FLINT v. BOARD OF REGENTS FOR THE UNIVERSITY SYSTEM OF GEORGIA

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).

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

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