id.) A reaction between the substrate control and the chemicals being used informs the analyst that there is some form of "inhibition" taking place. (Id. 209-10.) In such cases, the analyst cannot be "confiden[t] that the testing ... on the particular biological stain is not being affected by the substrate it is on rather than the biological fluid that's on it." (Id.) Davis stated that in the Willis case there was a partial reaction with the substrate control. (Id. 210.) Based on years of experience performing absorption inhibition and having demonstrating her proficiency through testing, Davis concluded that it was appropriate for Fish, based on the fact that there was a partial reaction to the substrate control, to deem the test "inconclusive." (Id.)
Davis also testified that in performing the absorption inhibition test, Fish used not only a negative substrate control but also a "negative control which was just a complete blank"; in other words "a sample that has nothing in it." (Id. 211.) This "negative blank" control provides the analyst with a "baseline for what nothing is." (Id.) According to Davis, when the substrate control does not meet the baseline, there is proof of inhibition with the substrate. (Id. 211-12.) Davis states that although she does not know the CPD Crime Lab's defined range, she is able to reliably conclude whether Fish's controls failed by looking at the negative blank. (Id. 252.) Davis explained that based on her experience and knowledge of the analytical procedure involved in Fish's testing and her experience performing it, she "know[s] what the expectation is of a negative blank and what the expectation is of a substrate control." (Id. 253.)
The Court finds the methodology Davis applied to determine whether Fish appropriately reported an inconclusive result in the Willis case sufficient to satisfy Daubert. Although Davis was unaware — and thus did not take into account — the CPD Crime Lab's defined range in reaching her conclusion, she has demonstrated that it is possible to make the determination without the range. It may be the case that Davis's appraisal Fish's reporting
Cage disclosed Jameson Kunz as an expert witness in the practices of criminal defense attorneys during the time period in which Cage was tried. Kunz opines that the prevailing practice of criminal defense attorneys would have been to rely on the representation in the Zilinger Report that the victim's underwear tested negative for semen without seeking independent testing. (Kunz Report, Dkt. 165, Ex. C.) In response to Kunz, Defendants disclosed their own expert, Barry Spector, who will opine on the same issue. According to Spector, a reasonably diligent attorney would have recognized an ambiguity in the Zilinger Report and taken steps to resolve the ambiguity by conducting a further investigation. (Spector Report, Dkt. 165, Ex. D.) While Cage disagrees with Spector's general conclusion, he does not dispute its admissibility under Daubert. Cage maintains, however, that certain aspects of Spector's report go beyond his expertise and must be barred. Specifically, Cage objects to Spector's conclusion that the record does not support Harmor's factual assumption that Zilinger wore her underwear after being sexually assaulted.
"The touchstone of admissibility under Rule 702 is helpfulness to the jury." United States v. Benson, 941 F.2d 598, 604 (7th Cir.1991), amended on unrelated grounds, 957 F.2d 301 (7th Cir.1992). On this issue, "[t]he crucial question is, `On this subject can a jury from this person receive appreciable help.'" Id. (quoting 3 Jack B. Weinsten & Margaret A. Berger, Weinstein's Evidence ¶ 702[1], at 702-7 to 702-8 (1990)) (emphasis in original). "An expert's opinion is helpful only to the extent the expert draws on some special skill, knowledge, or experience to formulate that opinion; the opinion must be an expert opinion (that is, an opinion informed by the witness' expertise) rather than simply an opinion broached by a purported expert." Id. (citing United States v. Lundy, 809 F.2d 392, 395-96 (7th Cir.1987)). Although an expert witness may provide opinions regarding factual issues, see Bielskis, 663 F.3d at 896, and rely on factual assumptions in forming those opinions, see Stollings, 725 F.3d at 768-69; see also LG Electronics U.S.A. v. Whirlpool Corp., No. 08 C 242, 2010 WL 3397358, at *15 (N.D.Ill. Aug. 24, 2010), the opinion must "add[] something" and not merely be a gratuitous interpretation the factual record. See United States v. Hall, 93 F.3d 1337, 1343 (7th Cir.1996) ("Unless the expertise adds something, the expert is at best offering a gratuitous opinions, and at worst is exerting undue influence on the jury that would be subject to control under Rule 403."); Davis v. Duran, 277 F.R.D. 362, 370 (N.D.Ill.2011) ("[E]xpert witnesses are not allowed to sort out possible
Spector's opinion is not proper expert testimony. In opining that Zilinger's deposition does not support that she put her underwear back on after the assault, Spector is effectively acting as an arbiter of facts. His opinion does not add anything that would be of help to the jury in resolving the factual dispute over whether Zilinger in fact wore her underwear after the assault. The jury will be able to hear fact testimony from both sides and reach its own determination on the issue. Spector's testimony that Defendants' interpretation of Zilinger's deposition is better than Cage's is neither necessary nor appropriate. Accordingly, the opinions set forth in paragraph 26 of Spector's report are barred.
