Shew et al v. Horvath

Filing 48

ORDER: Ricky and Frances Shew's Motion to Strike Expert or Limit Opinion Testimony Regarding Defendant's Expert (Doc. # 44 ) is granted in part and denied in part. Dr. Hough may testify as to his knowledge of police procedures and inve stigative techniques and whether, in his opinion, those procedures and techniques were followed in this case. However, Dr. Hough may not testify as to the ultimate legal conclusion of whether probable cause existed. Signed by Judge Virginia M. Hernandez Covington on 2/16/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICKY SHEW
and FRANCES SHEW,
Plaintiffs,
v.

CASE NO:

8:16-cv-766-T-33JSS

WILLIAM HORVATH,
Defendant.
_____________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

Plaintiffs Ricky and Frances Shew’s Motion to Strike Expert
or Limit Opinion Testimony Regarding Defendant’s Expert (Doc.
# 44), filed on January 6, 2017. Defendant William Horvath
filed a response in opposition on January 20, 2017. (Doc. #
45). For the reasons that follow, the Motion is granted in
part and denied in part.
I.

Background
In June of 2015, Ricky and Frances Shew were living in

Hernando County, Florida, when William Horvath, a detective
with

the

Hernando

County

Sheriff’s

Office,

began

investigating them for mortgage fraud. (Doc. # 1 at ¶¶ 2, 56). The Shews were suspected of executing a sales contract
for their home without disclosing that there was sinkhole

1

damage to the property. (Doc. # 27-1 at 68-69). In the course
of

the

investigation,

Horvath

executed

a

probable

cause

affidavit to obtain an arrest warrant for the Shews. (Doc. #
1 at ¶ 7). Despite the purported defects with the probable
cause affidavit, of which the Shews allege Horvath knew or
should have known, Horvath did obtain a warrant and arrested
the Shews. (Id. at ¶¶ 8-10). However, the State Attorney
decided not to prosecute the case and filed a no information
on December 8, 2015. (Id. at ¶ 11).
In the Complaint, filed on March 30, 2016, the Shews
allege that Horvath violated their Fourth Amendment rights to
be free of unreasonable searches and seizures by arresting
them on the basis of a faulty probable cause affidavit. (Id.
at ¶¶ 1, 12). Horvath denies that he lacked probable cause to
arrest the Shews and filed his Answer containing twelve
defenses on May 10, 2016. (Doc. # 5).
Subsequently, on June 15, 2016, the Court entered its
Case Management and Scheduling Order setting February 1,
2017, as the discovery deadline, establishing March 1, 2017,
as the dispositive motions deadline, scheduling the pretrial
conference for August 17, 2017, and slating the case for the
September of 2017 trial term. (Doc. # 19).

2

On September 8, 2016, the Shews filed their motion for
partial summary judgment. (Doc. # 26). Horvath moved the Court
to stay the motion, or alternatively deny it as premature,
arguing that partial summary judgment is inappropriate as he
has not yet significantly engaged in discovery. (Doc. # 28).
The Court granted Horvath’s motion and denied the Shews’
motion for partial summary judgment on November 10, 2016.
(Doc. # 40).
Subsequently, on January 6, 2017, the Shews moved to
strike Horvath’s witness on the probable cause issue, Dr.
Richard M. Hough, Sr. (Doc. # 44). They assert that Dr.
Hough’s

report

impermissibly

concludes

that

Horvath

had

probable cause to arrest the Shews. (Doc. # 44 at ¶ 4). Along
with a description of police investigative practices and
officer training on probable cause, the report includes the
following opinions:
1.
The actions by Detective Horvath in this case
were appropriate and in accordance with agency
policy,
law,
and
current
professional
law
enforcement practices. Detective Horvath completed
a competent investigation.
2.
The investigation of the reported crime of
mortgage fraud, [section 817, Fla. Stat.], was
reasonable and proper under the circumstances of
this case. This progressed to the further lawful
authority to seek arrest warrants for Mr. and Mrs.
Shew for the felony crime of Mortgage Fraud,
[section 817.545(2)(a), Fla. Stat.].

