Feliciano et al v. City of Miami Beach et al
Filing
181
ORDER granting in part and denying in part 116 Motion in Limine. Signed by Magistrate Judge John J. O'Sullivan on 2/22/2012. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-23139-CIV-LENARD/O'SULLIVAN
JANET FELICIANO,
Plaintiff,
vs.
CITY OF MIAMI BEACH, a
Municipal entity, et al.,
Defendants.
______________________________/
ORDER
THIS MATTER is before the Court on the Defendants, Robert Acosta, Andrew
Dohler, Douglas Dozier, James Nash, and the City of Miami Beach’s Motion in Limine
to Exclude Plaintiff’s Police Expert from Rendering Any Opinion or Testifying at Trial
(DE# 116, 11/15/11).1 This matter was referred to the undersigned by the Honorable
Joan A. Lenard pursuant to 28 U.S.C. § 636(b). See Order of Reference (DE# 144,
12/29/11). For the reasons stated herein, it is
ORDERED AND ADJUDGED that the Defendants, Robert Acosta, Andrew
Dohler, Douglas Dozier, James Nash, and the City of Miami Beach’s Motion in Limine
to Exclude Plaintiff’s Police Expert from Rendering Any Opinion or Testifying at Trial
(DE# 116, 11/15/11) is GRANTED in part and DENIED in part. The plaintiff’s police
practices expert, Phillip B. Sweeting, is precluded from rendering an opinion at trial on
the defendant City of Miami Beach’s deliberate indifference to the rights of citizens and
1
The undersigned’s ruling pertains only to Mr. Sweeting’s testimony at trial. The
plaintiff also relies on Mr. Sweeting’s opinions in responding to the defendants’ motions
for summary judgment. See Response (DE# 135 at 14, 12/3/11) (stating that the
“primary usage of the Sweeting Report” is in opposing the summary judgment motions).
Those motions are before Judge Lenard and she may determine that Mr. Sweeting’s
opinions are useful to her in resolving those pending motions.
the existence of a custom and practice of excessive force. Mr. Sweeting is permitted to
testify on the use of force.
BACKGROUND
On November 15, 2011, the defendants filed the instant motion. See
Defendants, Robert Acosta, Andrew Dohler, Douglas Dozier, James Nash, and the City
of Miami Beach’s Motion in Limine to Exclude Plaintiff’s Police Expert from Rendering
Any Opinion or Testifying at Trial (DE# 116, 11/15/11) (hereinafter “Motion”). The
plaintiff filed her response on December 3, 2011. See Plaintiff’s Memorandum of Law in
Opposition to Defendants’ Motion in Limine to Exclude Plaintiff’s Police Expert (DE#
135, 12/3/11) (hereinafter “Response”). The defendants filed their reply on December
15, 2011. See Defendants, Robert Acosta, Andrew Dohler, Douglas Dozier, James
Nash, and the City of Miami Beach’s Reply in Support of Their Motion in Limine to
Exclude Plaintiff’s Police Expert (DE# 142, 12/15/11) (hereinafter “Reply”). This matter
is ripe for consideration.
The defendants seek to preclude Phillip B. Sweeting, the plaintiff’s police
practices expert, from rendering any opinions in this case. See Motion (DE# 116 at 1,
11/15/11). A review of Mr. Sweeting’s expert report shows that he arrived at two
opinions concerning the instant case:
(1) By the City of Miami Beach Police Department’s failure to aggressively
investigate complaints of excessive force by ignoring evidence and
justifying excessive force, they have created an environment where
excessive force is an accepted practice. It is my opinion, within
reasonable probability, that they have deliberate indifference to the
rights of citizens and a custom and practice of excessive force; and
(2) within reasonable probability, that a reasonably well-trained and
2
knowledgeable police officer confronted with similar facts would know or
should have known that the entry into the apartment of Ms. Feliciano’s
apartment [sic] was unlawful, any subsequent search was unlawful and
any use of force would be unlawful and excessive.
See Sweeting Report (DE# 135-2 at 22, 12/3/11) (emphasis in original). The
defendants argue that: “ [Mr.] Sweeting’s expert report is marred by assumptions that
were not supported by the uncontroverted evidence.” Motion (DE# 116 at 1-2, 11/15/11)
(footnote omitted). As such, the defendants seek to exclude Mr. Sweeting from
rendering any opinion or testifying at trial. Id.
