Womack v. Conley et al
ORDER granting in part and denying in part 88 Motion to Exclude. Accordingly, consistent with the above opinion, the Court will GRANT in part, as to portions of testimony embracing ultimate issues to be decided by the trier of fact or the Court, an d DENY in part, as to testimony concerning Kentucky State Police General Orders and how the police practices/administration in this case compared to generally accepted practices, consistent with this opinion.. Signed by Senior Judge Thomas B. Russell on 11/8/13. cc:counsel (DJT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 4:11-CV-00039-TBR
DAX R. WOMACK
MEMORANDUM OPINION AND ORDER
Defendants Kentucky State Police Captain Robert Shoultz and Kentucky State
Police Sergeant Jason Kirk moves, pursuant to Federal Rule of Evidence 702, for an
order to be entered prohibiting Dr. Paul McCauley from testifying at the trial of this
matter. (Docket No. 88.) Defendant Matt Conley has filed a response in support of this
(Docket No. 93.)
Plaintiff Womack has responded.
(Docket No. 99.)
Defendants Shoultz and Kirk have replied. (Docket No. 113.) This matter is now ripe
for adjudication. The Court is granting Defendants’ motions for summary judgment. To
the extent Plaintiff may be relying on any testimony of Dr. McCauley to respond to
those motions, the Court felt it should issue an opinion on this motion.
For the reasons that follow and consistent with the below opinion, this motion is
GRANTED in part, as to portions of testimony embracing ultimate issues to be
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decided by the trier of fact and Court, and DENIED in part, as to testimony concerning
Kentucky State Police General Orders and how the police practices/administration in
this case compared to generally accepted practices.
Plaintiff Womack’s only expert, Dr. Paul McCauley, seeks to testify against
Defendants. Defendants argue that his testimony would not be relevant or reliable
under Federal Rule of Evidence (“FRE”) 702 and Daubert v. Merrell Dow
Pharmaceuticals Inc., 509 U.S. 579 (1993). McCauley’s report states that he will
“render a professional opinion regarding the police operations and practices involving
the above-referenced parties which resulted in the arrest of Dax R. Womack on April 9,
2010.” (Docket No. 99-3, Page 2-3.) Specifically, he will testify a General Order
applied and was violated, probable cause did not exist, Plaintiff’s constitutional rights
were violated, compare the police practices/administration in this case to generally
accepted practices, and comment on the credibility of people involved in the case.
The admissibility of expert testimony is governed by Rule 702 of the Federal
Rules of Evidence. Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
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(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
In Daubert v. Merrell Dow Pharm., Inc., “the Supreme Court established a general
gatekeeping obligation for trial courts to exclude from trial expert testimony that is
unreliable and irrelevant.” Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th
Cir. 2002) (alteration and internal quotation marks omitted) (quoting Hardyman v.
Norfolk & W. Ry. Co., 243 F.3d 255, 260 (6th Cir. 2001) (applying Daubert, 509 U.S.
579, 597 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999))). The
Court must determine whether evidence proffered under Rule 702 “both rests on a
reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. A
key consideration is “whether the reasoning or methodology underlying the testimony is
sufficiently valid.” Id. at 592-93. The Supreme Court advises that the inquiry is “a
flexible one,” and that “[t]he focus . . . must be solely on principles and methodology,
not on the conclusions they generate.”
Id. at 594-95.
A testifying expert must
“employ in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152. But Daubert
did not impose any new standard, other than that already found in the Federal Rules of
Evidence, for the admissibility of the testimony of nonscientific expert witnesses. See
id.; see also United States v. Velasquez, 64 F.3d 844, 850 (3d Cir. 1995) (noting that
Daubert did not impose a new standard other than what is already set out in the Federal
Rules of Evidence “for the admissibility of the testimony of nonscientific experts such
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as . . . real estate appraisers”); United States v. Starzecpyzel, 880 F. Supp. 1027, 1040-41
(S.D.N.Y. 1995) (same).
Despite that there is no “definitive checklist or test” for meeting the standard of
Rule 702, Daubert laid out a number of factors that typically “bear on the inquiry,”
including: whether the theory or method in question “can be (and has been) tested,”
whether it “has been subjected to peer review and publication,” whether it has a “known
or potential rate of error,” and whether the theory or technique enjoys “general
acceptance” in the “relevant scientific community.”
Daubert, 509 U.S. at 593-94.
Although Daubert addressed scientific evidence, the Supreme Court in Kuhmo Tire Co.
v. Carmichael held that a trial court may consider the Daubert factors for all types of
Kumho Tire, 526 U.S. at 150.
Thus, the Daubert factors are
nonexhaustive and may not be pertinent in cases where “the relevant reliability concerns
. . . focus upon personal knowledge or experience.”1 Id.; see also First Tenn. Bank Nat’l
Ass’n v. Barreto, 268 F.3d 319, 335 (6th Cir. 2001).