3

3.
A reasonable officer would rely upon the
engineering reports of qualified firms for a
determination of sinkhole activity.
4.
A reasonable officer would conclude that
subjects would have known or should have known that
when receiving $240,000.00 that it would not be for
cancellation of a policy. The release the subjects
signed regarding this was for sinkhole activity.
5.
A
reasonable
officer
would
believe
a
disclosure asserting that there had never been a
sinkhole claim or monies paid for such property
defect indicated an offer for sale not in good
faith.
6.
A reasonable officer would assume that a
mortgage loan was applied for based on the
requirement within the terms of the contract for
sale to make such loan application within five
days.
7.
An order by the court (arrest warrant) was
issued that authorized law enforcement to take
Ricky Nelson Shew and Frances Mae Shew into custody
to answer for the charges brought. [] Horvath, via
affidavit, clearly laid out evidence for the court
to review for a determination of probable cause.
8.
The responsibility of the Hernando County
Sheriff’s Office, like all law enforcement, is to
investigate reports of crime.
9.
There are no indications of a baseless arrest,
or a criminal charge that was fabricated.
(Doc. # 47-1 at 5-6).
The Shews assert that Dr. Hough’s testimony should be
stricken or limited because: (1) whether a probable cause
affidavit establishes probable cause is a pure question of
law on which an expert should not opine; (2) Dr. Hough’s
methodology is unreliable and his opinions are based on

4

information not available to Horvath at the time of the
arrest;

and,

(3)

Dr.

Hough

does

not

possess

expertise

regarding mortgage fraud investigations. (Id. at ¶¶ 5-9).
Horvath responded to the Motion on January 20, 2017.
(Doc. # 45). The Shews did not file a reply. The Motion is
now ripe for review.
II.

Legal Standard
Federal Rule of Evidence 702 states:
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.
Implementing

Rule

702,

Daubert

v.

Merrell

Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), requires district
courts to ensure that any and all scientific testimony or
evidence admitted is both relevant and reliable. See Id. at
589–90. Such Daubert analysis also applies to non-scientific
expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999). District courts must conduct this gatekeeping
function

“to

ensure

that

speculative,

5

unreliable

expert

testimony

does

reliability

not

that

reach

the

jury

accompanies

under

the

the

mantle

appellation

of

‘expert

testimony.’” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291
(11th Cir. 2005).
The Eleventh Circuit “requires trial courts acting as
gatekeepers to engage in a ‘rigorous three-part inquiry.’”
Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010).
The district court must assess 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.
Id. The proponent of the expert testimony bears the burden of
showing,

by

a

preponderance

of

the

evidence,

that

the

testimony satisfies each of these requirements. Id. This
Court will address each aspect of the three-part inquiry
below. 1

1

Although the Shews do not call their Motion a Daubert motion,
the Motion requests that Dr. Hough’s testimony be stricken or
limited
and
raises
questions
regarding
Dr.
Hough’s
qualifications
and
methodology.
Accordingly,
Horvath
construed the Motion as a Daubert motion in his response, as
does the Court. See Perez v. Wells Fargo N.A., 774 F.3d 1329,
1331 (11th Cir. 2014) (“A ‘[r]ose is a rose is a rose is a
rose.’ And a motion for an entry of default judgment is a

6

III. Analysis
A.

Qualifications

The first question under Daubert is whether the proposed
expert

witness,

Dr.

Hough,

is

qualified

to

testify

competently regarding the matters he intends to address. City
of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 563 (11th
Cir. 1998). “Determining whether a witness is qualified to
testify as an expert ‘requires the trial court to examine the
credentials of the proposed expert in light of the subject
matter of the proposed testimony.’” Clena Invs., Inc. v. XL
Specialty

Ins.

Co.,

280

F.R.D.

653,

660

(S.D.

Fla.

2012)(quoting Jack v. Glaxo Wellcome, Inc., 239 F. Supp. 2d
1308,

1314–16

(N.D.

Ga.

2002)).

