Hill v. City Of Chicago et al

Filing 526

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 6/20/2011:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HAROLD HILL,

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Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

Case No. 06 C 6772

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Defendants have moved pursuant to Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to preclude
the expert testimony of Drs. Charles Michael Bowers and Constantine Karazulas. For the
following reasons, the Court denies Defendants’ motions.
BACKGROUND
Plaintiff Harold Hill alleges that Defendants Kenneth Boudreau and John Halloran
coercively interrogated him resulting in his false confession in connection with the 1990 murder
of Kathy Morgan in violation of his Fifth Amendment right against self-incrimination. At Hill’s
criminal trial, the State presented the testimony of forensic odontologist, Dr. John Kenny, who
testified about the bite marks on the victim’s breast and a “hickey” mark on the victim’s neck.
In particular, Dr. Kenny testified that the hickey mark was consistent with the general size and
shape of Hill’s mouth and that the bite mark was inflicted by co-defendant Dan Young’s
dentition. Hill’s defense counsel did not present an opposing expert at the criminal trial.
After Hill was convicted, he filed a post-conviction petition pursuant to the Illinois PostConviction Hearing Act, 725 ILCS 5/122-1, et seq. During Hill’s post-conviction proceedings,

Drs. Karazulas and Bowers re-analyzed the bite mark evidence that had been presented at trial.
Although Hill asserts that if Defendants agree not to reference the bite mark evidence, he will
not need to delve into this topic at trial, Defendants nevertheless maintain that they intend to
introduce bite mark evidence and seek to exclude Dr. Karazulas’ and Bowers’ testimony under
Daubert and Rule 702.
LEGAL STANDARD
“The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and
the Supreme Court’s opinion in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993).” Lewis v. Citgo Petroleum Corp., 561 F.3d 698, 705 (7th Cir.
2009). “The Federal Rules of Evidence define an ‘expert’ as a person who possesses
‘specialized knowledge’ due to his ‘skill, experience, training, or education’ that ‘will assist the
trier of fact to understand the evidence or to determine a fact in issue.’” Banister v. Burton, 636
F.3d 828, 831 (7th Cir. 2011) (quoting Fed.R.Evid. 702). Rule 702 also requires that: “(1) the
testimony must be based upon sufficient facts or data; (2) it must be the product of reliable
principles and methods; and (3) the witness must have applied the principles and methods
reliably to the facts of the case.” Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874,
881 (7th Cir. 2011) (quoting Fed.R.Evid. 702).
Under the expert-testimony framework, federal courts perform the gatekeeping function
of determining prior to admission whether the expert testimony is both relevant and reliable. See
Banister, 636 F.3d at 831; United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009). In
particular, federal courts employ a three-part analysis in making this determination: (1) the
expert must be qualified as an expert by knowledge, skill, experience, training, or education; (2)

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the expert’s reasoning or methodology underlying his testimony must be scientifically reliable;
and (3) the expert testimony must assist the trier of fact in understanding the evidence or to
determine a factual issue. See Myers v. Illinois Central R. Co., 629 F.3d 639, 644 (7th Cir.
2010). “The goal of Daubert is to assure that experts employ the same ‘intellectual rigor’ in
their courtroom testimony as would be employed by an expert in the relevant field.” Jenkins v.
Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152, 119 S.Ct. 1167 (1999)).
An expert may be qualified to render opinions based on experience alone. See Metavante
Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (“An expert’s testimony is not
unreliable simply because it is founded on his experience rather than on data”). “In certain
fields, experience is the predominant, if not the sole basis for a great deal of reliable expert
testimony.” Advisory Committee Notes to Rule 702. “[W]hile extensive academic and practical
expertise in an area is certainly sufficient to qualify a potential witness as an expert, Rule 702
specifically contemplates the admission of testimony by experts whose knowledge is based on
experience.” Trustees of Chicago Painters & Decorators Pension, Health & Welfare v. Royal
Int’l Drywall & Decorating, Inc., 493 F.3d 782, 787-88 (7th Cir. 2007) (citations and quotations
omitted). As such, courts “consider a proposed expert’s full range of practical experience as
well as academic or technical training when determining whether that expert is qualified to
render an opinion in a given area.” Id. Finally, “[t]he proponent of the expert bears the burden
of demonstrating that the expert’s testimony would satisfy the Daubert standard.” Lewis, 561
F.3d at 705.