The Advisory Committee Notes to Rule 702 reinforce this position:
Some types of expert testimony will be more objectively verifiable,
and subject to the expectations of falsifiability, peer review, and publication,
than others. Some types of expert testimony will not rely on anything like a
scientific method, and so will have to be evaluated by reference to other
standard principles attendant to the particular area of expertise. The trial
judge in all cases of proffered expert testimony must find that it is properly
grounded, well-reasoned, and not speculative before it can be admitted. The
expert’s testimony must be grounded in an accepted body of learning or
experience in the expert’s field, and the expert must explain how the
conclusion is so grounded. See, e.g., American College of Trial Lawyers,
Standards and Procedures for Determining the Admissibility of Expert
Testimony after Daubert, 157 F.R.D. 571, 579 (1994) (“[W]hether the
testimony concerns economic principles, accounting standards, property
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The Sixth Circuit has developed further guidance on Rule 702 by recently
outlining a number of “[r]ed flags that caution against certifying an expert.” Newell
Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012) (citing Best v.
Lowe’s Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009)). These include “reliance on
anecdotal evidence, improper extrapolation, failure to consider other possible causes,
lack of testing, and subjectivity.” Id. (citing Best, 563 F.3d at 177). Also, that a
purported expert’s testimony was prepared solely for litigation may also be grounds for
exclusion. Id. (citing Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th
Where the testimony of a proffered expert is challenged for insufficient “factual
basis, data, principles, methods, or their application . . . the trial judge must determine
whether the testimony has a reliable basis in the knowledge and experience of [his or
her] discipline.” Kumho Tire, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 592). The
Court need not necessarily hold a Daubert hearing to determine the admissibility of
expert testimony but, nonetheless, must ensure that the disputed testimony is both
relevant and reliable. See Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir. 2000).
Generally, “a trial judge . . . ha[s] considerable leeway in deciding whether particular
expert testimony is reliable,” Kumho Tire, 526 U.S. at 152; accord Conwood, 290 F.3d
at 792; Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000), and his decision
whether to admit expert testimony is reviewed for abuse of discretion, see Kuhmo Tire,
valuation, or other non-scientific subjects, it should be evaluated by reference
to the ‘knowledge and experience’ of that particular field.”).
Fed. R. Evid. 702 advisory committee’s note (2000 amend.) (emphasis added).
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526 U.S. at 142; Newell Rubbermaid, 676 F.3d at 527; Hardyman, 243 F.3d at 258; see
also Tamraz v. Lincoln Electric Co., 620 F.3d 665, 672 (6th Cir. 2010) (“Rule 702, we
recognize, does not require anything approaching absolute certainty. And where one
person sees speculation, we acknowledge, another may see knowledge, which is why
the district court enjoys broad discretion over where to draw the line.” (internal citations
Defendants’ View on McCauley’s Credentials
In support of their motion, Defendants point to McCauley’s credentials, or the
lack thereof. He has never had the title of detective and his only law enforcement
experience consists of four years of “part-time” service with a police department. He
has not worked as a sworn police officer in the past 43 years or supervised any officers.
He has never participated in a drug transaction.2 While he has served as a criminology
professor, he only taught criminal investigation classes as a substitute teacher.
McCauley has only basic training: 40 hours of basic police training in 1966 (which did
not involve narcotics training) and a 12-week “Her Majesty’s Police College and Home
Office Detective Course.” Finally, he has not been certified to teach municipal police
training courses for approximately 15 years.
Plaintiff takes issue with Defendants’ contention that McCauley has never participated in a drug transaction.
Plaintiff points out that he has observed drug transactions and participated in planning them. He also was an
instructor in an internal affairs seminar course involving drug transfers. Finally, he was a member of a
council concerning joint drug task forces whose policies were implemented. (Docket No. 99, Page 3.)
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Plaintiff’s View on McCauley’s Credentials
Plaintiff argues McCauley is qualified to offer the opinions contained in his
Report and Supplement Report. McCauley was a member of the faculty of the Southern
Police Institute and lectured command officers of the Kentucky State Police about
police management and operational policy formulation, which included criminal
investigations, internal affairs, inspection, and police accountability. He helped design
what has become Pennsylvania’s training standard for police officers, where he was a
training officer and supervised the trainers.
McCauley has taken numerous investigative courses from the FBI and DEA. He
previously was a member of the Western Law Enforcement Coordinating Council for
the Western District of Pennsylvania, which was operated by the United States Attorney
for the Western District of Pennsylvania and responsible for looking at joint drug task
forces. He has an Associate’s Degree in Public and Police Administration, Bachelor’s
Degree in Administration of Justice and Sociology, Masters of Science in Criminal
Justice, and is a Doctor of Philosophy. Furthermore, he has testified in more than 800
cases in forty states involving policies, procedures, supervision, discipline, hiring, and
retention. (Docket No. 99, Page 3-4.)