STANDARD OF REVIEW
“Federal Rule of Evidence 702, as explained by the Supreme Court in Daubert v.
Merrell Dow Pharmaceuticals, Inc.[, 509 U.S. 579 (1993)] and its progeny, controls
determinations regarding the admissibility of expert testimony.” City of Tuscaloosa v.
Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (footnote and citation
omitted). Under Daubert and Rule 702, the Court serves as a gatekeeper to the
admission of scientific evidence. Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326
F.3d 1333, 1340 (11th Cir. 2003) (citing Daubert, 509 U.S. 579, 589 (1993) and
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)); Rink v.
Cheminova, 400 F.3d 1286, 1291 (11th Cir. 2005). To determine the admissibility of
expert testimony under Rule 702, the Court must ascertain whether the following three
requirements are met:
(1) [T]he 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 by Daubert; and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or specialized expertise, to
understand evidence or to determine a fact in issue.
3
Quiet Technology, 326 F.3d at 1340-41 (citing City of Tuscaloosa v. Harcros Chems.,
Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589) (other citation
omitted). “The burden of establishing qualification, reliability, and helpfulness rests on
the proponent of the expert opinion, whether the proponent is the plaintiff or defendant
in a civil suit, or the government or the accused in a criminal case.” United States v.
Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). The proponent must meet his
or her burden by a preponderance of the evidence. Allison v. McGhan Med. Corp., 184
F.3d 1300, 1306 (11th Cir.1999) (stating that “[t]he burden of laying the proper
foundation for the admission of the expert testimony is on the party offering the expert,
and admissibility must be shown by a preponderance of the evidence.”).
ANALYSIS
The defendants maintain that Mr. Sweeting should be excluded as an expert in
the instant case because:
(1) he is not qualified to testify competently regarding the matters he
intends to address; (2) the methodology by which [Mr.] Sweeting gave a
determination of police practices and use of excessive force is not
sufficiently reliable under the standard established in Daubert; (3) [Mr.]
Sweeting’s testimony will not assist the trier of fact to understand the
evidence or determine a fact in issue, therefore failing the relevance test;
and finally, (4) given the glaring lack of reliability of [Mr.] Sweeting’s
opinion, his testimony should be excluded under Rule 403 because of its
potential to confuse and mislead the jury and thereby prejudice [the
d]efendants.
Motion (DE# 116 at 5, 11/15/11). The first three arguments raised by the defendants fall
under FED .R.EVID . 702. The fourth argument is governed by FED .R.EVID . 403. The
undersigned will address each argument in turn.
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1.
FED .R.EVID . 702 and Daubert
The defendants seek to preclude Mr. Sweeting from testifying as an expert in the
instant case based on all three requirements of Daubert and Rule 702: qualifications,
reliability and assistance to the trier of fact.
a.
Qualification
The first requirement for the admissibility of expert testimony is that the expert is
qualified to testify competently regarding the matters he or she intends to address. City
of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d at 563. Rule 702 permits a person to
qualify as an expert based upon knowledge, skill, experience, training, or education.
Frazier, 387 F.3d at 1260-61. “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 Inv., Inc. v. XL Specialty
Ins. Co., No. 10-62028, 2012 WL 266422, at *6 (S.D. Fla. Jan. 30, 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. (citing Vision
I Homeowners Ass'n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325
(S.D. Fla. 2009) (citations omitted) (internal quotation marks omitted; alteration in
original).
The defendants in the instant case argue that Mr. Sweeting is unqualified to
opine on: (1) the use of excessive force in the instant case and (2) the “knock and talk”
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police practice.2 Motion (DE# 116 at 5-11, 11/15/11). With respect to excessive force,
the defendants note that a necessary component to rendering an opinion on whether
the police officers employed excessive force is an adequate understanding of qualified
immunity under both federal and state statutory immunity: “[s]ince the issues of
qualified immunity under § 1983 and statutory immunity under Fla. Stat. § 768.28(9)(a)
are central to an analysis of excessive force, assault, battery, and IIED [intentional
infliction of emotional distress] claims asserted by [the p]laintiff, an expert offering
opinions on such claims must be sufficiently familiar with the doctrines.” Id. at 6. The
defendants point out that in rendering his opinions on the use of excessive force “[Mr.]