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ANALYSIS
I.

Relevancy
Defendants first argue that Dr. Karazulas’ and Bowers’ opinions are not relevant,

namely, that their opinions would not assist the jury in determining any facts at issue. As the
Daubert Court teaches, Rule 702 “requires that the evidence or testimony ‘assist the trier of fact
to understand the evidence or to determine a fact in issue.’ This condition goes primarily to
relevance.” Id. at 591 (quoting Fed.R.Evid. 702). In other words, “Daubert instructs that expert
testimony must be relevant and factually linked to the case in order to meet Rule 702’s
‘helpfulness’ requirement.” United States v. Gallardo, 497 F.3d 727, 733 (7th Cir. 2007).
“Expert testimony which does not relate to an issue in the case is not relevant, and ergo, not
helpful.” See Daubert, 509 U.S. at 591 (citation omitted); see also Porter v. Whitehall Labs.,
Inc., 9 F.3d 607, 613 (7th Cir. 1993).
Before proceeding to Defendants’ arguments, it is helpful to note the bite mark evidence
Defendants intend to introduce at trial. Although Defendants do not articulate exactly what Dr.
Kenny will testify about at trial, they have listed him as a may-call witness. In their motions to
bar Drs. Bowers’ and Karazulas’ testimony, Defendants explain that at Hill’s criminal trial, Dr.
Kenny, a forensic odontologist and pediatric dentist, testified that he had analyzed the bite marks
on Morgan’s breast and concluded that it was inflicted by Young’s dentition. Dr. Kenny further
opined at Hill’s criminal trial that the hickey mark on Morgan’s neck was consistent with the
general size and shape of Hill’s mouth. Defendants also seek to introduce into evidence Dr.
Kenny’s report to Dr. Stein regarding the Morgan homicide, Dr. Kenny’s preliminary report to
Assistant State’s Attorney Diane Dickett, Dr. Kinney’s final report to Assistant State’s Attorney

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Dickett, and other materials related to Dr. Kinney’s bite mark opinion, including photographs
and video. Defendants have yet to provide these documents to the Court, although Hill has
provided the Court with the preliminary report to Assistant State’s Attorney Dickett and a billing
document.
In response to Defendants’ Daubert motions, Hill has demonstrated that Drs. Bowers’
and Karazulas’ testimony is highly relevant to the issues in this lawsuit if Dr. Kenny testifies or
if Defendants offer bite mark evidence as part of their defense. See Lewis, 561 F.3d at 705.
More specifically, Drs. Karazulas’ and Bowers’ testimony will assist the trier of fact in
determining whether Dr. Kenny’s opinions concerning the bite mark evidence are flawed. Drs.
Bowers and Karazulas, for example, will testify that Morgan’s body was exposed to heat and her
skin had shriveled before Dr. Kenny’s examination. Because Morgan’s body was charred, Dr.
Karazulas will testify that no reliable comparison could be made to the bite marks found on
Morgan’s breast and neck. Dr. Bowers further explains that even despite the heat and any
distortion cause by the burning, Young’s dentition has a distinguishing characteristic that
excluded his dentition for creating the bite mark. Likewise, Dr. Bowers would testify that it is
impossible to link Hill to the hickey because the hickey mark had no distinguishing
characteristics narrowing the class of persons who might have made the mark. As such, Drs.
Bowers’ and Karazulas’ opinion testimony is highly relevant to rebut testimony that Hill and
Young left marks on Morgan’s body. See Gallardo, 497 F.3d at 733.
Defendants argue that because Drs. Bowers’ and Karazulas’ formed their opinions after
Hill’s alleged coerced confession, their opinion testimony is not relevant to whether Defendants
coerced Hill’s confession. Defendants’ argument is misplaced because Hill does not offer this

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testimony of evidence as to what Defendants Boudreau and Halloran knew or did not know at
the time of Hill’s interrogation. Instead, Hill offers this evidence to rebut Defendants’ assertion
that the bite mark evidence indicates Hill’s confession was truthful and that he was guilty of
Morgan’s murder. Accordingly, Defendants’ arguments that Drs. Bowers’ and Karazulas’
opinion testimony is not relevant fail based on the evidence Defendants intend to introduce
regarding bite marks.
II.

