Filing 39

ORDER denying 24 Motion exclude expert testimonyexclude expert testimony; denying in part and granting in part 31 Motion exclude expert testimonyexclude expert testimony. Ordered by US DISTRICT JUDGE CLAY D. LAND on 1/8/2017 (tlf).

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION SHAMANIQUE FLINT, as the surviving parent and administrator of the Estate of Zikarious Flint, * * * Plaintiff, CASE NO. 4:16-CV-159 (CDL) * vs. * OFFICER BENJAMIN SCOTT, * Defendant. O R D E R Each party seeks to exclude testimony party’s expert (ECF Nos. 24 & 31). from the other For the reasons explained in the remainder of this Order, those motions are denied to the extent described below.1 Both Plaintiff’s excessive parties use force have of identified force when he expert shot “use opines and of force” that killed experts. Defendant used Plaintiff’s son. Defendant’s expert opines that his actions were reasonable under the circumstances and that he did not use excessive force. In the Eleventh Circuit, “[t]estimony by [use of force] experts is generally admissible as long as the jury is properly informed that the expert is testifying 1 only ‘regarding prevailing The parties filed these motions in conjunction with Defendant’s motion for summary judgment. The Court has denied that motion without regard to the parties’ expert testimony (ECF No. 38). The Court today rules on the motions to exclude expert testimony with an eye toward trial. 1 standards in the field of law enforcement.’” Ayers v. Harrison, 650 F. App’x 709, 719 (11th Cir. 2016) (per curiam) (quoting Samples v. 1990)). expert City of Atlanta, 916 F.2d 1549, 1551 (11th Cir. Therefore, no blanket prohibition against “use of force testimony” has been adopted in this Circuit. To determine whether the specific opinions of the parties’ experts are otherwise inadmissible, the Court analyzes the proffered testimony under Federal Rule of Evidence 702. Under Rule 702, the Court serves as the gatekeeper “to keep out irrelevant or unreliable expert testimony.” United States v. Ala. Power Co., 730 F.3d 1278, 1282 (11th Cir. 2013) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145 (1999) and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)). “This gatekeeping role, however, ‘is not intended to supplant the adversary system or the role of the jury: vigorous crossexamination, instruction presentation on the burden of contrary of proof evidence, are the and careful traditional and appropriate means of attacking shaky but admissible evidence.’” Id. at 1282 (quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311-12 (11th Cir. 1999)). In evaluating the admissibility of expert testimony under Rule 702, the Court must consider whether “(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert 2 reaches his conclusions is sufficiently reliable . . .; and (3) the testimony assists the trier of fact . . . to understand the evidence or to determine a fact in issue.” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). basic requirements of qualification, These reliability, and helpfulness “remain distinct concepts” not to be conflated. Id. The Court’s goal is to ensure that an expert “‘employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’” Id. (quoting Kumho Tire, 526 U.S. at 152). To allow the testimony to be considered by the jury, the Court must find that “‘it is properly grounded, well-reasoned, and not speculative . . . .’” Id. at 1262 (quoting Fed. R. Evid. 702 advisory comm. note (2000 amends)). I. Plaintiff’s Motion to Exclude Defendant’s Expert Defendant identified Scott Johnson, a retired Georgia State Patrol lieutenant experience, as with his twenty expert years witness. seventeen of Johnson’s opinions. of law Plaintiff enforcement objects to These objections follow the same formula--attack the opinions as unsupported by the factual record, criticize the opinions as lacking explanation analysis, and paint the opinions as “legal conclusions.” Court finds these objections unpersuasive. Johnson’s or The report indicates that he reviewed and relied on all the materials in 3 the Georgia Bureau of Investigation (“GBI”) report regarding the shooting to form his opinions and that he visited the scene and interviewed Defendant. leading up to the His report then describes the events shooting in detail. See Pl.’s Mot. to Exclude, Johnson Expert Report 5-6, ECF No. 31-1 [hereinafter Johnson Report]. Plaintiff’s disagreement with Johnson’s interpretation of the facts from these sources does not make Johnson’s opinion factually unsupported. The Court is satisfied that Johnson’s opinions are supported by a sufficient factual foundation. The Court also rejects Plaintiff’s suggestion that Johnson’s opinions must be excluded because his analysis is not sufficiently detailed. opinions, which he Johnson clearly states the basis of his formulated from his “training, education, knowledge, experience, and professional qualifications in police operations, practices, and procedures.” why he provides believes his professional “analytical Defendant’s opinions certainty.” gap” between conduct “within Id. at He adequately explains was a reasonable 5. Johnson’s justifies exclusion of the testimony. appropriate The facts 4 and degree of finds opinions he no that His testimony is not of the “I’m an expert, just trust me” variety. explained the basis for his opinions. Court and He has adequately Johnson’s opinions are also not inadmissible simply because they may embrace an ultimate issue in the case. Evid. 704(a). Police officers must abide See Fed. R. by the Fourth Amendment’s “reasonableness” standard, and a use of force expert like Johnson may opine as to whether he thinks Defendant’s conduct conformed to that standard. Plaintiff also attacks the following specific aspects of Johnson’s opinions. position