IRISH et al v. STATE OF MAINE et al

Filing 68

ORDER ON MOTION TO EXCLUDE D.P. VAN BLARICOM dismissing without prejudice 59 Motion to Exclude By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRITTANY IRISH, individually
and as personal representative of
the estate of KYLE HEWITT,
deceased, and KIMBERLY IRISH,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
DETECTIVE JASON FOWLER, et al. )
)
Defendants.
)

1:15-cv-00503-JAW

ORDER ON MOTION TO EXCLUDE D.P. VAN BLARICOM
The Court denies defendants’ motion to exclude the expert testimony of D.P.
Van Blaricom, concluding that the proposed expert testimony is generally proper
under Daubert and Kumho 1 and that any inadequacies are best tested through the
traditional tools of trial work: “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof.” Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 596 (1993).
I.

BACKGROUND
This case arises out of a terrible tragedy that took place in Aroostook and

Penobscot Counties, Maine, in July of 2015, when Anthony Lord, the former boyfriend
of Brittany Irish, entered her house, shot and killed her new boyfriend, shot and
grievously wounded her mother, and abducted her. Ms. Irish, her mother, and the
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999).
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estate of her deceased boyfriend filed a civil action against the state of Maine, the
Maine State Police, and a number of police officers on the ground that, despite explicit
warnings from Ms. Irish, the police notified Mr. Lord that she had gone to the police
to complain that he had sexually assaulted her and then the Defendants failed to
protect them from the ensuing harm.
On March 1, 2017, the Court of Appeals for the First Circuit vacated this
Court’s dismissal of the individual defendants and remanded the case for discovery
on whether the individual defendants violated “accepted norms of police procedure”
and whether they acted “despite foreseeing the harm” to the Plaintiffs. Irish v. Maine,
849 F.3d 521, 528 (1st Cir. 2017). The First Circuit wrote that the answers to these
questions will “speak to whether the officers acted in deliberate indifference to Irish’s
safety, so much so that their conduct shocks the conscience.” Id.
Following the remand, the parties engaged in discovery and after the Court
consulted with the parties, it resolved that it would be more efficient to rule on any
Daubert/Kumho motions before the parties briefed dispositive motions. Order (ECF
No. 58). The Plaintiffs designated D.P. Van Blaricom as their police practices expert
on June 13, 2017 and amended his report on October 11, 2018. Defs.’ Mot. to Exclude
D.P. Van Blaricom Attach. 1, Report of Pls.’ Police Practices Expert (ECF No. 59). On
December 14, 2018, the Defendants filed a motion to exclude the testimony of D.P.
Van Blaricom on the grounds that he “is not qualified and his opinions are not
relevant, helpful, or grounded in a reliable methodology.” Defs.’ Mot. to Exclude D.P.
Van Blaricom (ECF No. 59) (Defs.’ Mot.). On January 11, 2019, the Plaintiffs filed a

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response. Pls.’ Obj. to Defs.’ Mot. to Exclude D.P. Van Blaricom (ECF No. 62) (Pls.’
Opp’n). On January 25, 2019, the Defendants filed a reply. Defs.’ Reply in Support
of Mot. to Exclude D.P. Van Blaricom (ECF No. 67) (Defs.’ Reply).
II.

D.P. Van Blaricom
A.

Curriculum Vitae: A Summary
1.

Education

D.P. Van Blaricom graduated with a Bachelor of Arts degree magna cum laude
from the University of Washington in 1973. Def.’s Mot. Attach. 1, Ex. A at 11 (Van
Blaricom CV). He received a Master of Public Administration from Seattle University
in 1976. Id. He is a graduate of the Federal Bureau of Investigations National
Academy in Law Enforcement Executive Development programs. Id. He holds a
certificate in forensics awarded in 2000 from the University of Washington and he
has been certified as a litigation specialist by Americans for Effective Law
Enforcement. Id.
2.