Sweeting did not address the application of qualified immunity, nor did he opine this
doctrine did not apply.” See Motion (DE# 116 at 6, 11/15/11). As to the knock and talk
technique, the defendants argue that Mr. Sweeting is unqualified to render an opinion in
the instant case because he testified that he had not heard of the “knock and talk”
practice. Id. at 10-11.
“[Mr.] Sweeting served in an active law enforcement capacity for over a quarter
century, from 1973 until 1999; during that time frame he worked as a patrolman and
detective from 1973-81, and thereafter in supervisory roles as a sergeant, lieutenant,
captain, deputy chief and Acting Chief of Police for the Boca Raton (Florida) Police
2
A “knock and talk” is an investigative technique used by law enforcement
whereby “officers approach a residence where they believe a suspect is inside or a
crime is allegedly being committed and attempt to have voluntary contact with persons
inside the residence.” United States v. Pupo-Reynaldo, No. 10-20808-CR, 2011 WL
2610219, at *2 n.3 (S.D. Fla. Jun. 6, 2011) (O’Sullivan, M.J.)
6
Department”3 and is certainly qualified to render his opinions concerning police
practices in the instant case. Effective cross-examination will bring to light any
weaknesses in Mr. Sweeting’s opinions. The defendants are free to point out that Mr.
Sweeting failed to take into account the doctrine of qualified immunity and state
statutory immunity in determining that the defendants employed excessive force. See
Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir.
2003) (stating that “[t]he identification of such flaws in generally reliable scientific
evidence is precisely the role of cross-examination”) (citing Daubert, 509 U.S. at 596).
Similarly, the defendants may establish at trial that the “knock and talk” technique is a
widely-used police practice and may attempt to weaken Mr. Sweeting’s credibility as a
police practices expert based on his unfamiliarity with this common technique.
However, Mr. Sweeting’s failure to address qualified immunity under federal law or state
statutory immunity and his lack of knowledge concerning the “knock and talk” technique
do not disqualify him as a police practices expert. See, e.g., Smith v. BMW N. Am., Inc.,
308 F.3d 913, 919 (8th Cir. 2002) (district court abused its discretion in excluding the
testimony of an expert witness qualified in a general field merely because that expert
lacked expertise more specialized and more directly related to the issue at hand).
b.
Reliability
The second admissibility requirement is reliability. Daubert, 509 U.S. at 589.
Reliability is different than believability or persuasiveness, which remains an issue for
the trier of fact. Rink v. Cheminova, Inc., 400 F.3d 1286, 1293 n. 7 (11th Cir. 2005). To
3
Response (DE# 135 at 3, 12/3/11) (footnote omitted)
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evaluate the reliability of scientific expert opinion, courts consider, to the extent
practicable: (1) whether the expert’s theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3) the known or potential
rate of error of the particular scientific technique and (4) whether the technique is
generally accepted in the scientific community. These factors are illustrative, not
exhaustive; not all of them will apply in every case, and in some cases other factors will
be equally important in evaluating the reliability of proffered expert opinion. Frazier, 387
F.3d at 1261-62.
In the instant case, the defendants argue that Mr. Sweeting’s opinions are
unreliable because, inter alia: (1) they are based on summaries of the internal affairs
files, (2) at deposition, Mr. Sweeting admitted to “his lack of any knowledge of police
standards or procedures followed by the City of Miami Beach Police Department when
conducting IA investigations,” (3) Mr. Sweeting failed to ascertain whether the City of
Miami Beach Police Department was accredited by the Commission of Accreditation for
Law Enforcement Agency (CALEA) and (4) Mr. Sweeting failed to ascertain what
discipline, if any, was imposed on officers subject to the IA investigations. Motion (DE#
116 at 14-15, 11/15/11) (footnote omitted).
The undersigned agrees with the defendants that Mr. Sweeting’s opinion that the
City of Miami Beach Police Department exhibited deliberate indifference to the rights of
citizens and exhibited a custom and practice of excessive force is unreliable.4 Mr.