“This

inquiry

is

not

stringent, and so long as the expert is minimally qualified,
objections to the level of the expert’s expertise [go] to
credibility and weight, not admissibility.” Id. (citations
omitted)(internal

quotation

marks

omitted;

alteration

in

original)).
The Court finds that Dr. Hough’s experience as a law
enforcement agent and instructor qualify him as an expert in

motion for an entry of default judgment is a motion for an
entry of default judgment is a motion for an entry of default
judgment — even if its writer calls it a motion for judgment
on the pleadings.”)(internal footnote omitted).

7

law

enforcement

procedures.

Dr.

Hough

became

a

law

enforcement officer in Florida in 1979. (Doc. # 47-1 at 1).
Since

1980,

enforcement
including

he

has

officers

“been
in

investigations.”

policing

courses

specifically

at

including

the

continuously

various
(Id.).

courses

topics,
Dr.

college

training

and

in

Hough

specifically
has

“taught

university

criminal

law

level,

investigative

techniques since 1989.” (Id.); cf. Washington v. City of
Waldo, Fla., No. 1:15CV73-MW/GRJ, 2016 WL 3545909, at *2 (N.D.
Fla.

Mar.

1,

2016)(noting

that

expert’s

“education

and

experience in police practices matters goes well beyond that
of a layman,” and so he was “qualified to render expert
opinions on Plaintiff’s claims of false arrest, battery,
excessive force, and negligent hiring and retention”).
Dr.

Hough

has

a

master’s

degree

in

public

administration, with a focus on criminal justice, from the
John F. Kennedy School of Government at Harvard University,
as well as a doctorate degree in education, with a public
administration concentration, from the University of West
Florida. (Doc. # 47-2 at 1). He has written a number of peerreviewed

articles

on

various

subjects

including

homicide

investigations and officers’ use of force. (Id. at 14-15).
For the last four years, Dr. Hough has “testified at several

8

depositions, hearings, and trials at the state and federal
court level,” regarding police investigations. (Doc. # 47-1
at 1; Doc. # 47-2 at 11-14).
Although the Shews point out that Dr. Hough is not a
specialist on mortgage fraud, Dr. Hough is qualified on the
matter of criminal investigations generally. Cf. Feliciano v.
City of Miami Beach, 844 F. Supp. 2d 1258, 1263 (S.D. Fla.
2012)(holding
concerning

that

the

expert

‘knock

witness’s

and

talk’

“lack

technique

of

knowledge

[does]

not

disqualify him as a police practices expert”); Smith v. BMW
N. Am., Inc., 308 F.3d 913, 919 (8th Cir. 2002)(finding that
the testimony of an expert witness qualified in a general
field should not have been excluded merely because the expert
lacked expertise more specialized and more directly related
to the relevant issue).
The Court is mindful that its “gatekeeper role under
Daubert ‘is not intended to supplant the adversary system or
the role of the jury.’” Maiz v. Virani, 253 F.3d 641, 666
(11th Cir. 2001)(quoting Allison v. McGhan, 184 F.3d 1300,
1311 (11th Cir. 1999)). Vigorous cross-examination on Dr.
Hough’s familiarity with mortgage fraud investigations or the
differences between those and other types of investigations
will be sufficient to question Dr. Hough’s credibility. See

9

Id. (“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are
the

traditional

and

appropriate

means

of

attacking

[debatable] but admissible evidence.” (citations and internal
quotation marks omitted)). Thus, the Court finds that Dr.
Hough is qualified to render an expert opinion.
B.

Reliability

The next question is whether Dr. Hough’s methodology is
reliable.
Although an opinion from a non-scientific expert
should receive the same level of scrutiny as an
opinion from an expert who is a scientist, some
types of expert testimony will not naturally rely
on anything akin to the scientific method, and thus
should be evaluated by other principles pertinent
to the particular area of expertise.
Washington, 2016 WL 3545909, at *3 (citing Fed. R. Evid. 702,
Advisory Committee Notes (2000)). Still, “[i]f the [expert]
witness is relying solely or primarily on experience, then,”
in establishing reliability, “the witness must explain how
that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how
that experience is reliably applied to the facts.” United
States

v.

Frazier,

387

F.3d

1244,

1261

(11th

2004)(citation and internal quotation marks omitted).

