Michaels v. McPherson, Kansas, City of et al

Filing 117

MEMORANDUM AND ORDER granting in part and denying in part 108 Motion in Limine. Signed by District Judge Monti L. Belot on 09/25/2014. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MATTHEW B. MICHAELS,
Plaintiff,
v.
CITY OF MCPHERSON, KANSAS,
Defendant.

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CIVIL ACTION
No.

13-1128

MEMORANDUM AND ORDER
Before the court is defendant’s motion in limine (Doc. 108).
Plaintiff filed a response (Doc. 110) and the court is prepared to
rule.
The court cautions the parties that nothing in this order will
preclude the admissibility of excluded evidence if it otherwise
becomes relevant at trial. See Turley v. State Farm Mut. Ins. Co., 944
F.2d 669, 673 (10th Cir. 1991) (“The better practice would seem to be
that evidence of this nature ... should await development of the trial
itself.”).

By

the

same

taken,

nothing

said

herein

should

be

constituted as a final ruling admitting evidence to which a valid
objection is made at trial.
I. Motion in limine (Doc. 108).
Defendant seeks to exclude the following items of evidence from
the trial.
1. Evidence (and arguments, et cet.) about liability insurance.
Plaintiff agrees such evidence should be excluded; the request is
granted.
2. Evidence about settlement negotiations. Plaintiff again

agrees; the request is granted.
3. Opinion testimony regarding any other person’s subjective
motives, beliefs, or intent. Defendant objects in particular to
opinions by plaintiff’s designated law enforcement expert, Mickey
DeHook, that Chief McClarty was “out to get rid of [plaintiff]” and
“wanted to get rid of [plaintiff,” and “[s]o anything and everything
he could put together to get rid of him, he was going to do it.” Doc.
108 at 3.

In response, plaintiff points to an alleged comment by

McClarty asking “why is this guy [plaintiff] still a cop?”. Plaintiff
argues there is a factual dispute about McClarty’s motives for
terminating plaintiff and says DeHook’s opinion is not speculative and
should be allowed. Doc. 110 at 5.
Plaintiff’s argument is not persuasive. DeHook’s opinions about
McClarty’s motives and whether he “wanted to get rid of” plaintiff are
entirely speculative. Plaintiff shows no connection between DeHook’s
asserted expertise and his ability to divine McClarty’s true motives.
Nor are such opinions helpful to a jury. See Fed. R. Evid. 702(a)
(expert testimony admissible if it will help the jury understand the
evidence or determine a fact in issue). The motion is granted with
respect to the opinions cited.
4. DeHook’s opinion that plaintiff did not engage in conduct
unbecoming an officer. This issue relates to Michael’s comments about
having to attend a 911 training session. Plaintiff had requested leave
to miss the session so he could drive his daughter to Kansas City for
medical tests. The test -- a “sleep-deprived EEG” -- required that
plaintiff’s daughter sleep only between midnight and 4 a.m. on the
night before the test. Plaintiff’s request for leave was denied by
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McClarty, however, so plaintiff and his wife planned to drive their
family to Kansas City immediately at 8 p.m., at the end of the
scheduled training session, so they could comply with the required
sleep regimen. Plaintiff’s wife and children were loaded up in the car
ready to go at 8 p.m. but the training session ran several hours late.
Plaintiff told a supervisor that he was supposed to be released but
was told the training wasn’t over. At some point during a break
plaintiff

heatedly

complained

to

the

county

911

director,

whom

plaintiff considered a friend, about having to be there (i.e., “this
is fucking bullshit that I have to be here”). Plaintiff was finally
able to drive his family to Kansas City at about 11 p.m. that evening.
The 911 Director subsequently informed a member of the department
about plaintiff’s complaint. Chief McClarty cited the episode as
“conduct unbecoming an officer” and listed it as one of the reasons
for plaintiff’s termination. Plaintiff’s police expert DeHook recounts
the circumstances of the incident. He emphasizes the facts from
plaintiff’s point of view and opines that the conduct-unbecoming
charge is “unfounded.”
Defendant argues that DeHook’s opinion would not be helpful to
the jury and is based entirely on personal opinion. The court agrees.
Rule 702 requires a district court to satisfy itself that the proposed
expert testimony will assist the trier of fact. United States v.
Archuleta, 737 F.3d 1287, 1296 (10th Cir. 2013). In making that
determination, the court looks to whether the testimony is relevant,
whether it is within a juror’s common knowledge and experience, and
whether

it

usurps

the

juror’s

role

of

evaluating

a

witness’s

credibility. Archuleta, 737 F.3d at The circumstances of this episode
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and the nature of the accusation against plaintiff are all clearly
understandable by lay persons. Plaintiff cites nothing to show there
are established standards for “conduct unbecoming an officer” that
require expert explanation, nor does he show that DeHook relied on any
such standards. DeHook’s opinion on this matter would not be helpful
to a jury.
4.