Police Experience

Mr. Van Blaricom served twenty-nine years in municipal policing, with the last
eleven as Chief of Police in Bellevue, Washington, then the state of Washington’s
“fourth largest and fastest growing city.” Id. at 10.
3.

Experience as a Police Practices Expert

Mr. Van Blaricom states that he has served as a police practices expert in more
than 1,900 matters of police-related litigation. Id. at 3, 9. He lists forty-six states
where he has been retained as an expert in litigation involving police practices and

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states that he has testified in “several hundred depositions, federal court trials, state
court trials and arbitrations.” Id. at 9. He is a member of several professional
associations. Id. at 15.
B.

D.P. Van Blaricom’s Expert Opinions: A Summary

Mr. Van Blaricom opines that Maine State Police (MSP) “Detectives Perkins
and Fowler did not exercise a reasonable standard of care in their investigation of
victim’s crime report.” Id. at 6. He stated that when investigating complaints of
sexual assault or domestic violence, the priorities are to “[b]elieve the victim” and to
“[p]rotect the victim from further violence.”

Id.

Mr. Van Blaricom wrote that

Detectives Perkins and Flower violated these two priorities. Id. He also stated that
the “first priority is to locate the suspect and take him into custody.” Id. Mr. Van
Blaricom wrote that, in his view, the police in this case assumed a special duty to
plaintiffs, which they failed to fulfill.” Id.
III.

THE POSITIONS OF THE PARTIES
A.

The Defendants’ Motion
1.

D.P. Van Blaricom’s Expertise

The Defendants maintain that Mr. Van Blaricom is not qualified to express
opinions about police procedure. Defs.’ Mot. at 4. The Defendants concede that Mr.
Van Blaricom “may have enough experience to opine about certain areas of police
practice.” Id. But they assert that he “does not have sufficient expertise regarding
conducting investigations of sexual assaults and other major crimes.” Id. They point
out that Mr. Van Blaricom has “neither personally conducted a sexual assault

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investigation nor received any training in how to conduct such an investigation.” Id.
They observe that Mr. Van Blaricom has not worked in law enforcement since 1985.
Id. The Defendants argue that “[g]iven his limited and outdated experience, [Van]
Blaricom is not qualified to opine on whether MSP detectives properly investigated
Brittany’s sexual assault and kidnapping allegations.” Id.
2.

D.P. Van Blaricom’s
Unreliable

Opinions

are

Irrelevant

and

The Defendants first attack Mr. Van Blaricom’s opinion about whether
Detectives Fowler and Perkins “exercised a ‘reasonable standard of care’ when they
were investigating [Ms. Irish’s] sexual assault and kidnapping accusations.” Id. at 5.
The Defendants point out that the Plaintiffs are bringing only § 1983 claims, not state
law negligence or malpractice claims. Id. They argue that the issue for a § 1983
claim is whether the defendants “violate[d] clearly established statutory or
constitutional rights of which a reasonable person would know.” Id. (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The Defendants acknowledge that the First Circuit remanded this case to
determine whether they “violated accepted norms of police procedure,” id. (quoting
Irish, 849 F.3d at 528, but they maintain that Mr. Van Blaricom’s opinion is “not
helpful because he does not opine that the defendant violated such norms.” Id. Even
when Mr. Van Blaricom measures the Defendants’ conduct against standards
established by the International Association of Chiefs of Police (IACP), the
Defendants argue that Mr. Van Blaricom conceded that the IACP standards
themselves expressly state that they are not intended to be a national standard. Id.
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Instead, police officers are required, the Defendants say, to follow their own
department guidelines. Id. Moreover, the Defendants state that Mr. Van Blaricom
never identified any “obvious departure” that either Defendant made from the IACP
model policies. Id. at 5-6.
The Defendants acknowledge that Mr. Van Blaricom referred to an MSP policy
entitled “Maine State Police Policy Regarding Response to and Investigation of
Domestic Violence Incident,” the so-called “M-4 policy.”

