Hill v. City Of Chicago et al
Filing
542
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 6/27/2011: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 move 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 Dr. Karl
Reich’s expert testimony. For the following reasons, the Court grants in part and denies in part
Defendants’ motion.
BACKGROUND
Plaintiff Harold Hill maintains 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. In the
present motion, Defendants contend that Dr. Reich’s expert opinion testimony as to postconviction DNA testing is irrelevant and unreliable. As the Court explained in its earlier rulings,
under the facts and circumstances of this case, DNA evidence is relevant to Hill’s Fifth
Amendment claim because it has the tendency to make the fact that Defendants coerced his
confession more probable than not. See United States v. Canady, 578 F.3d 665, 670-71 (7th Cir.
2009) (“Rule 401 defines relevant evidence as ‘evidence having any tendency to make the
existence of any fact that is of consequence ... more probable or less probable than it would be
without the evidence’”). In general, as long as Defendants argue that Hill remains guilty of the
Morgan murder, DNA evidence regarding Hill’s innocence is highly relevant and probative to
his coerced confession claim.
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)
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
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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) (quotation omitted).
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.
ANALYSIS
I.
Relevancy
Defendants first argue that Dr. Reich’s opinion testimony is not relevant because it would
not assist the jury in determining any facts at issue in this lawsuit. As the Daubert Court teaches,
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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). Put differently, “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).
In response to DNA evidence found under Morgan’s fingernails that excluded Hill as a
contributor, Defendants have developed the defense that Hill’s DNA may have been found on
other evidence, but because there was insufficient data, the DNA testing that was performed was
inconclusive. In rebuttal, Dr. Reich opines that additional testing could have been performed. In
this context, Defendants argue that Dr. Reich’s testimony is not relevant because there is no way
of knowing the results of any additional testing. Contrary to Defendants’ argument, Dr. Reich’s
opinion that had there been further analysis of the DNA evidence, there would have been a more
complete profile of male contributors is relevant. To clarify, this explanation is helpful to the
jury because it provides an alternative explanation for why a DNA match was not obtained and
in rebuttal to Dr. Staub’s opinion that “it cannot be scientifically concluded that Hill, Young, and
Williams were not involved in the crime.” (R. 429, Ex. B, Staub Report, at 8.) Accordingly, Dr.
Reich’s opinion that additional testing would have provided a more complete profile is relevant
and helpful to the jury. See Gallardo, 497 F.3d at 733.
Defendants also argue that Dr. Reich’s testimony rebutting Donald Parker’s analysis for
the Illinois State Police regarding the number of individuals included in the DNA mixture under
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Morgan’s fingernails is irrelevant. Specifically, Parker concluded that the DNA came from
Morgan and at least two other people, whereas Dr. Reich concluded that the DNA contains
mixtures of Morgan and one male. Hill maintains that Dr. Reich’s testimony is relevant because
it conflicts with Defendants’ theory of the case that three people committed the Morgan murder.
Defendants, on the other hand, maintain that they do not intend to offer evidence attempting to
prove the number of Morgan’s attackers. Accordingly, testimony about the number of
contributors to the DNA mixture is not relevant and would lead to juror confusion. See
Fed.R.Evid. 401, 403; see United States v. Alayeto, 628 F.3d 917, 922 (7th Cir. 2010) (evidence
is confusing if it distracts jurors from central issue of case). Therefore, the Court bars Dr.
Reich’s opinion testimony regarding the number of contributors to the DNA mixture found under
Morgan’s fingernails.
Next, Defendants assert that Hill has wrongfully interjected his innocence into this
lawsuit and that he is attempting to submit Dr. Reich’s DNA evidence to demonstrate his
innocence. As discussed above, as long as Defendants argue that Hill is guilty of the Morgan
murder, evidence relating to Hill’s innocence and Defendants’ theory of Hill’s guilt is highly
relevant and probative to Hill’s coerced confession claim. Therefore, Defendants’ argument that
Hill is trying to interject irrelevant evidence about his innocence is disingenuous at best.
Further, testimony concerning the DNA evidence is also relevant to the extent that it
demonstrates that Hill’s confession was false and rebuts Defendants’ arguments that Hill
independently knew the details of Morgan’s murder.
