Ajibade et al v. Harris et al

Filing 286

ORDER granting re 184 Motion in Limine. Signed by Magistrate Judge James E. Graham on 1/15/19. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
SOLOMAN OLUDAMISI AJIBADE
and ADENIKE HANNAH AJIBADE,
as natural parents of Mathew Ajibade,
and THE ESTATE OF MATHEW
AJIBADE and CHRIS OLADAPO,
its Executor,
Plaintiffs,
v.

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JOHN WILCHER, in his official
capacity as Chatham County Sheriff,
et al.,
Defendants.

CV416-082

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ORDER
This case arises from the January 2015 death of Mathew Ajibade
while in custody at the Chatham County Detention Center. Doc. 21
(Amended Complaint).1 He was arrested “in the throes of an episode of
mental illness,” and the police “were informed about his mental state and
his need for prescription medicine, and were even given the pill bottle at
the arrest to give to [him].” Id. at ¶ 2. At the CCDC, however, Mathew

For purposes of this brief synopsis only, the facts alleged in the Amended Complaint
are accepted as true.
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was subjected to excessive force.

Id. at ¶ 3.

No medical care was

administered, and he died as a result of his injuries. Id. at ¶¶ 4-5.
This case has progressed through discovery and several defendants
have moved for summary judgment. See docs. 183, 189, 190, 191, 192, &
193. Defendant Sheriff Wilcher seeks to exclude testimony from one of
plaintiffs’ expert witnesses. Doc. 184. The expert, J.P. Gingras, is a
certified public accountant who plaintiffs offer to testify on “decedent’s
economic loss of wages, loss and benefits [sic] and loss of household
services over an assumed projected lifespan, with constant uninterrupted
work at wage levels up until retirement at the projected age of 67.” Id.
at 1. Wilcher objects that such testimony is purely speculative and fails
to satisfy the requirements of Fed. R. Evid. 702 and Daubert v. Merrill
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Id.
Plaintiffs respond that the motion should be denied summarily as
“[t]he Sheriff did not put in any evidence whatsoever”; neither Gingras’
expert report, nor his CV, nor any deposition testimony are offered in
support of defendant’s motion. Doc. 220 at 1. If the Court does not accept
that invitation, they argue that the motion should be denied on the merits
because “Gingras’s testimony is routinely admitted in court,” and the
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Sheriff’s objections address the weight of Gingras’ testimony, not its
admissibility. Id. at 1-2.
The parties’ briefs are not up to the standards this Court expects.
As plaintiffs point out, Wilcher has not provided the Court with anything
more than a cursory summary of Gingras’ proffered testimony.

He

describes the “conjectural assumptions” of a “report” without attaching
or citing to that report. See doc. 184 at 2. He has not even bothered to
include full case citations.

See id. at 2-3 (citing “United States v.

Downing, 753 F. 2nd 1224,” “Liu v. Korean Air Lines, 1993 WL 478343,”
and “JMJ Enterprises, Inc. v. Via Veneto Italian Ice, Inc., 1998 WL
175888”). He ultimately abandons even those abbreviated citations, and
resorts to a (mistaken) cross-reference.

See id. at 3 (citing to “JMJ

Enterprises, Supra, Page 4,” on page 3 of the brief; page 4 includes
nothing but counsels’ signatures).2

