Kobie v. Fifthian et al
Filing
136
ORDER denying 95 Plaintiff's Motions in Limine in all respects, except the Court defers ruling on the admissibility of any alleged hearsay statements that Mark Lee made to Defendant Jason Fifthian until trial; granting in part and denying in part 99 Defendant's Motion in Limine. Defendant's Motion is granted with respect to excluding expert testimony not timely disclosed and testimony about prior interactions between Plaintiff, his family members, and employees of the Lee County Sheriff's Department, but is denied in all other respects; granting in part and denying in part 100 Defendant's Motion to Exclude Plaintiff's Expert Witness, Philip Sweeting, And To Strike His Expert Report. Defendant's Motion is granted with respect to Mr. Sweeting's opinion that Defendant Fifthian acted willfully and maliciously towards Plaintiff and is denied in all other respects. Signed by Judge Sheri Polster Chappell on 4/23/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRED HERMAN KOBIE, III,
Plaintiff,
v.
Case No: 2:12-cv-98-FtM-29DNF
JASON FIFTHIAN, Detective of Lee
County Sheriff Department and MIKE
SCOTT, Sheriff of Lee County Sheriff
Department,
Defendants.
/
ORDER1
This matter comes before the Court on the parties' pretrial motions and respective
responses, namely (1) Plaintiff Fred Herman Kobie, III's Motions in Limine (Doc. #95) filed
on November 21, 2013, and Defendant Jason Fifthian's response (Doc. #122) filed
December 26, 2013; (2) Defendant's Motion in Limine (Doc. #99) filed on December 6,
2013; and (3) Defendant's Motion to Exclude Plaintiff's Expert Witness, Philip Sweeting,
And To Strike His Expert Report (Doc. #100) filed on December 6, 2013, and Plaintiff's
response (Doc. #127) filed on April 18, 2014. The undersigned heard arguments on these
1
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motions at the final pretrial conference held on April 21, 2014.2 Thus, the parties' motions
are ripe for review.
LEGAL STANDARD
A motion in limine presents a pretrial issue of admissibility of evidence that is likely
to arise at trial, and as such, the order, like any other interlocutory order, remains subject
to reconsideration by the court throughout the trial. See Stewart v. Hooters of Am., Inc.,
No. 8:04-cv-40-T-17-MAP, 2007 WL 1752843, at *1 (M.D. Fla. June 18, 2007) (citation
omitted). "The real purpose of a motion in limine is to give the trial judge notice of the
movant's position so as to avoid the introduction of damaging evidence, which may
irretrievably effect the fairness of the trial. A court has the power to exclude evidence in
limine only when evidence is clearly inadmissible on all potential grounds." Id. (citing
Luce v. United States, 469 U.S. 38, 41 (1984) (holding that district courts have the
authority to make in limine rulings per their authority to manage trials)). A court excludes
evidence on a motion in limine only if the evidence is clearly inadmissible for any purpose.
See id. (citing Hawthorne Partners v. AT & T Techs., 831 F. Supp. 1398, 1400 (N.D. Ill.
1993)).
Motions in limine are disfavored, and admissibility questions should be ruled upon
as they arise at trial. See id. Consequently, if evidence is not clearly inadmissible,
evidentiary rulings must be deferred until trial to allow questions regarding foundation,
relevancy, and prejudice. See id. "Denial of a Motion In Limine does not insure evidence
contemplated by the motion will be admitted at trial. Instead, denial of the motion means
2
At the final pretrial conference on April 21, 2014, Plaintiff notified the Court that he has voluntarily
dismissed this action against Defendant Mike Scott. As such, Defendant Scott is terminated as a named
defendant in this case and the counts against him are hereby dismissed. Furthermore, the Court will only
rule on the parties' pending motions as they pertain to Defendant Fifthian only.
the court cannot determine whether the evidence in question should be excluded outside
the trial context." Stewart, 2007 WL 1752873, at *1 (citing United States v. Connelly, 874
F.2d 412, 416 (7th Cir. 1989) (emphasis omitted)). The court will entertain objections on
individual proffers as they arise at trial, even though the proffer falls within the scope of a
denied motion in limine. See id. "Indeed, even if nothing unexpected happens at trial,
the district judge is free, in the exercise of sound judicial discretion, to alter a previous in
limine ruling." Id. (citing Hawthorne Partners, 831 F. Supp. at 1400-01).