4
Mr. Sweeting’s deliberate indifference opinion relates to the plaintiff’s allegation
that the City of Miami Beach failed to investigate officer misconduct. In her Second
Amended Complaint (DE# 48 at ¶¶ 77-83, 4/22/11), the plaintiff alleges a Monell claim
against the City of Miami Beach (Count V). “A Monell claim is a § 1983 municipal
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Sweeting has failed to ascertain whether any of the officers in the IA cases he reviewed
were disciplined. As the defendants point out: “by testifying he has no idea what
discipline was imposed on the officers in any of the IA cases cited in Plaintiff’s
Complaint - there is no factual basis whatsoever for [Mr.] Sweeting to opine [ ] that
MBPD is remiss in imposing sufficient discipline to deter constitutional violations
discipline.” Motion (DE# 116 at 16, 11/15/11).5 For this reason, the plaintiff has failed to
meet her burden of establishing by a preponderance of the evidence the reliability of
Mr. Sweeting’s opinion on deliberate indifference and the existence of a custom and
practice of excessive force. Accordingly, Mr. Sweeting is precluded from testifying as to
the City of Miami Beach Police Department’s deliberate indifference to the rights of
liability claim.” Foltz v. City of Largo, No. 8:10-cv-759-T-24-EAJ, 2011 WL 1690010, at *
2 n.1 (M.D. Fla. May 3, 2011) (quoting Monell v. New York City Dep’t of Soc. Serv., 436
U.S. 658 (1978)). The plaintiff alleges that “the MBPD Internal Affairs Dept. failed to act
upon the formal complaint from [the plaintiff] relating to the illegal search and assault
that transpired in early September 2006, and failed to investigate the subject event.”
Amended Complaint (DE# 48 at ¶ 79, 4/22/11). The plaintiff further alleges that “[t]his
deliberate indifference to police misconduct evinces the existence of a custom in the
City of Miami Beach to tolerate excessive force, illegal searches and wrongful arrests”
and that “the City of Miami Beach has, within the past decade, compiled a litany of
instances involving the inadequate investigation into allegations of substantial police
misconduct ” Id. at ¶¶ 80-81. The plaintiff concludes that “[t]he failure by the defendant
City to diligently investigate and discipline its officers for official misconduct has created
an atmosphere where the CMB Police Department’s employees believe that such
misconduct constitutes behavior that will be tolerated and will not be sanctioned” and
was “the moving force behind the deprivation of [the plaintiff’s] right to be free from
excessive force.” Id. at ¶¶ 82-83.
5
Of note, the defendants take issue with Mr. Sweeting’s reliance on IA
summaries. Mr. Sweeting’s use of these summaries instead of reading the underlying
documents does not render his opinion unreliable. It goes to his credibility as an expert
and to the weight that should be given to his opinion. If this were the only weakness in
Mr. Sweeting’s study of the City of Miami Beach Police Department’s IA practices, the
undersigned would be inclined to deny the defendants’ motion and allow the defendants
to address this issue on cross-examination.
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citizens and the existence of a custom and practice of excessive force.
The defendants also take issue with Mr. Sweeting’s opinion that “any use of
force would be unlawful and excessive in this case.” Motion (DE# 116 at 17, 11/15/11)
(citation and internal quotation marks omitted). Specifically, the defendants argue that
Mr. Sweeting’s opinion should be excluded because it credits the plaintiff’s recitation of
the events over the defendants’ version. Mr. Sweeting opined that “a reasonably welltrained and knowledgeable police officer confronted with similar facts would know or
should have known that the entry into the apartment of Ms. Feliciano’s apartment [sic]
was unlawful, any subsequent search was unlawful and any use of force would be
unlawful and excessive.” Sweeting Report (DE# 135-2 at 22, 12/3/11) (emphasis in
original). This is not grounds for excluding Mr. Sweeting’s opinion on use of force. “An
expert is . . . permitted to base his opinion on a particular version of the disputed facts
and the weight to be accorded to that opinion is for the jury.” Walker v. Gordon, 46 Fed.
Appx. 691, 695-96 (3d Cir. 2002). In the instant case, there is a marked discrepancy
between the plaintiff’s and the defendants’ version of the events. If the jury believes the
plaintiff, then Mr. Sweeting’s opinions regarding the use of excessive force will likely be
apportioned more weight. If, on the other hand, the jury credits the defendants’
testimony as to what transpired on the date in question, the jury will likely discount Mr.