In the absence of any specific

Even assuming that “Page 4” refers to the cited case, and not the “supra” reference,
it appears to be a mistake. Page * 4 of the cited, unpublished, out-of-district and circuit case, includes a discussion of Pennsylvania law on damages, the unremarkable
determination that “[a]bsent a statutory exception, litigants must pay their own
attorneys’ fees,” and a paragraph recitation of the factual background of the motion to
exclude expert testimony on lost profits. See JMJ Enters., Inc. v. Via Veneto Italian
Ice, Inc., 1998 WL 175888 at * 4 (E.D. Pa. April 15, 1998). None of those discussions
bear even tangential relation to the proposition that an expert’s “assumptions [must
be] grounded in facts and not merely conjecture or surmises.” Doc. 184 at 3. The
Court will pass over in (relative) silence the grammatical idiosyncrasy of the sentence
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indication of Gingras’ proposed testimony, Wilcher’s brief does not
provide much of a showing of its inadequacy under Rule 702 and
Daubert.3 See doc. 184 at 2-3.
Before plaintiffs bask in the glow of schadenfreude, their own
offering is only marginally better. To their credit, they include full case
citations. The cases they cite, however, are not helpful. Judge Posner’s
ruminations, witty as they may be, on the quality of an appellate brief do
not amount to a wholesale rejection of short briefs. See Cent. States, Se.
& Sw. Areas Health & Welfare Fund v. Lewis, 745 F.3d 283, 286 (7th Cir.
2014) (criticizing an appellate brief of “eight and a half pages,” of which
“the first seven and a half pages [were] simply a recitation” of factual and
procedural background). The Court agrees that Wilcher’s brief is not a
paragon, but, as discussed below, its quality is ultimately beside the
point. Plaintiffs’ reference to a recent case in which Gingras’ testimony
was admitted is similarly unhelpful. See doc. 220 at 2. The Northern

itself.
Even the limited description provided in the brief is not obviously pertinent to the
admissibility of Gingras’ testimony. As discussed below, the value of attorneys’ “ipse
dixit” on such matters is of dubious value, at best. See infra. at 8.
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District of Georgia merely cited the applicable legal standards and
concluded, without any substantive discussion, that the movant’s
“concerns . . . can be addressed through cross-examination at trial and
through the testimony of their [sic] rebuttal expert . . . .” Woodard v.
Dempsey, 2016 WL 4079713 at * 2-3 (N.D. Ga. Aug. 1, 2016). Plaintiffs
surely do not contend either that because Gingras’ testimony was
admissible in one case, it must be admissible here, or that because crossexamination and counter-testimony were adequate there, they must be
adequate here. Finally, although plaintiffs lament that Wilcher’s failure
to proffer “any evidence whatsoever” leaves the Court with “no basis to
rule on the admissibility of Gingras’s testimony – other than lawyer
argument,” they do no more than curse the proverbial darkness.
Despite the parties’ efforts, the question presented by the motion is
ultimately simple.4 “[F]or expert testimony to be admissible under Rule

Plaintiffs do not dispute Wilcher’s implicit assumption that Gingras’ testimony is
expert testimony, within the meaning of Fed. R. Evid. 702, Daubert, and its progeny.
See generally doc. 220. In different circumstances, the Eleventh Circuit has recognized
that “accounting expertise is among the sorts of technical and specialized expertise the
use of which is governed by Rule 702 and Daubert.” City of Tuscaloosa v. Harcros
Chemicals, Inc., 158 F.3d 548, 563 n. 17 (11th Cir. 1998). Since the parties do not
dispute it, the Court assumes that Rule 702 and Daubert provide the applicable
standards.
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702 of the Federal Rules of Evidence, the proponent of the testimony
must show that: (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; 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.” Maiz v. Virani, 253 F.3d 641, 665 (11th
Cir. 2001) (citation omitted). If the statement of the standard left any
doubt as to the location of the burden of proof, it is clear 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.’”5 Cook ex rel. Estate of Tessier
v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1107 (11th Cir. 2005)
(quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.
1999)); see also Jones v. Anderson, 2018 WL 2717221 at * 5 (S.D. Ga. June
6, 2018) (Baker, J.) (“The proponent of an expert opinion bears the burden
of