DISCUSSION
A. Plaintiff's Motions in Limine
Plaintiff seeks to exclude the following at trial: (1) hearsay statements Mark Lee, a
confidential informant, made to Defendant Fifthian during the criminal investigation that
led to Plaintiff's arrest and detention; (2) opinions that Defendant had probable cause to
arrest Plaintiff; (3) evidence of Plaintiff's prior criminal acts and pleas; and (4) Defendant
Fifthian from wearing his police uniform. (Doc. #95). The Court will address each of
Plaintiff's issues in turn.
1. Hearsay Statements that Mark Lee Allegedly Made to Defendant Fifthian
Plaintiff moves to exclude "any and all inadmissible hearsay statements" Mr. Lee
made to Defendant Fifthian during the criminal investigation that led to his arrest. (Doc.
#95 at 1). Plaintiff also seeks to bar any double hearsay statements, bad character
statements about him, and unrelated statements about the criminal investigation. (Doc.
#95 at 2). Defendant Fifthian, in opposition, argues against a blanket prohibition on all
statements Mr. Lee made to him. (Doc. #112 at 2).
Plaintiff's first motion in limine is denied as unreasonably overbroad.
He
categorically fails to identify specific statements that Mr. Lee allegedly made to Defendant
Fifthian that constitute inadmissible hearsay and/or double hearsay. (Doc. #95 at 4-5).
Without knowing which statement(s) Plaintiff challenges, the Court cannot rule on its
admissibility before trial. See Bowden ex rel. Bowden v. Wal-Mart Stores, Inc., No. Civ.
A 99-D-880-E, 2001 WL 617521, at *1 (M.D. Ala. Feb. 20, 2001) ("The court may deny a
motion in limine when it 'lacks the necessary specificity with respect to the evidence to be
excluded.'" (citation omitted)). In essence, Plaintiff invites the Court to blindly rule that all
statements Mr. Lee made to Defendant Fifthian are inadmissible hearsay. The Court
declines his invitation. See LSQ Funding Grp. v. EDS Field Servs., 879 F. Supp. 2d 1320,
1337 (M.D. Fla. 2012) ("A motion in limine is not the proper vehicle to resolve substantive
issues, to test issues of law, or to address or narrow the issues to be tried." (citation
omitted)). Since Mr. Lee's alleged statements to Defendant Fifthian are not clearly
inadmissible at this time, the Court defers on this evidentiary ruling until trial.
See
Stewart, 2007 WL 1752873, at *1 (citation omitted).
2. Opinions Regarding Defendant Fifthian's Probable Cause to Arrest
Plaintiff
In Plaintiff's second motion in limine, he requests that the Court "bar any and all
statements made by Defendants, all their counsel, and/or witnesses as to whether there
was probable cause to arrest" him because such testimony would contain ultimate
conclusions that are reserved for the jury. (Doc. #95 at 6). Specifically, Plaintiff seeks to
preclude James D. Miller, Esq., the prosecuting attorney in the underlying criminal case,
from testifying that the criminal charges for which Plaintiff was arrested were dropped for
reasons other than a lack of probable cause. (Doc. #95 at 6). Defendant agrees that
testimony on whether probable cause existed for an arrest is generally inadmissible;
however, he asserts that Mr. Miller's testimony is fundamentally different. (Doc. #112 at
4). For the reasons explained below, the Court denies Plaintiff's second motion.
Based on the Second Amended Complaint and Plaintiff's pretrial submissions, it
appears he will introduce evidence that the criminal charges for which he was arrested
were ultimately dropped. In rebuttal, Defendant intends to call Mr. Miller to refute any
insinuation that the charges were dropped for a lack of probable cause. Contrary to
Plaintiff's contention, Mr. Miller will not testify that Defendant had probable cause to arrest
him; but he will merely testify that the prosecution ceased its case against Plaintiff for
reasons other than a lack of probable cause (e.g., insufficient evidence to prove Plaintiff
was guilty beyond a reasonable doubt). To exclude such testimony would prevent the jury
from hearing important information that may help them reach a verdict. The statements
Plaintiff wishes to exclude, therefore, are relevant to avoid any jury confusion; and he has
not offered any persuasive arguments to demonstrate that the prejudicial effect of this
evidence outweighs the probative value. Accordingly, Plaintiff's second motion is denied.