Cage alleges that his due process rights were violated because the officers involved in the investigation of his criminal case employed unduly suggestive identification procedures that led to his wrongful conviction.
Defendants moves to exclude Dr. Cutler's opinion testimony pursuant to Federal Rules of Evidence 402, 403, and 702. The Defendants do not take issue with Dr. Cutler's qualifications, training, skills, or experience but instead argue that his opinions do not satisfy the Daubert standard because (1) eyewitness identification expert testimony is generally disfavored, and (2) Dr. Cutler's opinions are irrelevant and thus will not assist the trier of fact in understanding the evidence or determining a fact in issue. Specifically, the Defendants submit that the proffered opinions are irrelevant to Cage's Section 1983 claim because the accuracy of the victim's identification, which was heavily litigated and adjudicated at Cage's criminal trial, is not at issue in this case. The Defendants also argue that Dr. Cutler's opinions should be barred because (1) he has provided no opinion on whether the investigating officers' acts and omissions that actually caused Zilinger's identification to be faulty; (2) he further admitted during his deposition that he is aware of no facts suggesting that Detectives Jones or Ervin deliberately manipulated Zilinger so that she would falsely testify against Cage; (3) all of the information upon which Dr. Cutler's opinions are based was known to Cage's defense counsel at the time of his criminal trial and thus his testimony undercuts Cage's claim that the Defendants withheld exculpatory evidence; (4) many aspects of the identification criticized by Dr. Cutler did not and could not have affected Zilinger's identification of Cage; (5) Dr. Cutler's report partially attributes the faulty identification to the circumstances of the assault itself, which were not in the officers' control and are thus irrelevant to this case; and (6) even if Dr. Cutler's testimony were to clear the Daubert threshold, it should be excluded under Federal Rules of Evidence 402 and 403 because it seeks to hold Detective Jones's handling of the identification to standards that were not established until years after Cage's arrest and conviction.
Expert testimony regarding the potential pitfalls of eyewitness identification has traditionally, at least in the criminal context, been excluded from trials where the defendants sought to challenge the reliability of the eyewitness identifications supporting the charges against them. See United States v. Carter, 410 F.3d 942, 951
The presumption against admission of expert testimony on eyewitness identifications generally stems from "concerns about whether such expert testimony would actually assist the trier of fact, rather than about its reliability." Hall, 165 F.3d at 1101; see also Daniels, 64 F.3d at 315 ("Expert testimony regarding the potential hazards of eyewitness identifications will not aid the jury because it addresses an issue of which the jury is already aware, and it will not contribute to their understanding of the particular factual issue posed.") (quoting Larkin, 978 F.2d at 964); Hudson, 884 F.2d at 1024.
However in Hall, Judge Easterbrook, though joining the court's decision to affirm the exclusion of expert testimony on eyewitness identification, took issue with line of cases excluding such testimony solely on the basis that "it addresses an issue of which the jury already generally is aware" and thus "will not contribute to their understanding of the particular factual issues posed." 165 F.3d at 1118 (quoting United States v. Daniels, 64 F.3d 311 (7th Cir.1995)). Such reasoning, according to Judge Easterbrook, failed to take into account that:
Id. at 1118 (Easterbrook, J., concurring) (emphasis in original). This was not the first time the Seventh Circuit recognized the unique dangers of seemingly credible and sincere eyewitness testimony. See Krist v. Eli Lilly & Co., 897 F.2d 293, 296-97 (7th Cir.1990) ("An important body of psychological research undermines the lay intuition that confident memories of salient experiences ... are accurate and do not fade with time unless a person's memory has some pathological impairment.... The basic problem about testimony from memory is that most of our recollections are not verifiable. The only warrant for them is our certitude, and our certitude is not a reliable test of certainty.") (citations to scholarly literature omitted).
More recently, in United States v. Bartlett, 567 F.3d 901, 906 (7th Cir.2009), the Seventh Circuit called into question the previously-held notion that eyewitness identification testimony should be excluded simply because the court believes "jurors know from their daily lives that memory is fallible." 567 F.3d at 906. The court explained:
Id. The court added that "the problem with eyewitness testimony is that witnesses who think they are identifying the wrongdoer — who are credible because they believe every word they utter on the stand — may be mistaken." Id.