10

Cir.

“Exactly how reliability is evaluated may vary from case
to case, but what remains constant is the requirement that
the trial judge evaluate the reliability of the testimony
before allowing its admission at trial.” Id. at 1262 (citing
Fed. R. Evid. 702, Advisory Committee Notes (2000)(“The trial
judge in all cases of proffered expert testimony must find
that

it

is

speculative

properly
before

it

grounded,
can

be

well-reasoned,

and

admitted.”))(emphasis

not
in

original). There are four recognized, yet non-exhaustive,
considerations

a

district

court

may

use

in

evaluating

reliability:
(1) whether the expert’s methodology has been
tested or is capable of being tested; (2) whether
the technique has been subjected to peer review and
publication; (3) the known and potential error rate
of the methodology; and (4) whether the technique
has
been
generally
accepted
in
the
proper
scientific community.
Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 988 (11th
Cir. 2016)(citations omitted). A district court can take
other relevant factors into account as well. Id. (citations
omitted). The Court’s analysis as to reliability “focus[es]
‘solely on principles and methodology, not on the conclusions
that they generate.’” Id. (citation omitted).
Dr. Hough avers that his report is “based upon [his]
knowledge of law enforcement combined with [his] education,

11

training,

experience,

and

ongoing

study

and

teaching

of

policing and investigative methods to practitioners, academy
recruits, and university students.” (Doc. # 47-1 at 1).
But, the Shews argue that Dr. Hough’s methodology is
unreliable. They assert that his statements regarding how
police officers should determine whether a crime has been
committed are correct but that Dr. Hough failed to analyze
Horvath’s conduct in light of those statements. (Doc. # 44 at
¶ 7). Dr. Hough states: “Law enforcement officers of the state
identify that a crime has occurred by, in part, matching
actions and information against the elements of a specified
crime.” (Doc. # 47-1 at 2). Next, “[t]he officer entrusted
with investigating various crimes then seeks evidence that an
act

or

omission

was

done

knowingly

or

intentionally

by

someone.” (Id.).
The Shews insist that Dr. Hough did not properly analyze
whether Horvath matched the Shews’ “actions and information
against the elements of” the crime of mortgage fraud. (Doc.
# 44 at 7-8). The mortgage fraud statute specifies that an
element of the crime of mortgage fraud is making a “material
misstatement,
mortgage

misrepresentation,

lending

process.”

Fla.

12

or

omission

Stat.

§

during

the

817.545(2)(a)

(emphasis added). According to the Shews, “Dr. Hough does not
address the fact that [] Horvath executed a probable cause
affidavit alleging that the Shews committed mortgage fraud
without knowing if the misrepresentation occurred during the
mortgage lending process, or if the mortgage lending process
ever occurred.” (Doc. # 44 at 8).
Yet, Dr. Hough does address the mortgage lending process
in his report — he opines that Horvath reasonably believed “a
mortgage loan was applied for based on the requirement within
the

terms

of

the

contract

for

sale

to

make

such

loan

application within five days.” (Doc. # 47-1 at 5, ¶ 6).
Nevertheless, the Shews insist that Dr. Hough’s methodology
is

“highly

suspect”

because

Dr.

Hough

“[came]

to

the

conclusion that it was reasonable for [Horvath] to execute a
probable cause affidavit not knowing whether an essential
element of mortgage fraud had been satisfied.” (Doc. # 44 at
8). Thus, it seems the Shews disagree with the results Dr.
Hough

has

reached

using

a

methodology

they

admittedly

consider reliable, and thus they insist that Dr. Hough could
not have been applying that methodology properly. But, the
reliability inquiry should not involve the Court scrutinizing
the conclusions of experts — only their methods. See Seamon,
813 F.3d at 988.

13

The Court considers Dr. Hough’s methodology used to
determine whether an investigator could reasonably conclude
that

a

crime

training

in

has

occurred,

criminal

based

on

his

investigations,

experience

and

reliable.