Reliability
Next, Defendants maintain that Drs. Bowers’ and Karazulas’ opinions are not reliable.

The Court addresses Drs. Karazulas’ and Bowers’ backgrounds and opinions separately.
A.

Dr. Constantine Karazulas

In 1959, Dr. Karazulas obtained his dental degree. In 1977, Dr. Karazulas began
working with the Connecticut State Police laboratory in forensic odontology. Thereafter, in
1984, Dr. Karazulas became the chief forensic odontologist of the Connecticut State Police
Forensic Science Laboratory, a position he still holds. In his decades of experience with the
Connecticut State Police Forensic Science Laboratory, Dr. Karazulas has performed thousands
of forensic odontology analyses. Dr. Karazulas, along with Dr. Larry T. Weddle of Yale
University, are credited with developing the standard bite mark comparison method that uses
Adobe Photoshop overlays. Also, Dr. Karazulas has been a fellow of the American Academy of
Forensic Sciences and belongs to the American Society of Forensic Odontology and the
International Association of Identification. Presently, Dr. Karazulas teaches courses on crime
scenes and odontology at the University of New Haven. Meanwhile, Dr. Karazulas has testified
as an opinion witness approximately thirty times in his career. Based on Dr. Karazulas’

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extensive academic and practical expertise in forensic odontology, he qualifies an expert under
Daubert and Rule 702 to testify about the bite mark analyses in this matter. See Gayton v.
McCoy, 593 F.3d 610, 616 (7th Cir. 2010) (“Whether a witness is qualified as an expert can only
be determined by comparing the area in which the witness has superior knowledge, skill,
experience, or education with the subject matter of the witness’s testimony.”) (citation omitted).
Based on his extensive background and experience, Dr. Karazulas testified that after he
saw photographs of the condition of Morgan’s body, he observed that the bite mark and hickey
were in a burn area and that Morgan had rigor mortis. (R. 427, Ex. A, Karazulas’ Dep., at 16-17,
20-24.) Also, Dr. Karazulas opined that because there was at least 40 percent distortion of the
tissue, any bite mark analysis was speculative. (Id.) Dr. Karazulas further opined that because
Morgan’s tissue was distorted, there was no way to establish, scientifically, that Young or Hill
left the bite marks. (Id. at 30-31.)
In the present motion, Defendants argue that because Dr. Karazulas testified that the
evidence of the bite mark was unsuitable for analysis, his opinion that there was no way to
establish that Hill or Young left the bite marks on Morgan’s body is somehow flawed. Dr.
Karazulas’ conclusion that a comparison could not be made is based on his review of the
photographs that Morgan’s skin was exposed to extreme heat and that her skin was too distorted,
as well as his vast experience in bite mark analysis. See Metavante Corp., 619 F.3d at 761 (“An
expert’s testimony is not unreliable simply because it is founded on his experience rather than on
data”). Meanwhile, Defendants’ argument attacks Dr. Karazulas’ conclusion, and not the
reliability of the methodology used in forming his opinion. As the Seventh Circuit instructs,
“[t]he focus of the district court’s Daubert inquiry must be solely on principles and

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methodology, not on the conclusions they generate.” Winters v. Fru-Con Inc., 498 F.3d 734, 742
(7th Cir. 2007). Moreover, Dr. Karazulas’ conclusion is open to cross-examination and
competing expert testimony. See Daubert, 509 U.S. at 596 (“Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence”); Deputy v.
Lehman Bros., Inc., 345 F.3d 494, 507 (7th Cir. 2003). In sum, Defendants’ reliability argument
fails.
B.

