v. Arpaio et al

Filing 91

ORDER: Sheriff Arpaios 86 Motion In Limine to Exclude Plaintiffs' Expert D.P. Van Blaricom From Providing Testimony or Other Evidence is DENIED with respect to paragraphs 8a-8c and 8e of Mr. Van Blaricom's expert report and GRANTED in all other respects. See order for details. Signed by Judge Neil V Wake on 8/22/11. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas Lovejoy and Carolyn Lovejoy,
husband and wife,

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Plaintiffs,

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ORDER

vs.

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No. CV-09-01912-PHX-NVW

Sheriff Joseph Arpaio and Ava Arpaio,
husband and wife,

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Defendants.

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Before the Court is Sheriff Arpaio’s “Motion In Limine to Exclude Plaintiffs’

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Expert D.P. Van Blaricom From Providing Testimony or Other Evidence” (Doc. 86). For

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the reasons explained below, the motion will be granted in part and denied in part.

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The alleged facts have been summarized elsewhere (see Doc. 23) and will not be

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repeated here. For purposes of this motion, it suffices to note that Sgt. Lovejoy brought

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this suit against Sheriff Arpaio alleging various forms of malicious prosecution and abuse

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of process. These allegations arose from the criminal prosecution brought against Sgt.

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Lovejoy for accidentally leaving his K-9 partner, Bandit, in a hot vehicle, causing

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Bandit’s death.

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Sgt. Lovejoy has hired a police practices expert, D.P. Van Blaricom, to offer

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opinions about the propriety of Sheriff Arpaio’s alleged actions. Mr. Van Blaricom spent

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29 years as a police officer in Bellevue, Washington, including 11 years as chief of

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police.

During that time, Mr. Van Blaricom established a K-9 unit in his police

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department. Since his retirement from active duty, Mr. Van Blaricom has been a police

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practices consultant, having been retained as an expert in over 1,500 lawsuits over the

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course of 25 years. Sheriff Arpaio has now challenged the admissibility of the opinions

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expressed in Mr. Van Blaricom’s expert report.

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Mr. Van Blaricom may testify about his background, experience, and credentials,

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which are not in dispute. Mr. Van Blaricom may also offer testimony consistent with

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paragraphs 8a–8c and 8e of his expert report (Doc. 86-1). These paragraphs provide

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background on how K-9 units are viewed within police departments, something about

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which average jurors may not be aware.

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Fed. R. Evid. 403 prevents Mr. Van Blaricom from testifying based on paragraph

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8d. It is not relevant that Mr. Van Blaricom has not heard of incidents of handlers

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intentionally mistreating police dogs. Even if Sheriff Arpaio himself had never before

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heard of such incidents, the evidence may ultimately support an inference that he

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reasonably believed this was the first.
Fed. R. Evid. 702 prevents Mr. Van Blaricom from testifying based on paragraph

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8f.

Mr. Van Blaricom’s generalization — “absolutely preclude any intentional neglect

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or mistreatment” — is not proper expert testimony. It is not the product of “facts or data”

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nor of “reliable principles and methods.” Fed. R. Evid. 702. Accordingly, it will be

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excluded.

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The remainder of Mr. Van Blaricom’s opinions will be excluded because they will

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not “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id.

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Van Blaricom summarizes documents and deposition testimony and draws no more than

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basic inferences about human motives and conduct. Jurors understand the emotions and

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tendencies at issue just as well. Accordingly, the Rules of Evidence do not permit Mr.

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Van Blaricom’s testimony on those issues. See United States v. Hanna, 293 F.3d 1080,

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1086 (9th Cir. 2002) (expert testimony must “address[] an issue beyond the common

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knowledge of the average layperson” (internal quotation marks omitted)). Some of Mr.

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Van Blaricom’s opinions are also plain legal conclusions, and therefore improper expert

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testimony on that basis as well.

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IT IS THEREFORE ORDERED that Sheriff Arpaio’s “Motion In Limine to

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Exclude Plaintiffs’ Expert D.P. Van Blaricom From Providing Testimony or Other

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Evidence” (Doc. 86) is DENIED with respect to paragraphs 8a–8c and 8e of Mr. Van

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Blaricom’s expert report and GRANTED in all other respects.

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Dated this 22nd day of August, 2011.

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