of Johnson opines that (1) Defendant was in a disadvantage during the pursuit; (2) Defendant’s decision to hit Plaintiff’s son with his vehicle was reasonable; and (3) the less-lethal uses of force employed by Defendant and his fellow officer Plaintiff argues were reasonable. that unhelpful to the jury. these Johnson Report opinions are at 5-6. irrelevant The Court disagrees. and These opinions explain what alternative steps were taken by the officers before using deadly force, how Plaintiff’s son reacted, and how a reasonable officer would have perceived the fleeing suspect’s conduct before the shooting. circumstances” deadly force. relevant Defendant’s later decision to use opinions: (1) This testimony is admissible. Plaintiff Defendant to These steps form the “totality of could also not objects to “tactically the following engage” Plaintiff’s son when Defendant was in his vehicle; (2) Defendant had a difficult duty to protect bystanders from a fleeing, armed suspect; and (3) 5 Plaintiff’s son was a threat to officers and bystanders during the pursuit. based on Id. Plaintiff argues that these opinions are not specialized unnecessary. knowledge and should be excluded as But Johnson’s report indicates that his opinions are based on his decades-long career in law enforcement and his thousands of layperson is hours not of specialized familiar with training. law The enforcement average tactics, the issues that law enforcement officers must consider when pursuing a suspect, the factors an officer must consider before using deadly force, or the general standards governing police conduct. These opinions expertise and are certainly could assist based the Defendant’s conduct was reasonable. Johnson does make a on jury Johnson’s in specialized determining whether They are admissible. couple of observations about Defendant’s predisposition and emotional state that should be excluded. As part of the investigation, the GBI conducted a recorded walk through of the incident with Defendant. reviewed this recorded walk through, along with Johnson Defendant’s training and personnel file, and opined that Defendant had no predisposition to shoot Plaintiff’s son and that Defendant was genuinely emotional when recounting the incident. Id. at 6. These opinions are not helpful to the jury and do not require specialized knowledge such that expert testimony is necessary or appropriate. While Johnson may 6 opine about what Defendant encountered, how a reasonable officer would have reacted, and whether Defendant’s conduct conformed to standard police practices, he may not opine on Defendant’s credibility through expert testimony. Further, whether Defendant was predisposed to fire his weapon before the incident or was genuinely emotional after the incident does not of a jury the determine weapon was whether Defendant’s actual reasonable. Therefore, the Court excludes these opinions. II. firing help objectively Defendant’s Motion to Exclude Plaintiff’s Expert Defendant expert opinions seeks because in a to exclude Plaintiff timely did the not manner. testimony of adequately During Plaintiff’s disclose discovery, his Plaintiff disclosed Byron Hickey as a use of force expert pursuant to Federal Rule of Civil Procedure 26(a)(2). Columbus Police experience. Department officer Hickey is a retired with thirty years of Plaintiff provided a cursory report that listed Hickey’s qualifications, the materials he would rely on, and a summary of his expected opinions. This pages. See Def.’s Mot. to Exclude Pl.’s Expert Ex. 1, Pl.’s Disclosure of Expert Test., ECF No. 24-1. report totaled two After the discovery period ended, Defendant moved to exclude the report as lacking any factual supplemented basis the Procedure 26(e). or expert analysis. report under In response, Federal Rule Plaintiff of Civil Hickey’s “supplemented” report totals fifteen 7 pages. Pl.’s Resp. to Def.’s Mot to Exclude Ex. A, Hickey Expert Report, ECF No. 30-1. Plaintiff does not argue that new information justifies the supplemental disclosure. Instead, the supplement appears to be an attempt by Plaintiff to bolster the initial report. Defendant objects to the supplement because it was not provided within the discovery period. A failure to timely supplement requires exclusion unless the failure is “justified or harmless.” Fed. R. Civ. P. 37(c). Supplementing an expert report after the close of discovery can be prejudicial if it prevents the opposing party from deposing the expert on the supplemental opinions or if it affects the opposing party’s ability to have his own expert opine as to the supplemental opinions. The Court finds that Hickey’s initial report, while admittedly cursory, provided the essence of his opinions. trial and And if Defendant is permitted to depose Hickey before if Defendant’s expert is allowed to opine about matters provided in Hickey’s supplemental report, then Defendant will not be harmed by the late supplementation of his report. Accordingly, Defendant’s motion to exclude Hickey’s supplemental report and opinions is denied. But Defendant shall be permitted to depose Hickey prior to trial, Defendant’s expert may offer testimony regarding Hickey’s opinions contained in Hickey’s supplemental report to the extent such testimony is otherwise admissible, and Defendant may move prior to trial to exclude any 8 of Hickey’s opinions if grounds exist for exclusion under Rule 702. CONCLUSION For the reasons explained above, Defendant’s motion to exclude Plaintiff’s expert testimony (ECF No. 24) is denied, and Plaintiff’s motion to exclude Defendant’s expert testimony (ECF No. 31) is denied except as specifically noted in this Order. IT IS SO ORDERED, this 8th day of January, 2018. S/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 9

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