Nevertheless, the Bartlett court cautioned that "using expert testimony to explore this question may sidetrack a trial" and thus the "judge must balance the benefits of illuminating evidence against the costs of collateral inquiries." Id. Although the court found that the district court did not abuse its discretion in excluding the eyewitness identification testimony, it recognized, albeit implicitly, that such testimony may be of value where, as in Cage's case, a criminal conviction rests on the identification by a single eyewitness who is otherwise unfamiliar with the defendant. Id. at 907 (finding no abuse of discretion where eyewitness expert testimony was excluded in a criminal case where "[o]nly two of the people who identified [the defendant] were strangers to him" but "[t]he other four knew him well," noting that "the scholarly work concerns identification by single eyewitnesses, not the probability of error when multiple witnesses identify the same person") (emphasis in original). Indeed even in Carter and Hall, upon which the Defendants principally rely, the Seventh Circuit's holdings that eyewitness expert testimony would be unhelpful was based at least in part on the fact that other evidence corroborated the eyewitness identifications. See Carter, 410 F.3d at 950 (affirming district court judge's exercise of discretion where "government had significant additional evidence," including DNA, but crediting district court for "correctly realiz[ing] that
Regardless of where the law in this Circuit currently stands in the criminal context, the Seventh Circuit has been receptive to eyewitness identification expert testimony in the civil arena. In Newsome v. McCabe, 319 F.3d 301 (7th Cir.2003), the plaintiff, pardoned fifteen years after his conviction, filed suit under 42 U.S.C. § 1983, alleging police officers induced three witnesses to identify him as the killer. Id. at 302. On interlocutory appeal, the defendants challenged, among other things, the district court's decision to admit the testimony of an eyewitness expert who concluded that there was a strong likelihood that the police officers manipulated the witness's identifications. Id. at 306. The Newsome court began by describing the potential weaknesses of eyewitness identifications:
Id. at 305 (internal citations and quotation marks omitted).
The court then discussed jurors' tendency to overestimate the accuracy of eyewitness accounts:
Id.
With these notions in mind, the Newsome court found that the district did not abuse its discretion in allowing the plaintiff's eyewitness expert to testify, adding that it "would have acted precisely as did the district judge." Id. at 306. The court reasoned that "[b]ecause recollection is suggestible, it was important in this civil action to explore the question of whether the testimony of [the witnesses] identifying [the plaintiff] at the criminal trial was attributable to deliberate manipulation or instead to chance." Id. at 305.
The Newsome Court also suggested (though it did not hold) that previous decisions in criminal cases concerning the usefulness and admissibility of eyewitness expert testimony do not govern in civil cases:
Id. at 306.
More recently, the Seventh Circuit has suggested that where the challenged identification technique has not been forbidden by an authoritative judicial decision, eyewitness expert testimony is not only admissible, but may even be required in order to support a Section 1983 claim alleging unduly suggestive identification procedures. Phillips v. Allen, 668 F.3d 912 (7th Cir.2012). In Phillips, the Seventh Circuit addressed a plaintiff's contention that defendant police officers' use of a photo array to identify him was unduly suggestive because the officers mentioned in the victim's presence the plaintiff's name and that he was rumored to have been involved in various robberies in the neighborhood. Id. at 915-16. The plaintiff argued, without presenting expert testimony, that such identification tactics were "obvious[ly]" suggestive. Id. at 916. The Seventh Circuit disagreed, finding that "[n]either the Supreme Court nor this court has held that, as a matter of law, mentioning a suspect's name spoils an identification." Id. at 917. The court noted that expert testimony in "the social science of eyewitness identification" may have had a chance of convincing the court
Id. at 916-17 (emphasis added).
Several district courts — within the Northern District of Illinois and elsewhere — have subsequently rejected efforts by defendants to bar as unhelpful the testimony of eyewitness experts in civil cases involving allegations of suggestive identification techniques. See, e.g., Manning v. Buchan, 357 F.Supp.2d 1036, 1044-45 (N.D.Ill.2004) (Kennelly, J.) (rejecting defendants' request to bar testimony of eyewitness identifications expert who would testify that photographic arrays shown to eyewitness were highly suggestive); see also Atkins v. Riverside, No. 94 C 5307, 2007 WL 4696859, at *5-6 (C.D.Cal. Mar. 20, 2007) (denying motion to bar expert testimony on whether eyewitness identification procedures were inherently suggestive in a § 1983 wrongful conviction case); Bibbins v. Baton Rouge, 489 F.Supp.2d 562, 570 (M.D.La.2007) (following the Fifth Circuit's "modern conclusion that the admission of expert testimony regarding eyewitness identifications is proper" and finding admissible expert's eyewitness identification testimony that police show-up was impermissibly suggestive and lead to wrongful conviction in a § 1983 case) (quoting United States v. Moore, 786 F.2d 1308, 1312 (5th Cir.1986)); Perkins v. U.S. Airways, Inc., 8 F.Supp.2d 1343, 1356-57 (M.D.Fla.1998) (deferring ruling on admissibility of plaintiff's expert on eyewitness testimony, but finding Eleventh Circuit cases banning expert testimony regarding eyewitness identification in criminal cases "factually distinguishable in that they all involved criminal actions").