Expert

testimony

that

plaintiff

was

not

insubordinate.

Defendant also seeks to exclude DeHook’s opinion that plaintiff was
not insubordinate, arguing the opinion does nothing more than vouch
for plaintiff’s credibility and would not help the jury. In response,
plaintiff gives an extensive recitation of the facts and offers a
plausible argument as to why plaintiff’s conduct should not be
considered insubordinate. The argument does not mention DeHook’s
opinion except to say that it should be admitted. (Doc. 110 at 10-12).
In doing so, plaintiff proves defendant’s point -- namely, that
DeHook’s asserted opinion (including: “The fact that Mr. Michaels
apologized shows character on his part”) is not necessary or helpful
to a lay person’s understanding of the issue. The motion to exclude
the opinion is granted. Cf. United States v. Hill, 749 F.3d 1250, 1261
(10th Cir. 2014) (the credibility of witnesses is generally not an
appropriate subject for expert testimony).
5. DeHook’s opinion that plaintiff was not argumentative. The
same considerations require exclusion of any opinion by DeHook that
plaintiff was not argumentative with superiors. DeHook’s apparent
opinion is that plaintiff’s conduct was not argumentative because
plaintiff

was

merely

questioning

police

procedures

he

did

not

understand. Any lay person on the jury (including any parent) will be
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fully capable of understanding what it means to be argumentative.
DeHook’s opinion, which largely consists of a recitation of the facts
in a light most favorable to plaintiff, would add nothing to the
jury’s understanding. Plaintiff can explain why he did what he did,
McClarty can explain his assertion that it was argumentative, and the
jury can determine whether the City’s action was appropriate under the
legal standards in the court’s instructions.
6. DeHook’s opinion that plaintiff’s discipline for sleeping on
duty was wrongfully presented to the City and to the Kansas Commission
on Peace Officers and Training (KS-CPOST). DeHook opines it was
improper for McClarty to cite plaintiff’s discipline for sleeping on
the job because that conduct occurred under a prior chief and it
resulted from a medical condition that was resolved by plaintiff’s
treatment for sleep apnea.
Plaintiff’s recitation of the facts and arguments surrounding
this issue again show that no expert testimony is necessary or helpful
for a jury’s understanding of the matter. As plaintiff points out,
Judge Murguia succinctly observed in his summary judgment order that
after plaintiff was diagnosed and treated for sleep apnea, he had no
further [sleeping] incidents, and so “it is unclear why McClarty
listed that plaintiff fell asleep on duty as a reason for his
termination.” Judge Murguia thus found “a jury could reasonably infer
a

causal

connection

between

plaintiff’s

termination

and

his

disability....” (Doc. 70 at 15). DeHook’s personal opinion that
plaintiff’s past episodes of sleeping should not have been considered
adds nothing to an understanding of the claim.
7. DeHook’s opinion that the information in plaintiff’s KS-CPOST
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Notice

of

Termination

will

prevent

him

from

obtaining

future

employment in law enforcement. Defendant argues DeHook’s opinion
amounts to speculation because he does not know how many Kansas law
enforcement agencies actually check CPOST before hiring officers. But
DeHook’s testimony showed that he has prior experience in hiring law
enforcement officers in Kansas, that he was familiar with CPOST, that
he believed a majority of agencies used CPOST in hiring, and that he
knows from experience it is standard practice to conduct a thorough
check on law enforcement applicants. He opined that the negative
comments in plaintiff’s CPOST listing would prevent plaintiff from
obtaining future employment as a law enforcement officer in Kansas.
Although defendant points to certain weaknesses in DeHook’s opinion,
the opinion does not, as defendant suggests, “lack any basis” or rely
merely on speculation. Moreover, jurors will not likely be familiar
with CPOST or its use by law enforcement agencies, and the testimony
may be helpful in that regard. Defendant’s motion to exclude this
opinion will be denied.1
II. Conclusion.
Defendant’s motion in limine (Doc. 108) is granted in part and
denied in part.
IT IS SO ORDERED.
Dated this 25th

day of September 2014, at Wichita, Kansas.

Defendant has not specifically challenged DeHook’s accompanying
opinion
that
plaintiff’s
notice
of
termination
“contains
misrepresentations, omissions or falsification about the reasons for
the termination.” In the interest of giving fair warning, however, the
court notes that this asserted expert opinion appears to suffer from
some of the same shortcomings previously listed -- including its
implied assessment of witness credibility -- that are properly left
to the jury to decide.
1

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s/Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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