3. Evidence of Plaintiff's Prior Criminal Acts and Pleas
Next, Plaintiff seeks to exclude evidence regarding his prior arrests, pleas, and
convictions under Rule 401 of the Federal Rules of Evidence. (Doc. #95 at 7). He
contends that such evidence is highly prejudicial and irrelevant to whether Defendant had
probable cause to arrest him. (Doc. #95 at 7). While Defendant concurs that Plaintiff's
prior pleas and convictions are irrelevant, he nevertheless contends that evidence of his
prior arrests are relevant because of his alleged damages - i.e. the "fear, humiliation,
anger and emotional distress."
(Doc. #112 at 5; Doc. #65 at ¶ 26). According to
Defendant, because Plaintiff has previously been arrested, the effect his arrest in question
had on his emotions and reputation is much less than the effect on a citizen with a lawabiding history. (Doc. #112 at 5).
The Court denies Plaintiff's third motion because his prior arrests are relevant for
the limited purpose of undermining his damages claims. In Bryan v. Jones, the Fifth
Circuit Court of Appeals addressed, among other things, whether the district court erred
in refusing to permit proof of the plaintiff's prior imprisonment as relevant to the damages
he sought in his § 1983 action for false imprisonment. 519 F.2d 44 (5th Cir. 1975), rev'd
and remanded on other grounds, 530 F.2d 1210 (5th Cir. 1976) (en banc).3 In finding
error with the district court's decision to ban proof of the plaintiff's prior imprisonment, the
Fifth Circuit found that
[the plaintiff] was allowed to adduce proof of the adverse
conditions under which he was confined. The parties should
have been given an opportunity to develop all factual
elements which related to damages. One such element is the
suffering caused by the very fact of incarceration, absent any
issue concerning the condition of or reason for such
incarceration. Even a minimal sort of penal confinement may
be debilitating to many. Under comparable conditions of
confinement, however, this mental anguish may be much less
for the recidivist than for one incarcerated for the first time.
Therefore, the fact of prior imprisonment is a consideration to
the extent of mental suffering occasioned by the wrongful
confinement. Accordingly, this cause must be remanded so
that the damage issue may be tried anew.
Id. at 46; see also Coney v. Cobas, 129 F. App'x 561 (11th Cir. 2005) (finding that the
district court did not abuse its discretion in excluding evidence of the plaintiff's prior arrests
and convictions as it related to emotional damages he allegedly suffered from the arrest
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.
at issue because (1) the crux of his trauma stemmed from the arrest, not the incarceration,
and (2) the jury already knew of his prior convictions). Thus, to the extent Plaintiff testifies
he suffered "fear, humiliation, anger, and emotional distress" because of his arrest and
imprisonment, evidence of his prior arrests are relevant to the issue of damages. Beyond
conclusory allegations, Plaintiff has not demonstrated that substantial prejudice
outweighs the probative value of this evidence. Accordingly, the Court denies Plaintiff's
third motion in limine.
4. Defendant Fifthian Wearing His Police Uniform During Trial
Finally, Plaintiff moves to bar Defendant from wearing his police uniform during
trial, arguing that the uniform would unduly bolster Defendant's credibility and "have an
unfair emotional impact on the jury." (Doc. #95 at 9). Plaintiff, however, withdrew his
motion at the final pretrial conference on April 21, 2014. The Court, therefore, denies
Plaintiff's fourth motion in limine as moot.
B. Defendant Fifthian's Motion In Limine
Defendant Fifthian seeks to exclude the following at trial: (1) opinions from Philip
Sweeting, Plaintiff's expert witness, that were not timely disclosed; (2) testimony
regarding the outcome of the underlying criminal prosecution; and (3) testimony regarding
prior interactions between Plaintiff, his family members, and employees of the Lee County
Sheriff's Department.4 (Doc. #99). The Court will address each of Defendant's arguments
in turn.
4
Defendant's Motion In Limine also seeks to exclude Plaintiff from introducing an affidavit of Mark Lee in
lieu of his live trial testimony because the affidavit was filed after the discovery deadline. (Doc. #99 at 5).