Accordingly, the Court finds expert testimony on the subject of eyewitness identification admissible, at least in this civil case, where such testimony will assist the trier of fact in understanding the evidence or determining a factual issue.
Dr. Cutler's proffered testimony is "sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Daubert, 509 U.S. at 591, 113 S.Ct. 2786. Cage alleges in his Amended Complaint that the "Defendants unjustly singled out the Plaintiff, and then endeavored to stretch and manipulate the facts and the evidence to fit the false hypothesis that he was guilty of the crime." (Am. Compl. ¶ 27.) With respect to his identification as the attacker, Cage alleges that the Defendants "unlawfully manipulat[ed] witnesses to falsely implicate [him] by means of improper suggestiveness and outright coercion, all of which violated [his] constitutional rights." (Id. ¶ 28.) Cage further alleges that "[t]he identification procedures utilized by the Defendants, both visual and voice, were unduly suggestive and otherwise improper. As a result of these unduly suggestive and improper procedures, Plaintiff was falsely identified, both prior to and then again at trial." (Id. ¶ 33.) Cage anticipates that Zilinger will testify at trial that she identified Cage because she recognized him as her attacker when she saw him, not because of any external suggestive influences. Dr. Cutler's testimony will allow the jury to learn what the science of human memory and eyewitness identification has to say about Zilinger's testimony and thus help them assess whether Zilinger's reflections of what caused her to pinpoint Cage are correct. In other words, Dr. Cutler will allow Cage to argue that given the circumstances, Zilinger's ability to form an eyewitness memory without unduly suggestive techniques is far more suspect than she presently believes.
Defendants' first argument — that the "accuracy of the victim's identification is not at issue in this case" because it "was heavily litigated and adjudicated at [Cage's] criminal trial" — is misplaced. Cage does not seek to use Dr. Cutler's testimony to prove he was incorrectly identified as the rapist; his exoneration based on DNA evidence has already proven that Zilinger's identification was erroneous. Instead, Cage seeks to prove that the identification procedures employed by the Defendant police officers were unduly suggestive and a causative factor in his wrongful conviction.
Next, the Defendants do not explain — nor is the Court able to discern — the significance of whether Cage's defense attorneys knew the facts upon which Dr. Cutler's opinions are based. Defendants cite no authority supporting the proposition that a law enforcement officer is absolved of liability despite having employed unduly suggestive identification techniques simply because the suspect's criminal defense attorneys were aware of the circumstances surrounding the identification. While evidence that Cage's defense attorneys knew the facts Dr. Cutler considered to create his report might be probative to the determination of whether the Defendants withheld exculpatory evidence, it does not bear on whether the defendant officers employed unduly suggestive identification techniques. Furthermore, Defendants fail to articulate why this issue is salient to their Daubert motion. Even if Cage's defense attorneys knew of the circumstances surrounding the identification (a contention that Cage disputes), this is an issue to be resolved at the summary judgment stage of the proceeding, not here.
Defendants also maintain that Dr. Cutler's testimony regarding troublesome aspects of the attack (e.g., the brief time the victim had to view her attacker's face, the victim's stress levels, poor lighting, the fact that her attacker wore a hat, the fact that the attacker and Zilinger were of
Similarly, Dr. Cutler's opinion that the Defendants boosted Zilinger's confidence in her identification is helpful to the jury notwithstanding the fact that the alleged confidence-boost occurred after the identification itself. Though this aspect of Dr. Cutler's conclusion does not bear on whether suggestive techniques helped secure Cage's conviction, it will aid the jury in assessing the credibility of Zilinger's testimony at trial that she is confident the defendant officers did not manipulate toward identifying Cage.