See

Washington, 2016 WL 3545909, at *3 (finding police practices
expert’s methodology reliable where the expert “used his law
enforcement experience, knowledge, and training in police
practices, including his review of court cases, and evaluated
the facts of the instant case to form his opinions”); BusseyMorice

v.

Kennedy,

No.

6:11-cv-970-Orl-36GJK,

2012

WL

7992419, at *3 (M.D. Fla. Dec. 28, 2012)(“As demonstrated in
Lynch’s affidavit, he uses his experience in police practices
and procedure, including select court cases, and evaluates
the facts in this case to form his opinions. There is nothing
inherently unreliable about this methodology.”). The Shews
will have the opportunity to cross-examine Dr. Hough on his
methodology and his opinions, which will be sufficient to
attack Dr. Hough’s credibility.
Additionally, the Shews note that Dr. Hough’s “opinions
are based upon information procured by Defendant’s counsel
during discovery and not solely upon what [] Horvath knew at
the time of the alleged violation of [the Shews’] rights.”
(Doc. # 44 at ¶ 8). The Shews do not identify any discovery

14

reviewed by Dr. Hough to which they particularly object —
rather, they consider the fact that Dr. Hough reviewed outside
materials at all damaging to the reliability of his testimony.
But, Dr. Hough’s review of discovery materials that were not
available at the time of Horvath’s investigation does not
render his methodology — based on his experience and knowledge
of

police

practices

—

unreliable.

Indeed,

Dr.

Hough’s

opinions take into account that Horvath was operating with
more

limited

information

during

his

investigation.

For

example, Dr. Hough acknowledges that Horvath relied on the
statement in the sales contract for the property that a
mortgage would be applied for within five days to deduce that
the mortgage lending process was underway. (Doc. # 47-1 at
5).
To the extent Dr. Hough relied on evidence outside of
Horvath’s knowledge at the time of the investigation to
determine that Horvath’s investigation was reasonable, the
Shews may challenge Dr. Hough’s credibility and the validity
of his conclusions on that basis during cross-examination.
See

Maiz,

253

F.3d

at

666

(“Vigorous

cross-examination,

presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking [debatable] but admissible evidence.” (citations

15

and internal quotation marks omitted)). The Court will also
entertain more specific objections to Dr. Hough’s testimony
at trial if he relies on information unavailable to Horvath
in opining on Horvath’s investigation.
Dr. Hough’s testimony meets the reliability requirement
of the three-part Daubert analysis.
C.

Assistance to the Trier of Fact

Expert testimony must also assist the trier of fact.
Fed. R. Evid. 702. “By this requirement, expert testimony is
admissible

if

it

concerns

matters

that

are

beyond

the

understanding of the average lay person.” Frazier, 387 F.3d
at 1262 (citation omitted). “[T]he court must ‘ensure that
the proposed expert testimony is “relevant to the task at
hand,” . . . i.e., that it logically advances a material
aspect of the proposing party’s case.’” Allison, 184 F.3d at
1312 (citation omitted). So, while “[t]he ‘basic standard of
relevance . . . is a liberal one,’ Daubert, 509 U.S. at 587,
.

.

.[,]

if

an

expert

opinion

does

not

have

a

‘valid

scientific connection to the pertinent inquiry[,]’ it should
be excluded because there is no ‘fit.’” Boca Raton Cmty.
Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232
(11th

Cir.

2009)

(citations

omitted).

“Proffered

expert

testimony generally will not help the trier of fact when it

16

offers nothing more than what lawyers for the parties can
argue in closing arguments.” Frazier, 387 F.3d at 1262-63
(citation omitted).
The Court is also mindful that at this stage of the
proceedings,

before

the

deadline

for

filing

motions

for

summary judgment has passed, it is unclear what issues will
remain for the jury to determine if the case proceeds to
trial. See Comer v. Gerdau Ameristeel US Inc., No. 8:14-cv607-T-23AAS,

2017

WL

192370,

at

*3

(M.D.

Fla.

Jan.