The Court’s Analysis on Admissibility of McCauley’s Testimony
A. Portions of Testimony that are Admissible and Inadmissible
The Court has read McCauley’s report, (Docket No. 99-3), and supplemental
report. (Docket No. 99-4.) To summarize, McCauley will testify generally about police
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administration, specifically about ways in which officer discretion is limited. As to this
case in particular, McCauley will testify that Kentucky State Police General Order OMC-6 was applicable and was violated.
He will also comment on the police
practices/administration in this case compared to generally accepted police practices.
He also alleges that Plaintiff’s constitutional rights were violated and probable cause did
not exist. Finally, he appears to accept Plaintiff’s story as to how the events transpired
(implicitly, and sometimes explicitly, commenting on the credibility of others).
The Court will not permit McCauley to testify to anything that will ultimately be
a question of law or a jury question in this case, such as probable cause or whether
Womack’s constitutional rights were violated.3 See, e.g., Damiani v. Momme, 2012 WL
1657920, *2 (E.D. Pa. May 11, 2012) (“Nonetheless, to allow Dr. McCauley to offer his
opinion that the officers' conduct was unnecessary, punitive, and abusive answers the
very question tasked to the jury, and the Court will not permit an expert to invade the
province of the jury”)). The Court will also not permit testimony as to who he believes
is credible or what side of the story he believes is the truth.
However, the Court will permit him to testify as to whether or not General Order
OM-C-6 applied and, if it did apply, whether it was violated.4 The Court is aware that a
violation of a General Order is not per se a constitutional violation. Smith v. Freland,
954 F.2d 343, 347-48 (6th Cir. 1992). While violation of the General Order is not a
constitutional violation, Plaintiff seems to argue it is probative as to the existence of a
“were the product of their reckless indifference to Mr. Womack’s constitutional protections.” (Docket No.
99-3; Page 8.) “was highly likely to . . . jeopardize Mr. Womack’s legal-constitutional protections.” Id. “the
existence of probable cause was absent.” (Docket No. 99-3, Page 11.)
4 The Court notes that Defendant is free to, and it appears is planning to, present a qualified witness that will
testify that this General Order was not applicable in this case.
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conspiracy. The Court has dismissed the conspiracy charge. In doing so, it assumed the
admissibility of Dr. McCauley’s opinion that the General Order was applicable and
violated. In the end, the Court found there was insufficient evidence to support the
The Court will also permit him to give his professional opinion on the police
operations and administrative practices in this case, as compared with generally
accepted police administrative and operational practices. The Court considered this
evidence in ruling on the motions for summary judgment.
Essentially, the Court will permit Dr. McCauley to testify as long as his opinions
are related to police procedures and do not invade the province of the jury by embracing
an ultimate issue to be decided by the trier of fact or the province of the Court by
commenting on an issue of law. See, e.g., Nance v. City of Newark, 2010 WL 2483747,
*5 (D.N.J. June 4, 2010).5 Accordingly, Dr. McCauley will be permitted to testify in
accordance with this Order.
B. Addressing the Parties’ Substantive Arguments
Because the Court has already stated it will not be allowing certain portions of
McCauley’s testimony, many of the parties’ substantive arguments no longer need to be
addressed. However, to the extent the arguments concern any of the admissible portions
“Other portions of Dr. McCauley's report, however, are appropriate. For example he catalogues what he
considers to be disparate treatment experienced by Nance (e.g., differences in the discipline experienced by
Nance when compared to other officers). Dr. McCauley also assesses whether the department violated
internal affairs procedures under the facts of this case, and observes the results of the various charges
brought against Plaintiff. Under similar facts, Dr. McCauley has been permitted to testify.” Nance v. City of
Newark, 2010 WL 2483747, *5 (D.N.J. June 4, 2010) (citations omitted)).
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of the testimony--the General Order and comparison with generally accepted police
practices--the Court will address those arguments.
Defendants argue the issue of McCauley’s qualification is very similar to the
qualification issue presented in Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994),
and therefore McCauley should not be permitted to testify.6 They argue the takeaway
from that case is that an expert either needs formal training or firsthand experience to
lay the foundation for his testimony. Id. at 1349. Defendants assert that McCauley, like
Postill from Berry, may be qualified in the “abstract,” but he is not qualified to give an
opinion on specific issues such as the interpretation and application of Kentucky State
Police General Orders, narcotics investigation, or appropriate supervision of narcotics
detectives. Id. at 1351-52.
On the other hand, Plaintiff cites cases where experts similar to McCauley, ones
with more academic backgrounds, were permitted to testify about a discrete aspect of
police practices. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 908 (6th Cir.