Dr. Charles Michael Bowers

Dr. Michael Bowers graduated from the University of Southern California Dental School
in 1975 and has been practicing forensic dentistry since 1983. Dr. Bowers is also a licensed
attorney in the State of California. Presently, Dr. Bowers serves as a diplomate on the American
Board of Forensic Odontology. As a diplomate, Dr. Bowers undertook a comparative analysis of
methods used by forensic odontologists and published, along with Dr. David Sweet, guidelines
for bite mark comparison for the American Board of Forensic Odontology in the Journal of
Forensic Scientists. In the past eight years, Dr. Bowers has been retained to perform
approximately 40 to 50 bite mark investigations. Moreover, Dr. Bowers has published a number
of articles regarding the scientific foundation of methods used in forensic dentistry. Based on
Dr. Bowers’ extensive academic and practical expertise in forensic odontology, he qualifies as
an expert under Daubert and Rule 702 to testify about the bite mark analyses in this matter. See
Gayton, 593 F.3d at 616.
Dr. Bowers opined that Dr. Kenny’s opinion – that Young was the source of the bite
mark on Morgan – was based on procedures that were below the standard of care held by the

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forensic dentistry community. (R. 427, Ex. G, Bowers Aff. ¶ 6.) In particular, Dr. Bowers
averred that Dr. Kenny’s use of plaster casts of Young were of inadequate quality to render the
opinion that Young was the source of the bite mark. (Id. ¶ 6 (A)). Also, Dr. Bowers opined that
Dr. Kenny failed to consider a feature that excludes Young as the source, namely, that his lower
front teeth are of the same height, unlike the biter’s mouth. (Id. ¶ 6(C)).
Defendants take issue with this opinion because Dr. Bowers used the plaster casts in his
analysis even though he found that Dr. Kenny’s use of them was below the relevant standard of
care. Dr. Bowers’ opinion that Young was not the source of the bite mark, however, was also
based on Dr. Bowers visually inspecting the teeth using the photographs that Dr. Kenney took.
Based on his inspection, Dr. Bowers noted that one of the biter’s lower front teeth was shorter,
whereas Young’s lower front teeth were even. Thus, based on his experience and visual
inspection of the photographs, Dr. Bowers formed his opinion as to the biter’s dentition
compared to Young’s dentition. As to Defendants’ argument that Dr. Bowers testified that the
heat exposure to Morgan’s body would make any bite mark analysis inaccurate, yet Dr. Bowers
formed an opinion nonetheless, any such inconsistency does not go to the reliability of Dr.
Bowers’ methodology, but instead goes to the flaws and ultimately the persuasiveness of Dr.
Bowers’ opinion that Defendants may test during cross-examination. See Deputy, 345 F.3d at
507; see also Gayton, 593 F.3d at 616 (“Determinations on admissibility should not supplant the
adversarial process; ‘shaky’ expert testimony may be admissible, assailable by its opponents
through cross-examination.”). Therefore, Defendants’ reliability arguments concerning Dr.
Bowers’ methodology fail.
III.

Prejudice

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Finally, Defendants argue that the probative value of Drs. Bowers’ and Karazulas’
testimony is substantially outweighed by the danger of unfair prejudice and juror confusion. See
Fed.R.Evid. 403; United States v. Ozuna, 561 F.3d 728, 738 (7th Cir. 2009). As the Seventh
Circuit explains,“[e]vidence is considered unfairly prejudicial, not merely because it damages
the opposing party’s case, but also because its admission makes it likely that the jury will be
induced to decide the case on an improper basis.” Thompson v. City of Chicago, 472 F.3d 444,
456 (7th Cir. 2006). As discussed above, not only is Drs. Bowers’ and Karazulas’ testimony
highly probative to rebut any trial testimony about the bite mark evidence against Hill, if the
Court were to exclude Drs. Bowers’ and Karazulas’ testimony while allowing other bite mark
evidence at trial, Hill, himself, would suffer prejudice because of the real possibility that the jury
would consider this un-rebutted bite mark evidence improperly. See Thompson, 472 F.3d at 456.
Defendants’ juror confusion argument similarly fails. Specifically, if the jury hears only half the
story of the bite mark evidence, the jury would be distracted from the central issues in this
matter. See United States v. Alayeto, 628 F.3d 917, 922 (7th Cir. 2010). As such, Defendants’
argument that Drs. Karazulas’ and Bowers’ testimony is substantially outweighed by the
potential prejudice and jury confusion is without merit. See Fed.R.Evid. 403. As long as
Defendants introduce testimony regarding the bite marks, Drs. Bowers’ and Karazulas’
testimony is relevant and admissible.

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CONCLUSION
For these reasons, the Court denies Defendants’ motion to bar Dr. Constantine Karazulas
as an expert witness and Defendants’ motion to bar Dr. Charles Michael Bowers as an expert
witness.
Dated: June 20, 2011

ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge

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