establishing

qualification,

reliability,

and

helpfulness

by

a

Plaintiffs are aware of where the burden lies. They correctly state the principle in
their brief seeking the exclusion of a defense expert’s testimony. See doc. 199 at 2.
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preponderance of the evidence.”). Indeed, “[w]here the [foundational]
burden has not been satisfied, Rule 702 precludes expert testimony,” and
the burden “cannot be satisfied by conclusory arguments and should not
be taken lightly.” Jones, 2018 WL 2717221 at * 6; see also College Park
Holdings, LLC v. Racetrac Petroleum, Inc., 239 F. Supp. 2d 1334, 1344
(N.D. Ga. 2002) (citing, inter alia, McCorvey v. Baxter Healthcare Corp.,
298 F.3d 1253 (11th Cir. 2002)) (“[T]he burden of establishing the
standards for admissibility rests with the proffering party.”).
The closest plaintiffs come to an argument in favor of the
admissibility of Gingras’ testimony is their reference to a District of
Colorado case, which they contend supports the proposition that criticism
of an accountant’s “‘assumptions and conclusions’ . . . ‘go to the weight
rather than the admissibility’ of an opinion.” Doc. 220 at 2 (quoting
Jaffrey v. PorterCare Adventist Health Sys., 2017 WL 5624572 at * 5 (D.
Colo. Nov. 22, 2017)). Jaffrey may well accurately represent the law on
such challenges, but it does nothing to alleviate the initial burden of
proof. It implies, moreover, that both the proponents and opponents of
the expert testimony proffered evidence. See id. at * 1 (noting that, in
addition to the original motion, response and reply briefs were filed and
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an evidentiary hearing was held).

Nothing in Jaffrey’s analysis,

therefore, undermines the conclusion that, in this circuit at least,
proponents – here the plaintiffs – bear the burden of establishing the
foundations for the admissibility of expert testimony.

As discussed

below, it is the location of that burden that determines the outcome here.
As plaintiffs rightly point out, there is no evidence bearing on the
foundations of Gingras’ testimony. Doc. 220 at 1. Their inference based
on that total lack – that Wilcher’s motion should be summarily denied,
id. at 2 – is exactly backwards. It is plaintiffs’ burden to establish the
foundations required by the Federal Rules and Daubert. They have not
borne that burden; not only is there no preponderance of the evidence on
those foundations, there is no evidence at all.6 The briefs themselves are
not evidence. After all, “[t]he ipse dixit of [a] lawyer is no better than the
ipse dixit of the expert in establishing the foundation for admissibility of
expert testimony.” Jones, 2018 WL 2717221 at * 10. Given the utter lack

The Court concedes that Gingras’ testimony, or discussion of its foundation, might
be included elsewhere in the record. If so, neither party has pointed to it. It is simply
not the Court’s responsibility to trawl through a record containing hundreds of filings
comprising thousands of pages in the hope that evidence will turn up. See Jones, 2018
WL 2717221 at * 10 (cites omitted) (“[I]t is not the Court’s burden to sift through the
record and cobble together support for [a proposed expert’s] opinions.”)
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of foundation for Gingras’ testimony, defendant’s motion must be, and is,
GRANTED.7 Doc. 184.
SO ORDERED, this 15th

day of January, 2019.

The Court might have convened a Daubert hearing, which would provide the
plaintiffs an additional opportunity to present foundational evidence for Gingras’
testimony. However, such hearings are not automatic. See Cook, 402 F.3d at 1113.
Given that plaintiffs have not even attempted to satisfy their evidentiary burden, the
Court sees no reason to hold a hearing at this time. The Court might also postpone
exclusion of the testimony, to allow more detailed briefing on the issue. As noted above,
see supra. n. 9, it seems clear that plaintiffs are aware that the burden of proof rests
with the proponent of expert testimony. The Court cannot fathom why they have
ignored the implications of that burden to this motion. Nevertheless, rulings on
motions in limine are a prophylactic against the introduction of damaging evidence
that could “‘irretrievably affect the fairness of the trial.” Benson v. Facemeyer, 2017
WL 1400558 at * 1 (N.D. Ga. April 19, 2017) (quoting Soto v. Geico Indem. Co., 2014
WL 3644247 at * 1 (M.D. Fla. July 21, 2014)). They are granted “‘only if the evidence
in question is clearly inadmissible,’” and any such ruling is only provisional, subject to
reversal by the trial judge. Id. (quoting Wilson v. Pepsi Bottling Grp., Inc., 609 F. Supp.
2d 1350, 1359 (N.D. Ga. 2009)) (citing Ohler v. United States, 529 U.S. 753, 758 n. 3
(2000) (“[I]n limine rulings are not binding on the trial judge . . . .”)). It is clear enough
that plaintiffs have not borne their burden of establishing the foundations of Gingras’
testimony, but, if they believe that they can supply that foundation for all or a portion
of the testimony they wish to introduce, this Order does not preclude them from trying.
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