According to Plaintiff's Final Witness List (Doc. #125), however, Mr. Lee will testify at trial. As such,
Defendant's motion in limine as it relates to Mark Lee's affidavit is moot.
1. Expert Opinions Not Timely Disclosed
Defendant Fifthian moves to exclude testimony from Mr. Sweeting on matters not
disclosed in his expert report dated July 23, 2013. (Doc. #99 at 2-3). Defendant's concern
arises from Plaintiff's Final Witness List (Doc. #125), which states that Mr. Sweeting "will
testify as to police practices and the use of confidential informants."
According to
Defendant, Mr. Sweeting's report does not discuss these topics, but offers three opinions
on unrelated matters: (1) a reasonable officer confronted with similar facts would know or
should have known there was no evidence to support Plaintiff's arrest; (2) Defendant
acted willfully and maliciously towards Plaintiff because he embellished his Probable
Cause Statement (Doc. #77-1 at 2-5), failed to follow-up on leads indicating that Mark
Lee, and not Plaintiff, committed the thefts, and failed to notify the State Attorney's Office
of evidence exonerating Plaintiff; and (3) the Lee County Sheriff's Department acted with
deliberate indifference to Plaintiff's constitutional rights if it knew of Defendant's actions
and failed to take corrective measures. (Doc. #100-1). As such, Defendant argues that
Plaintiff cannot introduce testimony from Mr. Sweeting on police practices and the use of
confidential informants at trial. (Doc. #99 at 1-3).
Federal Rule of Civil Procedure 26(a)(2) states that expert witnesses must submit
a written report that contains, among other things, "a complete statement of all opinions
the witness will express and the basis and reasons for them[.]"
Fed. R. Civ. P.
26(a)(2)(B)(i). "A party must make these disclosures at the times and in the sequence
that the court orders." Fed. R. Civ. P. 26(a)(2)(D). After disclosing an expert report, a
party has a duty to supplement the information in the report, and "[a]ny additions or
changes to this information must be disclosed by the time the party's pretrial disclosures
under Rule 26(a)(3) are due." Fed. R. Civ. P. 26(e)(2). If a party fails to provide
information as required by Rule 26, he is prevented from using that information at a trial,
"unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1); see
also Mitchell v. Ford Motor Co., 318 F. App'x 821, 825 (11th Cir. 2009) ("The burden of
establishing that a failure to disclose was substantially justified or harmless rests on the
nondisclosing party." (citation omitted)).
Here, Mr. Sweeting's testimony is limited to "the opinions, basis, reasons, data,
and other information disclosed in [his] written expert report" (Doc. #33). Although Mr.
Sweeting does not identify precise police practices in his report, he summarizes and
discusses the steps Defendant took in obtaining warrants to arrest Plaintiff and search
his business. (Doc. #100-1 at 2-6). To that end, Mr. Sweeting may testify generally about
police procedures and investigative tactics that he encountered during his extensive
experience in law enforcement. He may not, however, testify to topics not disclosed in
his report, such as national police standards that Defendant purportedly did not follow
during his investigation of Plaintiff.
For these limited reasons, the Court grants
Defendant's motion to the extent they are consistent with the Court's rulings below.
2. Testimony Regarding
Prosecution
the
Outcome
of
the
Underlying Criminal
Defendant Fifthian next moves to exclude evidence that the charges against
Plaintiff were ultimately dropped. (Doc. #99 at 3). Defendant does so in anticipation of
Plaintiff's criminal defense attorney, Peter Ringsumth, Esq., testifying about the outcome
of his criminal case. (Doc. #99 at 3; Doc. #125). According to Defendant, the case's
outcome bears no relevance to Plaintiff proving his claims. This is particularly so where
the determinative element for false arrest is whether probable cause existed at the time
of arrest, Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010), and the
determinative element for false imprisonment is whether Defendant caused Plaintiff to be
confined after he knew or should have known that Plaintiff was entitled to be released,
West v. Tillman, 496 F.3d 1321, 1327 (11th Cir. 2007). (Doc. #99 at 3-4).
With respect to false arrests, "[d]ropped charges provide an occasion to puncture,
through retrospection, the onerous on-scene judgments of an officer.
