SADULSKY v. TOWN OF WINSLOW et al
Filing
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ORDER denying 85 Motion in Limine to Preclude Plaintiffs from Introducing Evidence of Taser Manufacturer's Recommendations; mooting in part granting in part and denying in part 86 Motion in Limine to Preclude Testimony from Plaintiffs' Witnesses not Present at Incident; granting in part and denying in part 87 Motion in Limine to Exclude Certain Expert Testmony of Melvin Tucker. By MAGISTRATE JUDGE JOHN H. RICH III. (jlg)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WILLIAM P. SADULSKY and
SANDRA SADULSKY,
Plaintiffs
v.
HALEY L. FLEMING,
Defendant
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No. 1:14-cv-01-JHR
MEMORANDUM DECISION AND ORDER ON MOTIONS IN LIMINE
In this action alleging that the defendant, Winslow police officer Haley L. Fleming, used
excessive force against plaintiff William P. Sadulsky and negligently caused plaintiff Sandra
Sadulsky emotional distress, Fleming has filed three motions in limine (i) to preclude the plaintiffs
from introducing evidence of Taser manufacturer recommendations, (ii) to bar testimony of
witnesses not present during the incident at issue, and (iii) to preclude certain testimony of the
plaintiffs’ expert, Melvin Tucker. See Defendant’s Motion in Limine To Preclude Plaintiffs From
Introducing Evidence of Taser Manufacturer’s Recommendations (“Taser Motion”) (ECF No. 85);
Defendant’s Motion in Limine To Preclude Testimony From Plaintiffs’ Witnesses Not Present at
Incident (“Witness Motion”) (ECF No. 86); Defendant’s Motion in Limine To Exclude Certain
Expert Testimony of Melvin Tucker (“Expert Motion”) (ECF No. 87).
For the reasons that follow, the Taser Motion is denied; the Witness Motion is mooted in
part as to one witness, former Chief Jeffrey P. Fenlason, granted in part to the extent that the
remaining five witnesses are permitted to testify solely for purposes of impeachment, and
otherwise denied; and the Expert Motion is granted in part with respect to any testimony defining
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the term “consensual encounter,” expressing an opinion that Fleming’s interaction with the
plaintiffs constituted such an encounter, or offering an opinion that Fleming’s use of force was
unreasonable, and otherwise denied. To the extent I have denied the motions, my denial is without
prejudice to Fleming’s interposition of objections at trial consistent with this order.
I.
Discussion
A. Taser Motion
Fleming seeks to preclude the plaintiffs from introducing evidence of the Taser
manufacturer’s training or certification recommendations or requirements on the bases that that
evidence is irrelevant, unduly prejudicial, and could confuse the jury. See Taser Motion at [2]-[4].
On the showing made, the motion is denied.
Fleming reasons that, because this court ruled on summary judgment that the Town of
Winslow (“Town”) was not liable on a failure-to-train theory pursuant to 42 U.S.C. § 1983 or the
Maine Civil Rights Act despite the Town’s failure to require annual training in Taser usage as
recommended by the manufacturer, evidence regarding the manufacturer’s recommendations or
requirements is irrelevant as to his conduct. See id. at [2]-[3]. However, it is a separate question
whether Fleming is liable for his alleged use of excessive force against plaintiff William Sadulsky,
and the court did not rule that the manufacturer evidence was irrelevant as to any defendant. See
Recommended Decision on Motion for Partial Summary Judgment (“Summary Judgment Ruling”)
(ECF No. 55) at 18-19; Order Affirming the Recommended Decision of the Magistrate Judge (ECF
No. 58). While, as Fleming points out, see Taser Motion at [2], the court noted that the State of
Maine does not require annual Taser training, see Summary Judgment Ruling at 19, that goes to
the weight, rather than the admissibility, of the Taser manufacturer evidence.
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To the extent that Fleming seeks preclusion of the Taser manufacturer evidence on the
basis that, pursuant to Federal Rule of Evidence 403, any probative value is outweighed by the
danger of unfair prejudice to him and/or confusion of the jury, see Taser Motion at [3]-[4], I decline
to bar the evidence on that ground in advance of trial. Fleming is free to raise the objections that
are the subject of this motion (both relevance and Rule 403) if and when any Taser manufacturer
evidence is offered at trial, at which time I will rule on its admissibility in the trial context.