Id. at 6.

Here, the

Defendants claim that a factfinder “does not need help from an expert to assess
whether the defendants departed from it.” Id. at 7.
The Defendants next maintain that Mr. Van Blaricom’s opinions are
unreliable. Id. They argue that he “selectively picked” facts and assumed them to be
true, and then “arbitrarily rejected” other facts and wrongly assumed them to be
false. Id. They cite the opinions of other courts that have called into question Mr.
Van Blaricom’s methodology. Id. at 7-9 (citing cases). They recite specific instances
where they say Mr. Van Blaricom selectively manipulated the facts in this case. Id.
at 9-10.
Finally, the Defendants argue that Mr. Van Blaricom should not “be allowed
to opine that police officers assume a duty to protect people from private harm when
they promise protection.” Id. at 10. Citing First Circuit authority, the Defendants
contend that the First Circuit has declined to impose liability on law enforcement
officers in similar circumstances. Id. (citing Rivera v. Rhode Island, 402 F.3d 27, 3738 (1st Cir. 2005)).

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B.

The Plaintiffs’ Response

In their opposition, the Plaintiffs return to the First Circuit opinion in this
case. Pls.’ Opp’n at 1-2. They quote the Irish opinion:
If discovery reveals that the officers’ actions violated accepted norms of
police procedure or that they acted despite foreseeing the harm to Irish,
it may strengthen the plaintiffs’ argument that the officers exacerbated
the danger that Lord pose. It may also speak to whether the officers
acted in deliberate indifference to Irish’s safety, so much so that their
conduct shocks the conscience.
Id. at 1 (quoting Irish, 849 F.3d at 528). Quoting the Irish decision, they further say
that the First Circuit concluded that “it was important to determine . . . what steps
the officers took to protect Brittany Irish”:
More specifically, based on this record, we do not know the steps, if any,
that officers should take when they have reason to believe that an
alleged perpetrator is violent and likely to retaliate against a victim who
reports such serious crimes . . .. [V]iolation of protocol and training is
relevant both to the substantive due process and qualified immunity
standards.
Id. at 2 (quoting Irish, 849 F.3d at 528). They then point to specific questions that
the First Circuit deemed relevant to the Defendants’ potential liability. Id. at 2-3. In
fact, the Plaintiffs say that they tailored “all their discovery efforts to follow the
roadmap set forth by the First Circuit.” Id. at 3.
1.

Qualifications

The Plaintiffs review Mr. Van Blaricom’s background and experience as an
expert witness and pronounce him “qualified to render an opinion on the actions of
defendant detectives in this case involving protocols for both domestic violence and
gross sexual assault.” Id. at 7-9.

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2.

Methodology

The Plaintiffs explain Mr. Van Blaricom’s methodology as being “simply one of
comparison,” comparing “the action and inactions of the detectives to the standards
in the [MSP] Policies, other national law enforcement standards and his experiences
from a long career in law enforcement.” Id. at 10. They say that courts have routinely
concluded that this type of comparison is “a reliable methodology” under Daubert. Id.
at 10-11 (citing cases). Indeed, the Plaintiffs cite court cases that have rejected
similar attacks on Mr. Van Blaricom’s methodology. Id. at 11.
3.

Relevance

Responding to the Defendants’ claim that Mr. Van Blaricom’s opinions are not
relevant to § 1983 issues, the Plaintiffs say that the Defendants “have forgotten the
roadmap provided by the First Circuit in this case.” Id. at 12. Specifically, they say,
the First Circuit remanded the case to determine whether the Defendants complied
with the norms of police procedure, which is relevant to the “deliberate indifference”
and the “shocks the conscience” analyses. Id. They point to cases where other courts
have concluded that the reasonableness of law enforcement actions is relevant to a §
1983 standard. Id. at 13-14. The Plaintiffs defend Mr. Van Blaricom’s references to
the IACP model policies as reference material. Id. at 15. Finally, they reiterate the
view that the Defendants’ responses to the Plaintiffs’ demands for protection imposed
upon the Defendants a special duty to protect them. Id. at 16.
C.