The ultimate
release of charges . . . is of no significance in the probable cause analysis. Officers are
not expected to be legal technicians." Arrington v. Kinsey, 512 F. App'x 956, 959 (11th
Cir. 2013) (citation omitted). In Marx v. Gumbinner, the Eleventh Circuit held that whether
"a defendant is subsequently acquitted or charges are dropped against [him] is of no
consequence in determining the validity of the arrest itself." 905 F.2d 1503, 1507 (11th
Cir. 1990) (citing Baker v. McCollan, 443 U.S. 137, 145 (1979) ("The Constitution does
not guarantee that only the guilty will be arrested. If it did, Sec. 1983 would provide a
cause of action for every defendant acquitted--indeed, for every suspect released.")
(other citations omitted)). Based on those principles, the outcome of the underlying
criminal prosecution is irrelevant to Plaintiff's false arrest claim.
To prevail on the false imprisonment claim, Plaintiff must show that (1) he was
unwillingly detained by Defendant; (2) Defendant intended to detain him; and (3)
Defendant detained him without lawful authority. See Campbell v. Johnson, 586 F.3d
835, 840 (11th Cir. 2009). Since Plaintiff's arrest was based on a warrant, he must show
why his underlying arrest was unlawful, or why, despite the lawful arrest, the subsequent
imprisonment was unlawful. To do so, evidence that the underlying criminal charges were
dropped is relevant and not unduly prejudicial to Defendant. Accordingly, Defendant's
second motion is denied.
3. Testimony Regarding Prior Interactions Between Plaintiff, His Family
Members, and Employees of the Lee County Sheriff's Department
Finally, Defendant Fifthian moves to exclude Plaintiff from introducing evidence
regarding past communications between Plaintiff, his father, and employees at the Lee
County Sheriff's Department. (Doc. #99 at 4). According to Defendant, Plaintiff intends
to use this evidence to establish that they were biased against him. It is Defendant's
position that evidence of bias is irrelevant to Plaintiff's false arrest and false imprisonment
claims. (Doc. #99 at 5).
To receive qualified immunity from Plaintiff's claims, as Defendant asserts here,
he needed to have had arguable probable cause to arrest Plaintiff. (Doc. #106 at 15).
Arguable probable cause exists where "reasonable officers in the same circumstances
and possessing the same knowledge as the Defendants could have believed that
probable cause existed to arrest Plaintiff." Kingsland v. City of Miami, 382 F.3d 1220,
1232 (11th Cir. 2004) ("The essence of qualified immunity analysis is the public official's
objective reasonableness, regardless of his underlying intent or motivation."). "'This
standard is an objective one and does not include an inquiry into the officer's subjective
intent or believes.'" Rushing v. Parker, 599 F.3d 1263, 1266 (11th Cir. 2010) (citation
omitted). A defendant's "'subjective beliefs about the matter, however induced, are
actually irrelevant to the inquiry.'" Rushing, 599 F.3d at 1266 (citation omitted).
Based on the foregoing, evidence of Defendant's purported bias is irrelevant to
determining whether probable cause existed for Plaintiff's arrest, and any evidence
offered for the purpose of establishing such bias should be excluded.
Accordingly,
Defendant's third motion is granted in this respect.
C. Defendant Fifthian's Motion to Exclude Plaintiff's Expert Witness and to
Strike the Corresponding Expert Report
In support of his case, Plaintiff retained Mr. Sweeting, a former Deputy Chief of
Police in Boca Raton, Florida, as an expert on police practices and procedures. As
previously stated, Mr. Sweeting prepared a report (Doc. #100-1) in which he opined that
(1) a reasonable officer confronted with similar facts would know or should have known
there was no evidence to support the arrest of Plaintiff; (2) Defendant acted willfully and
maliciously towards Plaintiff because he embellished his Probable Cause Statement
(Doc. #77-1 at 2-5), failed to follow-up on leads indicating that Mark Lee, and not Plaintiff,
committed the thefts, and failed to notify the State Attorney's Office of evidence
exonerating Plaintiff; and (3) the Lee County Sheriff's Department acted with deliberate
indifference to Plaintiff's constitutional rights if it knew of Defendant's actions and failed
to take corrective measures. (Doc. #100-1). Defendant now moves to exclude Mr.
Sweeting as an expert witness. (Doc. #100).