Defendants also argue that Dr.
Reich’s opinion testimony is not relevant and does not assist the jury in understanding any facts
at issue because Dr. Reich did not conduct the DNA testing, but instead reviewed the DNA
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results done by other laboratories. Defendants fail to mention, however, that their competing
expert, Dr. Rick W. Staub, did not conduct his own testing, but similarly based his analysis on
laboratory results. (See R. 429, Ex. B, Staub Report.) Moreover, the Seventh Circuit has
rejected a similar argument and concluded that experts can rely on scientific data generated by
others. See Clark v. Takata Corp., 192 F.3d 750, 758 (7th Cir. 1999) (“Either ‘hands-on testing’
or ‘review of experimental, statistical, or other scientific data generated by others in the field’
may suffice as a reasonable methodology upon which to base an opinion.”) (citation omitted).
Defendants’ relevance argument in this regard fails.
In this same vein, Defendants contend that Dr. Reich’s opinion testimony is cumulative
because it reiterates the conclusions of the other laboratories and Hill has disclosed
representatives of these laboratories as witnesses. As Hill explains, rather than calling six
witnesses, it makes more sense to call an expert who can testify to the body of DNA testing as a
whole. The Court agrees. Because Dr. Reich’s opinion testimony would assist the jury in
understanding the various laboratory results, it is helpful and relevant. See Banister, 636 F.3d at
831; United States v. Avila, 557 F.3d 809, 821 (7th Cir. 2009). Meanwhile, Defendants can
cross-examine Dr. Reich’s summary to establish that it is inaccurate, incomplete, and biased as
Defendants argue in their motion. See Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010)
(“Determinations on admissibility should not supplant the adversarial process; ‘shaky’ expert
testimony may be admissible, assailable by its opponents through cross-examination.”); see also
Walker v. Soo Line R. Co., 208 F.3d 581, 587 (7th Cir. 2000).
Last, Defendants argue Dr. Reich’s opinion that the overall testing was biased toward
linking Hill to the crime is not relevant because Dr. Reich also stated that the testing did not
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reflect any such bias. Defendants’ argument does not go to the relevancy of Dr. Reich’s opinion,
but to the inconsistencies in Dr. Reich’s testimony, which can be tested through crossexamination and used to impeach Dr. Reich’s credibility. See Gayton, 593 F.3d at 616; Fine v.
Ryan Int’l Airlines, 305 F.3d 746, 753 (7th Cir. 2002).
Because the Court concludes that the majority of Dr. Reich’s opinion testimony is
relevant, it now turns to Defendants’ arguments that Dr. Reich’s methodology in forming his
conclusions is unreliable.
II.
Reliability
Dr. Reich has worked in the field of DNA analysis since he was a graduate student in the
Department of Biological Chemistry at the University of California, Los Angeles (“UCLA”) in
1979. Specifically, Dr. Reich received his undergraduate degree in chemistry from Cornell
University in 1977 and his Ph.D. in molecular biology from the UCLA and Harvard Medical
School in 1988. After obtaining his Ph.D., Dr. Reich had a two-year fellowship at the Institute
Pasteur in Paris, France and then served six years as a research fellow at Stanford University
School of Medicine. Dr. Reich has published numerous articles on DNA forensics and has
taught DNA evidence courses to legal professionals.
Currently, Dr. Reich is the Chief Scientific Officer for Paternity, DNA Forensics, and
Molecular Biology at Independent Forensics of Hillside, Illinois. Prior to his work at
Independent Forensics, Dr. Reich worked in pharmaceutical development and genomics-based
research. Based on Dr. Reich’s extensive academic background and practical expertise in DNA
forensics, he qualifies as an expert under Daubert and Rule 702 to testify about the field of DNA
forensic analysis. See Gayton, 593 F.3d at 616 (“Whether a witness is qualified as an expert can
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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).
In support of their argument that Dr. Reich’s testimony is based in unreliable principles
and methods, Defendants argue that Dr. Reich misrepresented the facts in summarizing the DNA
testing as follows: “Mr. Harold Hill, Mr. Dan Young, Jr., and Mr. Peter Williams are excluded as
being contributors to any and all items of evidence examined.” In particular, Defendants argue
that Hill, Young, and Williams could not be excluded from several items of evidence because the
DNA results were not suitable for comparison. These items include Morgan’s stained sock, her
blue pants, and a dowel rod used in the murder. Based on Dr. Reich’s admission that exclusion
is not possible when a comparison cannot be made, Defendants argue that Dr. Reich’s
conclusion is demonstrably false and not based on any scientific method.