B. Witness Motion
Fleming seeks to preclude the testimony of six witnesses not present at the time of the
incident at issue on the bases that their testimony would be irrelevant, unduly prejudicial, and/or
confusing to the jury and that the plaintiffs failed to include them in their initial disclosures, instead
disclosing them for the first time in their final pretrial memorandum, well past the close of
discovery. See Witness Motion at [1]-[4]. The motion is mooted in part, as to former Chief
Fenlason, by the plaintiffs’ representation that he will not be called. See Plaintiffs’ Response to
Defendant’s Motion To Preclude Testimony From Plaintiffs’ Witnesses Not Present at Incident
(“Witness Response”) (ECF No. 97) at 3. I otherwise grant the motion in part, to the extent that,
in view of the plaintiffs’ failure to timely disclose these witnesses, they shall be permitted to call
the remaining five solely for impeachment purposes. See Fed. R. Civ. P. 26(a)(1)(A)(i).1 I decline
to bar testimony of these witnesses in advance of trial on the bases that it is irrelevant, unduly
prejudicial, and/or confusing to the jury. Fleming is free to raise any such objections if and when
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The plaintiffs argue that the active participation of Winslow Town Manager Michael Heavener in this case, which
included answering interrogatories on behalf of the Town, “should have cued the [d]efendant that he would be a
potential witness.” Witness Response at 3. The plaintiffs fail to explain how Heavener’s work on behalf of the Town,
which has been terminated as a party, should have put Fleming, the remaining defendant, on notice that the plaintiffs
intended to call Heavener as a witness with respect to Fleming’s conduct.
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the impeachment evidence is offered at trial, at which time I will rule on its admissibility in the
context of trial.2
C. Expert Motion
Lastly, Fleming seeks pursuant to Federal Rule of Evidence 702 to exclude two categories
of expected testimony by Tucker: (i) testimony regarding alleged violations of the Town’s
electronic weapons control (“EWC”) policy and Maine Criminal Justice Academy (“MCJA”)
standards, on the basis that Tucker lacks sufficient foundation to testify as to those matters, and
(ii) testimony regarding the “consensual encounter” and the unreasonableness of the use of force
pursuant to the Fourth Amendment, on the basis that it would constitute inadmissible instruction
on the law. See Expert Motion at [2]-[6].
I decline to exclude the EWC and MCJA testimony for lack of adequate foundation.
“When the adequacy of the foundation for . . . expert testimony is at issue, the law favors vigorous
cross-examination over exclusion.” Zuckerman v. Coastal Camps, Inc., 716 F. Supp.2d 23, 28
(D. Me. 2010) (citation and internal quotation marks omitted). “If the factual underpinnings of the
expert’s opinions are in fact weak, that is a matter affecting the weight and credibility of [the
expert’s] testimony.” Id. (citation and internal punctuation omitted). “It is only if an expert’s
opinion is so fundamentally unsupported that it can offer no assistance to the jury that such
testimony must be excluded on foundational grounds.” Id.
Tucker’s curriculum vitae indicates that he was an adjunct professor of criminal justice at
the University of Maine at Augusta from 2000 to 2004 and has provided criminal justice training
The plaintiffs’ description of the witnesses’ expected testimony indicates that it would bear largely, if not entirely,
on Fleming’s motive on the day in question. See Witness Response at 2-3. At least as concerns the question of
whether Fleming used excessive force, his motives are irrelevant. See, e.g., Raiche v. Pietroski, 623 F.3d 30, 36 (1st
Cir. 2010) (“We analyze excessive force claims according to the constitutional touchstone of objective reasonableness,
so we do not consider an officer’s subjective intent or motivation.”) (citations and internal quotation marks omitted).
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at the MCJA. See Appx. A (commencing on page 11 of ECF No. 49-2) to Affidavit of Melvin L.
Tucker (“Tucker Aff.”) (commencing on page 6 of ECF No. 49-2), attached to Plaintiff[s’]
Response to Defendants’ Statement of Material Facts (“Plaintiffs’ Opposing SMF”) (ECF No. 491), attached to Plaintiffs’ Response to Defendants’ Motion for Partial Summary Judgment
(“Opposition”) (ECF No. 49), Page ID ## 515, 520-21. This is a sufficient foundation to withstand
the exclusion of testimony regarding the MCJA.
Fleming proffers two additional bases for excluding the MCJA-related testimony, neither
of which I find persuasive. First, he argues that the testimony should be excluded because Tucker
indicated in his report that a former defendant, Michael Michaud, stood William Sadulsky up after
handcuffing him in a manner that violated MCJA training standards. See Expert Motion at [4][5]; Expert Report of Melvin L. Tucker (“Tucker Report”) (ECF No. 35-2), attached to [Additional
Attachments] (ECF No. 35), at 9. The plaintiffs respond that Tucker will correct his report, either
through a revision or testimony, to reflect his current understanding that Fleming, rather than
Michaud, engaged in this conduct. See Plaintiff’s Response to Defendant’s Motion To Exclude
Certain Expert Testimony of Melvin Tucker (“Expert Response”) (ECF No. 95) at 6. I agree with
the plaintiffs, see id., that Tucker’s revision goes to the weight of his opinion, not its admissibility,
and can be addressed through cross-examination.