Sweeting’s opinion. In either case, it is well within the province of the jury to weigh the
credibility of these competing versions. See Rink v. Cheminova, Inc., 400 F.3d 1286,
1293 n. 7 (11th Cir. 2005) (recognizing that believability or persuasiveness remains an
issue for the trier of fact).
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c.
Assistance to the Trier of Fact
The third requirement for admissibility is that the expert testimony must assist the
trier of fact. “[E]xpert testimony is admissible if it concerns matters that are beyond the
understanding of the average lay person . . . . Proffered expert testimony generally will
not help the trier of fact when it offers nothing more than what lawyers for the parties
can argue in closing arguments.” Frazier, 387 F.3d at 1262-63. With respect to this
factor, the defendants argue that “[d]ue to the factual and analytical gaps upon which
[Mr.] Sweeting’s opinion is predicated, his opinion is merely conclusory and will not
assist the trier of fact to understand the evidence or determine an issue of fact.” Motion
(DE# 116 at 18, 11/15/11).
The undersigned agrees with the defendants that Mr. Sweeting’s opinion on the
subject of deliberate indifference and the existence of a custom and practice of
excessive force will not assist the trier of fact because the undersigned has already
determined that this opinion is unreliable. However, Mr. Sweeting’s opinion on the use
of force in the instant case would assist a jury in understanding or determining a fact at
issue. See White v. Gerardot, No. 1:05CV-382, 2008 WL 4372019, at *5 (N.D. Ind.
Sept. 23, 2008) (finding “little doubt that [the plaintiff’s law enforcement procedure
expert]'s testimony about proper police procedure and the use of force under the
circumstances [the officer] encountered the night of the shooting would assist the jury in
determining whether [the officer]'s actions were objectively reasonable.”); Bates v. King
County, No. C05-1348RSM, 2007 WL 1412889, at *3 (W.D. Wash. May 9, 2007)
(observing that “[t]he appropriate response by a police officer to a person resisting
arrest is not necessarily common knowledge.”). Accordingly, Mr. Sweeting should be
11
permitted to testify at trial concerning the use of force.
2.
FED .R.EVID . 403
The defendants further argue that “[e]ven if [Mr.] Sweeting’s opinions are
otherwise admissible . . . the Federal Rules provide for the exclusion of such evidence
because the ‘probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.’” Motion (DE# 116 at 18,
11/15/11) (citing FED .R.EVID . 403). As with any other testimony, expert testimony that is
reliable and relevant may be challenged under Rule 403 on the grounds of prejudice,
confusion or waste of time. FED .R.EVID . 403; see also Frazier, 387 F.3d at 1263 (stating
that “sometimes expert opinions that otherwise meet the admissibility requirements [of
Rule 702] may still be excluded by applying Rule 403.”) (footnote omitted). “The
Supreme Court recognized in Daubert the intricate role of Rule 403 in an expert
testimony admissibility analysis when it noted that expert testimony could be ‘both
powerful and quite misleading because of the difficulty in evaluating it.’” Allison v.
McGhan Medical Corp., 184 F.3d 1300, 1310 (11th Cir.1999) (quoting Daubert, 509
U.S. at 595). The undersigned finds no grounds under Rule 403 for excluding Mr.
Sweeting’s remaining6 opinion on the use of force in the instant case. Here, there is no
danger of unfair prejudice in allowing Mr. Sweeting to testify on this subject because the
defendants may through effective cross-examination expose any weaknesses in Mr.
Sweeting’s opinion.
6
The undersigned has already determined that Mr. Sweeting’s opinion on
deliberate indifference to the rights of citizens and the existence of a custom and
practice of excessive force is not properly supported by sufficient facts and he is
therefore precluded from rendering this opinion at trial. See discussion supra.
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CONCLUSION
Based on the foregoing, the Court concludes that Mr. Sweeting meets all three
prongs of Rule 702 and may testify as to the use of force at trial. Mr. Sweeting, may
not, however, opine as to whether defendant City of Miami Beach exhibited a deliberate
indifference to the rights of citizens and exhibited a custom and practice of excessive
force . The plaintiff has failed to show by a preponderance of the evidence that Mr.
Sweeting’s testimony in this area is reliable or would assist the trier of fact.
DONE AND ORDERED in Chambers at Miami, Florida this 22nd day of
February, 2012.
________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
United States District Judge Lenard
All counsel of record
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