Federal Rule of Evidence 702 governs the admissibility of expert testimony. It
provides, in relevant part:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.
Fed. R. Evid. 702; see also United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir.
2004) (stating that expert testimony assists the trier of fact "if it concerns matters that
are beyond the understanding of the average lay person" but "generally will not help the
trier of fact when it offers nothing more than what lawyers for the parties can argue in
closing arguments" (citation omitted)).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court noted that
Rule 702 imposes a duty on trial courts to act as "gatekeepers" to insure that
speculative and unreliable opinions do not reach the jury. 509 U.S. 579, 589 n. 7
(1993). The objective of this gatekeeping function is to ensure that expert witnesses
employ in the courtroom the "same level of intellectual rigor that characterizes the
practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152 (1999). The court's gatekeeping role is especially significant given "the expert's
opinion can be both powerful and quite misleading because of the difficulty in evaluating
it." Frazier, 387 F.3d at 1260 (11th Cir. 2004).
To fulfill this role, the Eleventh Circuit instructs district courts to determine whether:
(1) the expert is qualified to testify competently regarding the
matters he intends to address; (2) the methodology by which
the expert reaches his conclusions is sufficiently reliable as
determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the
application of scientific, technical, or specialized expertise, to
understand the evidence or to determine a fact in issue.
Frazier, 387 F.3d at 1260 (citation omitted). In evaluating the admissibility of expert
testimony, district courts "have substantial discretion in deciding how to test an expert's
reliability and whether the expert's relevant testimony is reliable." United States v. Majors,
196 F.3d 1206, 1215 (11th Cir.1999) (citation omitted). Importantly, in adjudicating the
admissibility of expert testimony, it is not the function of the court to determine the ultimate
persuasiveness of the testimony. See Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190,
1193 (11th Cir. 2011) (citations omitted).
First, Defendant argues that Mr. Sweeting's opinions lack a discernible
methodology because, to the extent they are based on his personal experience, there is
no indication of how his experience led him to the conclusions he has reached in his
report. (Doc. #100 at 7). Moreover, Defendant points out that Mr. Sweeting improperly
utilized the "two-pronged test" set forth in Aguilar v. Texas, U.S. 378 U.S. 108, 114 (1964)
to assess whether Mark Lee's information gave Defendant probable cause for a warrant
because the Supreme Court abandoned that standard for a "totality-of-the-circumstances
test" in Illinois v. Gates, 462 U.S. 213, 232 (1983).
Plaintiff opposes Defendant's
arguments, maintaining that Mr. Sweeting's methodology expressly included reviewing
applicable laws, nationally accepted police practices, and the facts as presented in
depositions, policies, reports, and the like to formulate his opinions. (Doc. #127 at 4).
According to Plaintiff, any concerns Defendant has regarding Mr. Sweeting's
methodology may be addressed during cross-examination. (Doc. #127 at 4).
Contrary to Defendant's position, Mr. Sweeting's report sets forth a sufficient
methodology. Defendant charges that Mr. Sweeting's opinions do not indicate how his
twenty-six years in law enforcement led him to the conclusions he reached. (Doc. #100
at 7-8). Mr. Sweeting, however, explains his qualifications at the outset of his report and
attaches his CV and lists the cases for which he has testified or provided consultation as
an expert in police practices. (Doc. #100-1). For example, Mr. Sweeting's duties included
reviewing and writing all police department policies to ensure they were in compliance
with all state and federal laws, court decisions, and standards as required by the
Commission on Accreditation for Law Enforcement Agencies. (Doc. #100-1 at 9). It is
clear that Mr. Sweeting based his analysis of the instant case on his experience as a
Deputy Chief of Police and the experiences that led him to that position. To the extent
Defendant is concerned that Mr. Sweeting did not explicitly explain how his experiences
served as a sufficient basis for his opinions, he may explore those concerns on crossexamination. (Doc. #127 at 4). Accordingly, Defendant's motion is denied in this respect.
Second, Defendant argues that Mr. Sweeting's opinion on the existence of
probable cause is an inadmissible legal conclusion. In response, Plaintiff clarifies that
Mr. Sweeting will only testify about Defendant's investigative procedures and tactics, and
not opine on whether he had probable cause to arrest Plaintiff. (Doc. #127 at 4-7). As
previously stated, Mr. Sweeting may testify to Defendant Fifthian's investigative
procedures and tactics that are in essence disclosed in his report, but he may not state
his opinion that Defendant lacked probable cause to arrest Plaintiff and search his
business.
