FLINT v. BOARD OF REGENTS FOR THE UNIVERSITY SYSTEM OF GEORGIA
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).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
SHAMANIQUE FLINT, as the
surviving parent and
administrator of the Estate of
CASE NO. 4:16-CV-159 (CDL)
OFFICER BENJAMIN SCOTT,
O R D E R
party’s expert (ECF Nos. 24 & 31).
For the reasons explained in
the remainder of this Order, those motions are denied to the
extent described below.1
Defendant’s expert opines that his actions were reasonable under
the circumstances and that he did not use excessive force.
the Eleventh Circuit, “[t]estimony by [use of force] experts is
generally admissible as long as the jury is properly informed
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
standards in the field of law enforcement.’”
Ayers v. Harrison,
650 F. App’x 709, 719 (11th Cir. 2016) (per curiam) (quoting
Therefore, no blanket prohibition against “use of force
determine whether the specific opinions of the parties’ experts
testimony under Federal Rule of Evidence 702.
Under Rule 702, the Court serves as the gatekeeper “to keep
out irrelevant or unreliable expert testimony.”
v. Ala. Power Co., 730 F.3d 1278, 1282 (11th Cir. 2013) (citing
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,
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
intends to address; (2) the methodology by which the expert
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).
helpfulness “remain distinct concepts” not to be conflated.
The Court’s goal is to ensure that an expert “‘employs in the
characterizes the practice of an expert in the relevant field.’”
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)).
Plaintiff’s Motion to Exclude Defendant’s Expert
Defendant identified Scott Johnson, a retired Georgia State
seventeen of Johnson’s opinions.
These objections follow the
same formula--attack the opinions as unsupported by the factual
analysis, and paint the opinions as “legal conclusions.”
indicates that he reviewed and relied on all the materials in
the Georgia Bureau of Investigation (“GBI”) report regarding the
shooting to form his opinions and that he visited the scene and
His report then describes the events
Exclude, Johnson Expert Report 5-6, ECF No. 31-1 [hereinafter
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
Johnson’s opinions must be excluded because his analysis is not
Johnson clearly states the basis of his
knowledge, experience, and professional qualifications in police
operations, practices, and procedures.”
He adequately explains
justifies exclusion of the testimony.
His testimony is not of
the “I’m an expert, just trust me” variety.
explained the basis for his opinions.
He has adequately
Johnson’s opinions are also not inadmissible simply because
they may embrace an ultimate issue in the case.
See Fed. R.
Amendment’s “reasonableness” standard, and a use of force expert
conduct conformed to that standard.
Plaintiff also attacks the following specific aspects of
Johnson opines that (1) Defendant was in a
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
unhelpful to the jury.
The Court disagrees.
explain what alternative steps were taken by the officers before
reasonable officer would have perceived the fleeing suspect’s
conduct before the shooting.
This testimony is admissible.
These steps form the “totality of
Defendant was in his vehicle; (2) Defendant had a difficult duty
to protect bystanders from a fleeing, armed suspect; and (3)
Plaintiff’s son was a threat to officers and bystanders during
Plaintiff argues that these opinions are not
But Johnson’s report indicates that his opinions
are based on his decades-long career in law enforcement and his
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.
Defendant’s conduct was reasonable.
They are admissible.
Defendant’s predisposition and emotional state that should be
As part of the investigation, the GBI conducted a
recorded walk through of the incident with Defendant.
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
encountered, how a reasonable officer would have reacted, and
practices, he may not opine on Defendant’s credibility through
Further, whether Defendant was predisposed to
fire his weapon before the incident or was genuinely emotional
Therefore, the Court excludes these opinions.
Defendant’s Motion to Exclude Plaintiff’s Expert
disclosed Byron Hickey as a use of force expert pursuant to
Federal Rule of Civil Procedure 26(a)(2).
Hickey is a retired
Plaintiff provided a cursory report that listed
Hickey’s qualifications, the materials he would rely on, and a
See Def.’s Mot. to Exclude Pl.’s Expert Ex. 1, Pl.’s
Disclosure of Expert Test., ECF No. 24-1.
After the discovery
period ended, Defendant moved to exclude the report as lacking
Hickey’s “supplemented” report totals fifteen
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.
supplement appears to be an attempt by Plaintiff to bolster the
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
The Court finds that Hickey’s initial
report, while admittedly cursory, provided the essence of his
And if Defendant is permitted to depose Hickey before
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
supplemental report to the extent such testimony is otherwise
admissible, and Defendant may move prior to trial to exclude any
of Hickey’s opinions if grounds exist for exclusion under Rule
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
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