Defendants’ Reply

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In their response, the Defendants point out that Mr. Van Blaricom does not
express any opinions about either the Maine statutory or MSP policy requirements
for protecting victims of domestic violence. Defs’ Reply at 1-2. In the Defendants’
words, “[w]hile the plaintiffs are certainly free to argue that the defendants violated
the statute and policy, Van Blaricom himself does not offer such an opinion.” Id. at
2. Next, the Defendants maintain the neither the statute nor the MSP policy applies
here because the Defendants did not arrive at the scene of a domestic violence
incident. Id. They say that Mr. Van Blaricom never references 19-A M.R.S. § 4012(6)
and only obliquely mentions the MSP M-4 policy. Id. The Defendants criticize Mr.
Van Blaricom for offering “somewhat conflicting opinions about whether defendants
violated the M-4 policy.” Id. at 3-4. They reiterate their earlier point about the
inapplicability of the IACP model policies. Id. at 4-5. In short, the Defendants
conclude, Mr. “Van Blaricom’s testimony is irrelevant and unhelpful because he does
not identify any violations of established police protocols.” Id. at 5. The Defendants
close by saying that Mr. Van Blaricom should not be allowed to offer an opinion on a
matter of law, namely the applicability and existence of the “gratuitous assumption
of duty” theory.
D.

Irish v. Maine, 849 F.3d 521 (1st Cir. 2017)

On March 1, 2017, the Court of Appeals for the First Circuit vacated this
Court’s order dismissing the Plaintiffs’ lawsuit and remanded the case for discovery.
Irish v. Maine, 849 F.3d at 529. The Irish Court extensively discussed its rationale
and it assists this Court’s analysis of the pending motion.

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The Irish Court discussed the Plaintiffs’ theory that contrary to Brittany Irish’s
earnest pleading, the Defendants in this case had created a danger by leaving a
voicemail message with Mr. Lord about her allegation that he had kidnapped, raped
and strangled her, and then refused to protect her despite the fact she had told the
police she suspected that Mr. Lord had just burned down their family barn. Id. at
524-25. Mr. Lord tracked Ms. Irish to her parents’ home, shot and killed her new
boyfriend, grievously wounded her mother, and abducted her. Id.
The First Circuit defined the “state-created danger” theory: when the state
“creates the danger to an individual, an affirmative duty to protect might arise.” Id.
at 525 (quoting Rivera v. Rhode Island, 402 F.3d 27, 34-35 (1st Cir. 2005) (citing
Deshaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189, 201 (1989)).
Although the First Circuit noted that at least “eight sister circuits have recognized
the existence of the state-created danger theory” and that the First Circuit “has
discussed the possible existence of the state-created danger theory,” the Irish Court
acknowledged that it has “never found it applicable to any specific set of facts.” Id.
at 526. If the state-created danger theory were applicable, to be successful in a claim
under 42 U.S.C. § 1983, a plaintiff would also have to prove a substantive due process
violation: “the state actions must shock the conscience of the court.” Id. (quoting
Rivera, 402 F.3d at 35). To determine whether a state actor’s actions have met this
high standard, the First Circuit wrote that one factor is whether “actors have an
opportunity to reflect and make reasoned and rational decisions, deliberately

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indifferent behavior may suffice.” Id. (quoting Rivera, 402 F.3d at 36) (citing Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 851-52 (1998)).
Assessing these legal issues in the factual context of this case, the First Circuit
was concerned about whether “there are standard police protocols that were violated”
by the Defendants. Id. The First Circuit observed that “[n]either party at oral
argument could provide any detail on acceptable police procedures or training, if any,
on how and when to notify the accused of the allegations that have been filed against
him or her under similar circumstances.” Id. at 527. In terms of police protocol and
procedure, the Irish Court was concerned about:
(1) the Defendants’ decision to leave a voice message despite the exboyfriend’s “foreseeable violent reaction,”
(2) the nature of the crimes they were investigating, namely violent
assault, rape, and threats to kill,
(3) any prior effort to calm down the ex-boyfriend or prevent him from
inflicting harm,
(4) what information the Defendants had about the veracity of Brittany
Irish’s allegations,
(5) what knowledge they possessed about Mr. Lord’s propensity for
violence,
(6) what they knew about the risk Mr. Lord would act on that propensity,