Even if Dr. Reich’s conclusion is inaccurate because no comparison could be made on
the sock, pants, and dowel rod, Dr. Reich’s statement does not implicate his scientific
methodology. Instead, Defendants can address Dr. Reich’s statement that Hill, Young, and
Williams were excluded as being contributors to any and all items should be addressed through
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”). In
short, Dr. Reich’s testimony is admissible and it is the jury’s decision – not the Court’s –
whether to accept his explanations. See Deputy v. Lehman Bros., Inc., 345 F.3d 494, 507 (7th
Cir. 2003).
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Defendants further argue that Dr. Reich’s opinion regarding the number of individuals
included in the DNA mixture under Morgan’s fingernails is unreliable based on Donald Parker’s
analysis concluding otherwise. Defendants’ argument, however, does not go to Dr. Reich’s
methodology, but instead targets Dr. Reich’s conclusion. And, although the Court bars Dr.
Reich’s opinion testimony regarding the number of contributors to the DNA mixture found under
Morgan’s fingernails as discussed above, it is important to note that “[t]he focus of the district
court’s Daubert inquiry must be solely on principles and methodology, not on the conclusions
they generate.” Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2007); see also Lehman
Bros., 345 F.3d at 507. As such, Defendants may attack Dr. Reich’s conclusions on crossexamination and through Parker’s expert testimony. See Walker, 208 F.3d at 589 (“That two
different experts reach opposing conclusions from the same information does not render their
opinions inadmissible.”).
Next, Defendants assert that Dr. Reich’s summary of the analysis conducted by
Reliagene misstates the results provided in the Reliagene reports. Defendants contend, for
example, that in his summary, Dr. Reich omitted several items of evidence that Reliagene
analyzed. Again, Defendants’ challenge does not go to Dr. Reich’s methodology, but to the
materials that Dr. Reich reviewed in preparing for his testimony – materials that may contain
ammunition for cross-examination. See Fidelity Nat’l Title Ins. Co. of New York v. Intercounty
Nat’l Title Ins. Co., 412 F.3d 745, 751 (7th Cir. 2005). Accordingly, this reliability argument
fails.
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Defendants’ last reliability argument is that Dr. Reich’s conclusions “are merely
musings, without basis in fact.” Based on the Court’s review of Dr. Reich’s July 18, 2008
deposition testimony and his July 1, 2008 “Report and Summary of DNA-Based evidence in
Harold Hill Case,” the Court would be hard-pressed to conclude that Dr. Reich’s conclusions are
not based in any fact and are mere musings. Moreover, Defendants’ undeveloped argument does
not save the day. See Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) (“perfunctory and
undeveloped arguments, and arguments that are unsupported by pertinent authority, are
waived.”) (citation omitted). Therefore, Defendants’ arguments regarding the reliability of Dr.
Reich’s methods fail.
III.
Juror Confusion
Last, Defendants argue that the probative value of Dr. Reich’s testimony is substantially
outweighed by the danger of misleading and confusing the jury. See Fed.R.Evid. 403. Because
the Court grants Defendants’ motion in part concerning Dr. Reich’s opinion testimony about the
number of contributors to the DNA mixture under Morgan’s fingernails, the Court need not
address Defendants’ juror confusion argument as to this issue. Meanwhile, as long as
Defendants argue that Hill remains guilty of the Morgan murder, the other DNA evidence
discussed in this opinion regarding Hill’s innocence is highly relevant and probative to his
coerced confession claim. Finally, Defendants have failed to offer any good reason why this
evidence would district the jurors from the central issues in this lawsuit. See Alayeto, 628 F.3d
at 922.
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CONCLUSION
For these reasons, the Court grants in part and denies in part Defendants’ motion to bar
Dr. Karl Reich as an expert witness.
Dated: June 27, 2011
ENTERED
______________________________
AMY J. ST. EVE
United States District Court Judge
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