Third, Defendant argues that, like the foregoing, Mr. Sweeting's opinion that
Defendant acted willfully and maliciously by embellishing reports, failing to follow-up on
leads indicating that Plaintiff did not commit the car thefts, and failing to notify the State
Attorney's Office of exculpatory evidence are inadmissible legal conclusions. (Doc. #100
at 11). In addition, Defendant maintains that Mr. Sweeting's opinion is not beyond the
average juror's understanding, which renders his opinion unnecessary. (Doc. #100 at
11). Plaintiff, in opposition, argues that Mr. Sweeting may testify to an ultimate issue in
the case where it is helpful to the trier of fact. (Doc. #127 at 7-8 (citing Davis v. Mason
Cnty., 927 F.2d 1473 (9th Cir. 1991) (allowing a police expert to testify that a sheriff was
"reckless" in failing to train deputies where failure to train could serve as a basis of
municipal liability) (other citations omitted)).
Under Federal Rule of Evidence 704(a), "[a]n opinion is not objectionable just
because it embraces an ultimate issue." Fed. R. Evid. 704(a). "[T]o be admissible under
Rule 704 an expert's opinion on an ultimate issue must be helpful to the jury and also
must be based on adequately explored legal criteria." Haney v. Mizell Memorial Hosp.,
744 F.2d 1467, 1474 (11th Cir. 1984) (citing Fed. R. Evid. 704 advisory committee note);
see also United States v. Grzybowicz, No. 12-13749, 2014 WL 1328250, at *1 (11th Cir.
Apr. 4, 2014) ("'An expert may testify as to his opinion on an ultimate issue of fact,'
provided that he does not 'merely tell the jury what result to reach' or 'testify to the legal
implications of conduct.'" (citations omitted)).
The Court finds that Mr. Sweeney's willful and malicious opinion is inadmissible,
not because it goes to ultimate issue of the case, but because it is not "beyond the
understanding of the average lay person" and fails to "offer[] more than what lawyers for
the parties can argue in closing arguments." Frazier, 387 F.3d at 1262; see also Fed. R.
Evid. 704 advisory committee note ("The abolition of the ultimate issue rule does not lower
the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful
to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time.
These provisions afford ample assurances against the admission of opinions which would
merely tell the jury what result to reach[.]"). Mr. Sweeting's opinion that Defendant acted
willfully and maliciously would be only marginally helpful to the jury, if helpful at all. See
Frazier, 387 F.3d at 1262.
Accordingly, Defendant's motion is granted as to Mr.
Sweeting's opinion that he acted willfully and maliciously towards Plaintiff.
Finally, Defendant argues that Mr. Sweeting's opinion that the Sheriff's Department
may have exhibited a deliberate indifference to the rights of Plaintiff and all citizens is
irrelevant and prejudicial.
(Doc. #100 at 12-13). Since Plaintiff does not object to
Defendant's motion in this respect (Doc. #127) and he has voluntarily dismissed Sheriff
Mike Scott as a named defendant, the Court grants his request.
Accordingly, it is now
ORDERED:
(1) Plaintiff's Motions in Limine (Doc. #95) are DENIED in all respects, except the
Court defers ruling on the admissibility of any alleged hearsay statements that Mark Lee
made to Defendant Jason Fifthian until trial;
(2) Defendant's Motion in Limine (Doc. #99) is GRANTED in part and DENIED in
part. Defendant's Motion is granted with respect to excluding expert testimony not timely
disclosed and testimony about prior interactions between Plaintiff, his family members,
and employees of the Lee County Sheriff's Department, but is denied in all other respects;
(3) Defendant's Motion to Exclude Plaintiff's Expert Witness, Philip Sweeting, And
To Strike His Expert Report (Doc. #100) is GRANTED in part and DENIED in part.
Defendant's Motion is granted with respect to Mr. Sweeting's opinion that Defendant
Fifthian acted willfully and maliciously towards Plaintiff and is denied in all other respects.
It is so DONE and ORDERED in Fort Myers, Florida this 23rd day of April, 2014.
Copies: To All Parties of Record
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