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(7) how much time the Defendants had spent with Brittany Irish to go
over her written statement in which she complained about Mr. Lord’s
strangling and raping her and threatening to kill her,
(8) whether the Defendants had contacted the local hospital to obtain
the results of the rape kit before leaving the voicemail message with Mr. Lord,
(9) whether the State Police had prior experience with Mr. Lord,
(10) whether the Defendants ran Mr. Lord’s name through the system
to determine whether he had any prior convictions,
(11) whether the Defendants had contacted the Bangor Police
Department which had referred Brittany Irish’s case to the State Police,
(12) whether the Defendants left the voicemail message on Mr. Lord’s
cellphone,
(13) whether the Defendants attempted to locate Mr. Lord after Brittany
Irish reported that Mr. Lord had burned down the family barn and after Mr.
Lord told his friend that “someone was going to die tonight,” and
(14) whether the Defendants had probable cause to arrest Mr. Lord, but
decided to leave the voicemail message instead.
Id. at 527-28.
After listing these issues, the First Circuit wrote that “[a]ll or some of the
answers to these questions may be pertinent to the substantive due process and
qualified immunity issues.” Id. at 528. The First Circuit stated:
If discovery reveals that the officers’ actions violated accepted norms of
police procedure or that they acted despite foreseeing harm to Irish, it
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may strengthen the plaintiffs’ argument that the officers exacerbated
the danger that Lord posed. It may also directly speak to whether the
officers acted in deliberate indifference to Irish’s safety, so much so that
their conduct shocks the conscience.
Id. The Irish Court went on to state:
[I]f discovery reveals that no protocols were violated, then the plaintiffs
may have a harder time surviving a 12(b)(6) motion. While the fact that
the officers did not take further discretionary steps to ensure Irish’s
safety may amount to negligence, mere negligence would be insufficient
to maintain a claim of substantive due process violation.
Id.
IV.

DISCUSSION
A.

Legal Standard

Federal Rule of Evidence 702 governs the admissibility of expert testimony:
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; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.
FED. R. EVID. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the Supreme Court designated trial judges as gatekeepers responsible for
determining whether Rule 702’s requirements are met in any given case. Id. at 597.
A judge exercising the gatekeeper role must “ensure that an expert’s testimony ‘both
rests on a reliable foundation and is relevant to the task at hand.’” United States v.
Vargas, 471 F.3d 255, 261 (1st Cir. 2006) (quoting Daubert, 509 U.S. at 597); see also
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999) (extending Daubert’s

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holding to technical and other specialized expert testimony). The inquiry under Rule
702 is a “flexible one.” Vargas, 471 F.3d at 261 (quoting Daubert, 509 U.S. at 594).
B.