2004); Toon v. City of Hopkinsville, 5:09-CV-37 (W.D. Ky. April 14, 2011) (permitting
university professor to testify that the amount of force used likely exceeded police
department policies, but not to issues of probable cause and excessive force). We agree
with Plaintiff, similar to the expert in Toon, McCauley’s education, teaching,
memberships, publications, and prior qualifications as an expert in cases involving
issues in the instant case make him qualified to give certain portions of his testimony.
Defendants also assert that McCauley’s opinion is not based on sufficient facts or data because he did not
review the preliminary hearing, grand jury hearing, or the criminal trial of Plaintiff Womack. (Docket No. 88,
Page 13.) This is not a basis to object to his testimony, other than the probable cause portion. However, as
discussed above, because the Court will not permit McCauley to testify as to probable cause, it is not
necessary for the Court to consider this objection by Defendants.
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Champion demonstrates why Berry is not applicable in this situation and was a unique
We did not hold that an individual cannot ever testify as an expert
about some aspect of police affairs. Rather, the holding in Berry
reasoned that unqualified individuals could not broadly testify
about an area in which they possessed no specialized knowledge.
While “police practices” in the broadest sense of the phrase may
not be a field, surely criminology is.
Indeed, the chief reason for our decision in Berry was that the
expert's credentials demonstrated that he had no specific expertise
about police activities. He had limited experience, given that he
was appointed as a deputy sheriff, a post that required almost no
qualifications, and he had been fired twice from the position.
Furthermore, he lacked any formal training or experience on the
subject of criminology or police actions. Compounding the
problem was his ungrounded and methodologically flawed
testimony regarding what effect the City of Detroit's procedural
shortcomings would have upon the future conduct of 5,000 police
officers who would be confronted with a diverse and unpredictable
array of situations in which force would be used.
Champion, 380 F.3d 893, 908 (6th Cir. 2004). Champion also held it permissible for an
expert to testify about the specific training the officers received and that the officers’
alleged actions violated nationally recognized police standards governing excessive
force. Id. at 908-09.
Defendant’s reply brief attempts to distinguish Champion by pointing out that
the expert had experience that was specific to the issue before the Court—the use of
force during the course of an arrest.7 (Docket No. 113, Page 3.) Essentially, Defendant
would require an expert to have experience specific to the issue before the Court. In
Defendants make the same argument with respect to the Toon case (involving excessive force): “As opposed
to McCauley, Cox had taught several courses including Supervision of Police Personnel, Police
Administration, Human Relations in Policing and Police Related violence. Unlike McCauley, Cox had taught
areas which were specific to the issue before the Court.” (Docket No. 113, Page 4.) However, as established
below, McCauley is sufficiently qualified for certain portions of his testimony.
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this case, Defendant would require that an expert have specific experience in narcotics
investigation and the supervision of narcotics detectives. 8
To some degree, this analysis all depends on how one delineates the “specific
issue” before the Court and the requisite “experience” that issue requires.
arguably not as “ideal” an expert as the one in Champion, the Court finds McCauley’s
credentials are nonetheless “specific” enough to qualify him to testify. Nothing in
Champion requires the high level of “specific” experiences Defendant argues for,
namely experience in narcotics investigation and the supervision of narcotics detectives.
In fact, McCauley possesses the “formal training or experience on the subject of
criminology or police actions” that Champion implied is sufficient for purposes of
expert qualification in this area. Champion, 380 F.3d 893, 908 (6th Cir. 2004).
The exact experience Defendant argues for is unnecessary for testimony on
whether a General Order applied and was complied with. That is a determination
management/supervisors of law enforcement would presumably make on a daily basis,
and one that McCauley is qualified to comment on given his experiences. Furthermore,
he is also qualified to comment on how the actions in this case compared with generally
accepted police practices, given his expertise in police management and supervision.
While declining to list all of his relevant credentials and experiences that
assisted the Court in making its determination, the Court notes McCauley has been a
Professor of Criminology and Chairman of a Department of Criminology. He has been
a Captain with the Highspire Borough Police and a diplomate of the American Board of
Defendants also assert McCauley’s opinion is not based on a reliable methodology. (Docket No. 88, Page
14.) However, since the Court will only allow testimony as to the General Order and comparison of the
police practices in this case to generally accepted practices, that argument is not applicable.
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Law Enforcement Experts. He has lectured on police management and been on several
task forces/boards for the purpose of implementing law enforcement policies. He also
has written and lectured on police management and policies. (See Docket No. 88-2.)
Accordingly, consistent with the above opinion, the Court will GRANT in part,
as to portions of testimony embracing ultimate issues to be decided by the trier of fact
or the Court, and DENY in part, as to testimony concerning Kentucky State Police
General Orders and how the police practices/administration in this case compared to
generally accepted practices, consistent with this opinion.
IT IS SO ORDERED.
November 8, 2013
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