The Defendants next argue that Dr. Cutler's testimony should be excluded because he has no opinion on whether (1) the defendant officers deliberately manipulated Zilinger to misidentify Cage or (2) the defendant officers' acts and omissions criticized in Dr. Cutler's report actually caused Zilinger's identification to be faulty. Neither is a proper basis for exclusion. First, the fact that Dr. Cutler's opinion does not take a position on the defendant officers' state of mind is of no consequence. Indeed any opinion to that affect would be inadmissible speculation. See, e.g., George, 800 F.Supp.2d at 933 Moore, 781 F.Supp.2d at 704; Lipson, 46 F.Supp.2d at 763; see generally, Fed.R.Evid. 602. Nor is it of any import that Dr. Cutler's testimony does not establish every element Cage must prove to prevail on his claim. "When analyzing the relevance of proposed expert testimony, the district court must consider whether the testimony will assist the trier of fact with its analysis of any of the issues involved in the case. The expert need not have an opinion on the ultimate question to be resolved by the trier of fact in order to satisfy this requirement." Smith, 215 F.3d at 718 (quoting Walker, 208 F.3d at 587); see also Stollings, 725 F.3d 753; see, e.g., Burbach Aquatics, Inc. v. City of Elgin, Ill., No. 08 C 4061, 2011 WL 204800, at *5 (N.D.Ill. Jan. 18, 2011) (rejecting plaintiff's argument that expert's testimony should be excluded as unreliable because it did not bear on a number of issues in dispute, finding that "expert testimony need not concern the (or an) ultimate issue in the case in order to be reliable").
In Smith, the trial court excluded testimony from two automotive engineers in a case involving a defective steering gearbox on an automobile. 215 F.3d at 716-17. One expert proposed to testify regarding design issues, the other regarding manufacturing issues. Id. However neither expert was able to say whether ultimately it was defects in the design or defects in the manufacture that caused the steering box to fail. Id. The trial court excluded both experts' testimonies because they could not testify to this ultimate conclusion. Id. at 717. The Seventh Circuit reversed, holding that testimony of a qualified expert is admissible if it addresses an issue pertinent to the case. Id. at 720; see also Bielskis, 663 F.3d at 896 (citing Smith for the proposition that an expert's "inability to opine on the ultimate issue for the trier of fact did not mean they could not testify regarding other relevant factual issues").
Similarly, in Stollings, the defendant challenged expert testimony in a product liability case discussing the cost to society
Indeed the Seventh Circuit has rejected an argument nearly identical to the Defendants' in this exact context. In Newsome, the City of Chicago, a defendant, argued "that [the eyewitness identification expert's] testimony was irrelevant because it did not determine how the witness had been induced to believe that they saw [the section 1983 plaintiff] commit the murder." 319 F.3d at 306. The court rejected this argument, holding that the "testimony need not prove everything in order to be useful. As we have said, the jury had to consider the possibility that unhappy chance rather than malfeasance led to the mistaken conviction. [The expert] provided information valuable in this endeavor." Id. As Dr. Cutler's testimony provides "a probative piece of the evidentiary puzzle" regarding Cage's identification, his testimony will not be excluded on the basis that he does not conclude that the Defendants' techniques actually caused the faulty identification.
Finally, Defendants argue that Dr. Cutler's opinions are unfairly prejudicial and should be barred pursuant to Federal Rule of Evidence 403 because they invite the jury to hold the Defendants to standards established after Cage's 1994 identification. Specifically, Defendants take issue with (1) Dr. Cutler's suggestion that Detective Jones should have instructed Zilinger in the manner set forth by the Department of Justice in guidelines not published until 1999; and (2) Dr. Cutler's criticism of Jones for failing to use "fillers," based on the 1999 DOJ guidelines and a study published in 2009. However, Dr. Cutler explains that although the guidelines were not published until after the identification, the importance of instructions, standard presentation, and fillers as articulated in the guidelines has been understood by law enforcement prior to the guidelines' publication. (See Cutler Dep., Dkt. 177, Ex. B, p. 67-70.) This is an issue the Defendants will be free to explore on cross-examination.
For the reasons stated herein, Defendants' Motion to Bar the Testimony of Gary Harmor is granted in part and denied in part. Specifically, Harmor's opinions pertaining to the use of the term "extract," the periphery theory, and DQ Alpha testing will be admitted; his estimate of the degradation rate of DNA in sperm cells over the relevant time period and his opinion regarding the amount of DNA that would have been present on the underwear sample in 1995 will be barred. Defendants' Joint Motion No. 1 to Bar Plaintiff's Expert, Charles Alan Keel's, Testimony and Opinions is denied. Defendants' Joint Motion No. 2 to Bar Plaintiff's Expert, Charles Alan Keel's Testimony Regarding Defendant Pam Fish's Alleged