18,

2017)(finding it premature to exclude expert witness because
“[g]iven the remaining case deadlines, including anticipated
briefing of dispositive motions, it is unclear what issues
can be decided by the Court pretrial versus decided by the
jury

at

trial”

and

to

what

extent

“the

proposed

expert

testimony of Mr. Riedel would ultimately assist the jury to
understand the evidence or to determine a fact in issue”).
Thus, the Court’s analysis of whether Dr. Hough’s testimony
will assist the trier of fact is partially constrained because
what issues the trier of fact must decide remain unsure.
Nevertheless, the Shews argue that Dr. Hough’s testimony
includes impermissible legal conclusions that can be excluded
at this stage. Indeed, pure questions of law are “not a matter
subject to expert testimony.” Myers v. Bowman, 713 F.3d 1319,

17

1328 (11th Cir. 2013)(citing Freund v. Butterworth, 165 F.3d
839, 863 n.34 (11th Cir. 1999)(en banc)). Thus, “a witness
typically may not ‘give purely legal conclusions,’ such as
that an officer lacked probable cause to arrest.” Washington,
2016 WL 3545909, at *3 (citing Owen v. Kerr-McGee Corp., 698
F.2d 236, 240 (5th Cir. 1983)).
Yet, Federal Rule of Evidence 704 specifies that “[a]n
opinion is not objectionable just because it embraces an
ultimate issue.” Fed. R. Evid. 704(a). So, “[a]n expert may
testify as to his opinion on an ultimate issue of fact,” but
the “expert may not . . . merely tell the jury what result to
reach.” Montgomery v. Aetna Cas. & Surety Co., 898 F.2d 1537,
1541 (11th Cir. 1990). The Eleventh Circuit has acknowledged
that “the distinction between whether challenged testimony is
either an admissible factual opinion or an inadmissible legal
conclusion is not always easy to perceive.” Hanson v. Waller,
888 F.2d 806, 811 (11th Cir. 1989)(citations omitted).
The court in Washington precluded an expert witness from
testifying that an officer lacked probable cause to arrest a
suspect and used excessive force in effectuating that arrest.
Id. at *4. But, that court recognized that “a witness may
present the factors that might inform an officer’s probable
cause determination, as such testimony speaks to prevailing

18

standards in law enforcement and may be quite helpful to the
jury in conducting its own analysis of a false arrest claim,”
and allowed the witness to testify on police practices.

Id.

at *5 (citing Mutafis v. Markel, No. 11-13345, 2013 WL 119464,
at

*3–5

(E.D.

Mich.

Jan.

9,

2013)(distinguishing

“impermissible legal conclusions” offered by experts from
testimony regarding “prevailing standards in law enforcement”
or

“discrete

police-practice

issues,”

which

is

generally

admissible); Kobie v. Fifthian, No. 2:12-cv-98-FtM-29DNF,
2014 WL 1652421, at *9

(M.D. Fla. Apr. 23, 2014)(finding

that a police practices expert could testify to relevant
investigative practices and tactics, but could not state his
opinion that the arresting officer lacked probable cause to
arrest plaintiff and conduct a search)).
In his report, Dr. Hough states: “Detective Horvath
performed the function expected of law enforcement, [to]
determine if probable cause exists that a particular crime
occurred, based on the totality of the circumstances.” (Doc.
# 47-1 at 4). Then, among the list of his opinions, Dr. Hough
concludes that Horvath “completed a competent investigation”
and that he had the “lawful authority to seek arrest warrants
for Mr. and Mrs. Shew for” mortgage fraud. (Id. at 5).

19

The Court agrees that any legal conclusions propounded
by Dr. Hough, including that the arrest of the Shews was
lawful because Horvath had probable cause, would not assist
the trier of fact “because it is the role of the judge, and
not an expert witness, to instruct the jury on the applicable
principles of law.” Hopkins v. City of Huntsville, Ala., No.
CV-13-S-429-NE, 2014 WL 5488403, at *3 (N.D. Ala. Oct. 29,
2014)(excluding testimony of police practices expert “as to
whether

there

was

either

probable

cause

or

reasonable

suspicion to justify the searches and arrest of plaintiff”).
But,

Dr.