Qualified as Expert

The Defendants’ main objection to Mr. Van Blaricom’s qualifications is his
asserted lack of “sufficient expertise regarding conducting investigations of sexual
assaults or other major crimes.” Defs.’ Mot. at 4. The Defendants also point to his
lack of recent experience as a law enforcement investigator. Id.
The Court disagrees with the Defendants. In Santos v. Posadas de Puerto Rico
Associates, Inc., 452 F.3d 59 (1st Cir. 2006), the First Circuit emphasized that
“experts come in various shapes and sizes; there is no mechanical checklist for
measuring whether an expert is qualified to offer opinion evidence in a particular
field.” Id. at 63; cf. United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987)
(explaining that “[e]xpertise is not necessarily synonymous with a string of academic
degrees or multiple memberships in learned societies” and emphasizing “the value of
extensive practical experience”). At the same time, a testifying expert “should have
achieved a meaningful threshold of expertise in the given area.” Hinton v. Outboard
Marine Corp., 828 F. Supp. 2d 366, 372 (D. Me. 2011) (internal citation omitted). “The
test is whether, under the totality of the circumstances, the witness can be said to be
qualified as an expert in a particular field through any one or more of the five bases
enumerated in Rule 702—knowledge, skill, experience, training, or education.”
Santos, 452 F.3d at 64 (citing United States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995)
and United States v. Paiva, 892 F.2d 148, 160 (1st Cir. 1989)). A trial judge has “broad

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discretionary powers in determining the qualification, and thus, admissibility, of
expert witnesses.” Vargas, 471 F.3d at 262.
In his resume, Mr. Van Blaricom describes himself as a “police practices
expert.” Van Blaricom CV at 10. Mr. Van Blaricom spent twenty-nine years “in
municipal policing with the last 11 as Chief of Police . . . in Bellevue, Washington.”
Id. Although he had last done so in 1973, Mr. Van Blaricom testified that he probably
personally investigated more than twenty sexual assault cases. Pls.’ Opp’n Attach.
2, Dep. upon Oral Exam. of D.P. Van Blaricom 34:3-22. (Van Blaricom Dep.). Mr.
Van Blaricom has “[t]estified in several hundred depositions, federal court trials,
state court trials and arbitrations.” 2 Id.
In the Court’s view, Mr. Van Blaricom’s background provides him with
sufficient experience, knowledge, training, and skill to qualify as an expert in police
procedure and protocol under Rule 702. The Defendants are, of course, free to explore
any claimed deficiencies in Mr. Blaricom’s expertise by “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof.”
Daubert, 509 U.S. at 596.

The Court is skeptical about one aspect of Mr. Van Blaricom’s resume. He states that he has
been “Recognized as an expert on the following issues and all of the cited appellate court decisions
were decided in favor of my client. 1. POLICE ADMINISTRATION, POLICY, PRACTICES,
PROCEDURES and STANDARDS OF CARE.”
To the Court’s surprise, Mr. Van Blaricom cited the First Circuit opinion in Irish v. Maine as
one of the cases in which an appellate court recognized him as an expert. Van Blaricom’s CV at 9. The
Court is perplexed. In its opinion, the First Circuit does not mention Mr. Van Blaricom, and it
overturned this Court’s granting of a motion to dismiss, which was based on the allegations in the
Plaintiffs’ Complaint, where Mr. Van Blaricom’s name is not mentioned. The Court does not see how
Mr. Van Blaricom can claim that in the Irish opinion, the First Circuit somehow recognized him as an
expert in police administration, policy, practices, procedures and standards of care.
2

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C.

Relevance and Reliability

Expert opinions are admissible if they are “relevant not only in the sense that
all evidence must be relevant [pursuant to Federal Rule of Evidence 402], but also in
the incremental sense that the expert’s proposed opinion, if admitted, likely would
assist the trier of fact to understand or determine a fact in issue.” Ruiz-Troche v.
Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir. 1988). In other words:
The fundamental question that a court must answer in determining
whether a proposed expert's testimony will assist the trier of fact is
“[w]hether the untrained layman would be qualified to determine
intelligently and to the best degree, the particular issue without
enlightenment from those having a specialized understanding of the
subject matter involved.”
United States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995) (quoting United States v.
Montas, 41 F.3d 775, 783 (1st Cir. 1994)).
A fair reading of the appellate opinion in Irish leads to the conclusion that the
First Circuit remanded this case to determine whether there were “violation[s] of
protocol and training.” Irish, 849 F.3d at 528. Issues of proper police procedure and
protocols when addressing the situation presented in this case “are not topics
ordinarily within the knowledge of the jury and thus are appropriate for expert
testimony.” First Marblehead Corp. v. House, 541 F.3d 36, 42 (1st Cir. 2008). The
Court views the Defendants’ objections to the details of Mr. Van Blaricom’s testimony
— whether and how he may refer to IACP model standards, whether his reference to
the MSP M-4 policy is sufficiently concrete, whether the general standards for
domestic violence investigations apply to the specific circumstances in the Irish case