Second, Fleming asserts that Tucker’s testimony about the standards taught at the MCJA
is necessarily hearsay because Tucker has not taken or taught a class at the MCJA related to the
mechanics of arrest and has merely reviewed written materials. See Expert Motion at [5]. As the
plaintiffs rejoin, see Expert Response at 5-6, an expert “may base an opinion on facts or data in
the case that the expert has been made aware of[,]” and such facts or data need not be admissible
for an opinion to be admitted “[i]f experts in the particular field would reasonably rely on those
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kinds of facts or data in forming an opinion on the subject,” Fed. R. Evid. 703. Presumably,
training standards set forth by a state’s criminal justice academy are the kinds of facts or data on
which an expert in this field would reasonably rely in forming an opinion, and Fleming identifies
no reason why they would not be.
Turning to Fleming’s argument that Tucker’s testimony as to the EWC lacks sufficient
foundation, I reach the same conclusion as I did with respect to the MCJA testimony. Tucker’s
review of the Town’s EWC policy, together with his experience, education, and training in law
enforcement, including the use of electronic weapons, see Tucker Aff. ¶ 3; Tucker Report at 2,
provide a sufficient foundation to withstand the exclusion of testimony regarding the EWC.
Fleming offers one additional basis for excluding Tucker’s testimony regarding the ECW:
that, pursuant to Federal Rule of Evidence 403, any probative value would be outweighed by the
danger of undue prejudice to him and/or confusion of the jury, which could be misled to believe
that any violation of Town policy is necessarily a constitutional violation. See Expert Motion at
[3]-[4]. I decline to bar Tucker’s testimony regarding the ECW on this basis in advance of trial;
however, Fleming is free to renew this objection if and when such evidence is offered at trial, at
which time I will rule on its admissibility in the context of trial.
Fleming finally seeks to bar certain testimony on the basis that it consists of nothing more
than legal conclusions. See id. at [5]-[6]. I agree that Tucker should not be permitted to define the
term “consensual encounter” or testify that Fleming’s interaction with the plaintiffs constituted
such an encounter, Tucker Report at 4, which would invade the province of the court, see, e.g.,
Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 100 (1st Cir. 1997) (“Each courtroom comes
equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury
on the relevant legal standards.”) (citation and internal quotation marks omitted), or testify that
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Fleming’s use of force was unreasonable, see Tucker Report at 5, which would invade the province
of the jury, see, e.g, M.H. v. County of Alameda, Case No. 11-cv-02868-JST, 2015 WL 54400, at
*2 (N.D. Cal. Jan. 2, 2015) (“Despite the fact that [Federal] Rule [of Evidence] 704 generally
permits expert testimony embracing an ultimate issue, courts preclude expert testimony as to what
is reasonable, in the context of whether excessive force was employed[,]” which would “invad[e]
the province of the jury.”) (citations and internal punctuation omitted); Burger v. Mays, 176 F.R.D.
153, 156-57 (E.D. Pa. 1997) (same); see also, e.g., Hutchison v. Cutliffe, Civil No. 04-77-B-W,
2004 WL 5524566, at *2 (D. Me. Nov. 10, 2004) (barring expert from testifying about “the
ultimate reasonableness of the degree of force applied” because, “once a jury decides which set of
facts it believes, it will be within their ability as lay persons to decide whether the use of force was
reasonable or not”) (citation and internal quotation marks omitted).
However, to the extent that Fleming seeks a broader ban in advance of trial on testimony
regarding those subject matters, his motion is denied. See, e.g., M.H., 2015 WL 54400, at *2
(“[T]he cases also consistently hold that while an expert cannot testify as to . . . ‘objective
reasonableness’ using th[at] specific term[], . . . they may opine as to . . . generally accepted law
enforcement standards, custom, or practice. Thus, experts on both sides may testify as to
appropriate standards of care – which go to the ultimate issue[] of . . . what conduct is ‘objectively
reasonable’ – so long as they do not use th[at] ‘judicially defined’ and ‘legally specialized’
term[].”) (citations omitted). Fleming is free to object at trial to any testimony of Tucker that he
believes invades the province of either the court or the jury, at which time I will rule on its
admissibility.
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II.
Conclusion
For the foregoing reasons, the Taser Motion is DENIED; the Witness Motion is MOOTED
in part as to witness Fenlason, GRANTED in part to the extent that the remaining five witnesses
are permitted to testify solely for purposes of impeachment, and otherwise DENIED; and the
Expert Motion is GRANTED in part with respect to any testimony defining the term “consensual
encounter,” expressing the opinion that Fleming’s interaction with the plaintiffs constituted such
an encounter, or offering the opinion that Fleming’s use of force was unreasonable, and otherwise
DENIED. To the extent I have denied the motions, my denial is without prejudice to the
interposition of objection(s) at trial within the parameters outlined above in my discussion of the
individual motions.
Dated this 4th day of March, 2016.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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