Hough

also

describes

the

investigative

procedures of the Hernando County Sheriff’s Office and the
training
cause.

that

(Doc.

impermissibly

officers
#

like

Horvath

47-1

at

2-3).

intrude

on

the

Such

receive

on

testimony

province

of

the

probable
does
jury

not
or

constitute a legal conclusion. Furthermore, it would be of
assistance to the jury because jurors likely will not know
how officers investigate crimes. Therefore, Dr. Hough may
testify as to such procedures and officers’ training on
determining

whether

probable

cause

exists

to

arrest

a

suspect. See Washington, 2016 WL 3545909, at *5 (“Dr. Thomas
will be permitted to testify as to the factors that Florida

20

police officers presumably consider in assessing probable
cause . . .”).
Dr. Hough may also give his opinion on whether Horvath
followed

standard

practices

and

procedures

during

his

investigation in light of Dr. Hough’s testimony regarding
those prevailing police practices and procedures. See Samples
v.

City

of

Atlanta,

916

F.2d

1548,

1551

(11th

Cir.

1990)(affirming admission of “use of force” expert’s opinion
that officer’s discharge of his firearm was reasonable when
the plaintiff charged him with a knife because “the manner in
which the expert answered the question, properly informed the
jury that the expert was testifying regarding prevailing
standards in the field of law enforcement”); Champion v.
Outlook Nashville, Inc., 380 F.3d 893, 908-09 (6th Cir.
2004)(allowing

expert’s

testimony

about

specific

police

practices and procedures relevant to the case and his opinion
on

whether

recognized

defendant’s
police

actions

standards

complied

governing

with

nationally

excessive

force);

Zuchel v. City & Cty. of Denver, Colo., 997 F.2d 730, 742
(10th Cir. 1993)(“Mr. Fyfe had a doctorate in criminal justice
and was an expert in police training, tactics, and the use of
deadly force. Courts generally allow experts in this area to

21

state an opinion on whether the conduct at issue fell below
accepted standards in the field of law enforcement.”).
For example, Dr. Hough emphasizes in his report that law
enforcement officers investigate crimes and are taught to use
the “probable cause” standard in arresting suspects, but
prosecutors then decide whether to prosecute based on whether
a case is strong enough to succeed under the “beyond a
reasonable doubt” standard. (Doc. # 47-1 at 3-4). Thus, an
arrest made after a procedurally proper investigation and
supported by probable cause may not result in prosecution.
(Id. at 4). To the extent the Shews may try to use the fact
that the charges against them were dropped to support that
there had not been sufficient probable cause for their arrest,
Dr. Hough may refute such an insinuation because he then would
only “testify that the prosecution ceased its case against
[the Shews] for reasons other than a lack of probable cause
(e.g., insufficient evidence to prove [the Shews were] guilty
beyond a reasonable doubt).” Kobie, 2014 WL 1652421, at *3.
These statements “are relevant to avoid any jury confusion”
as jurors may not be familiar with the various reasons for
which prosecutors decide not to pursue charges. Id.
Although Dr. Hough’s testimony will not be excluded in
its entirety as set forth herein, the Court will entertain

22

additional, more specific objections to Dr. Hough’s testimony
at trial, when it is clear what issues remain for the trier
of fact. 2
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Ricky and Frances Shew’s Motion to Strike Expert or Limit
Opinion Testimony Regarding Defendant’s Expert (Doc. # 44) is
GRANTED IN PART AND DENIED IN PART. Dr. Hough may testify as
to

his

knowledge

of

police

procedures

and

investigative

techniques and whether, in his opinion, those procedures and
techniques were followed in this case. However, Dr. Hough may
not testify as to the ultimate legal conclusion of whether
probable cause existed.
DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of February, 2017.

2

In his response, Horvath requests a Daubert hearing in the
event that the Court does not deny the Motion. (Doc. # 45 at
7). After consideration, the Court has determined that a
Daubert hearing is unnecessary here, because the case does
not appear unusually complex or involve many expert
witnesses. See City of Tuscaloosa, 158 F.3d at 565 n.21
(noting that “Daubert hearings are not required by law or by
rules of procedure,” though they may be “fruitful uses of the
court’s time and resources in complicated cases involving
multiple expert witnesses”).

23