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— as potential grounds for a motion in limine, objection at trial, or cross-examination,
but insufficient to rule Mr. Van Blaricom’s testimony inadmissible.
Nor is the Court convinced by the Defendants’ arguments about the reliability
of Mr. Van Blaricom’s testimony. A court must determine “whether the testimony
has a reliable basis in light of the knowledge and experience of the relevant
discipline.” Crowe v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007) (internal citation
omitted). An expert is permitted to testify on the basis of his experience. Brown v.
Wal-Mart Stores, Inc., 402 F. Supp. 2d 303, 308 (1st Cir. 2005) (citing Kumho Tire
Co., 526 U.S. at 156). However, “[i]f the [expert] witness is relying solely or primarily
on experience, then the witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis for the opinion, and how
that experience is reliably applied to the facts.” Id. The gatekeeper role requires the
judge “to ensure that expert opinions are not ‘connected to existing data only by the
ipse dixit of the expert.’” Knowlton v. Bankers Life & Cas. Co., 882 F. Supp. 2d 129,
131 (D. Me. 2012) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
Without analyzing each of the Defendants’ objections, the Court sees their
objections to Mr. Van Blaricom’s selective use of facts and his supposed ipse dixit
analysis to be matters for cross-examination, not for wholesale exclusion.

See

Zuckerman v. Coastal Camps, Inc., 716 F. Supp. 2d 23, 28 (D. Me. 2010) (“When the
‘adequacy of the foundation for expert testimony is at issue, the law favors vigorous
cross-examination over exclusion’”) (quoting Carmichael v. Verso Paper, LLC, 679 F.
Supp. 2d 109, 119 (D. Me. 2010)); see Payton v. Abbott Labs., 780 F.2d 147, 156 (1st

17

Cir. 1985) (“If the factual underpinnings of [the expert’s] opinions [are] in fact weak,
that [is] a matter affecting the weight and credibility of their testimony”); Brown, 402
F. Supp. 2d at 308 (“As a general rule, the factual basis of an expert opinion goes to
the credibility of the testimony, not the admissibility, and it is up to the opposing
party to examine the factual basis for the opinion in cross-examination”) (citation
omitted).
D.

Special Duty

In general, the Court agrees with the Defendants that whether a police officer
has a special duty to protect a person from violence from a private actor is at least a
mixed question of law and fact. The problem with the Defendants’ argument on this
point, however, is that it repeats the same contentions that convinced this Court but
not the First Circuit. While it will be this Court’s obligation to instruct the jury on
the law, the Court will not preclude the Plaintiffs from presenting expert testimony
that in the circumstances of this case, proper police protocol would have imposed on
the Defendants the obligation to protect the Plaintiffs or not to exacerbate the danger
Mr. Lord presented to them. This, after all, is why the First Circuit remanded the
case in the first place.
V.

SUMMARY
The Court is dismissing the Defendants’ motion without prejudice to

emphasize that it is not ruling finally on any of the issues presented in the
Defendants’ motion. The Court is only ruling that the Defendants have not made the
case for wholesale exclusion.

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VI.

CONCLUSION
The Court DISMISSES without prejudice the Defendants’ Motion to Exclude

D.P. Van Blaricom (ECF No. 59). 3
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 13th day of March, 2019

In accordance with its discussions with counsel, the Court ORDERS counsel to consult with
one another and present a schedule for the anticipated dispositive motion. If the Court has not
received a proposed schedule within one week, it will schedule a conference of counsel either to set
briefing deadlines or schedule the case for trial.

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