Van Buren et al v. Crawford, County of et al

Filing 109

ORDER Denying 73 74 Motions to Bar Expert Testimony and Denying Plaintiff's 101 Motion to Allow Testimony of Newly Discovered Witness. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MICHELLE VAN BUREN, Personal Representative
for the ESTATE OF WILLIAM REDDIE, deceased
and WILLIAM REDDIE,
Plaintiff,

Case No. 13-cv-14565

v.

Honorable Thomas L. Ludington

CRAWFORD COUNTY, CITY OF GRAYLING,
JOHN KLEPADLO, and ALAN SOMERO,
in their individual and official capacities,
Defendants.
_______________________________________/
ORDER DENYING MOTIONS TO BAR EXPERT TESTIMONY AND DENYING
PLAINTIFF’S MOTION TO ALLOW TESTIMONY OF NEWLY DISCOVERED
WITNESS
On August 3, 2016, the Court entered an order concluding that Defendants were entitled
to summary judgment based on the available record but which withheld entry of judgment
pending an evidentiary hearing to determine whether Defendants spoliated evidence. ECF No.
84. The second day of the evidentiary hearing will be held on October 31, 2016. On September
29, 2015, Defendants filed a motion to bar the expert report and testimony of Plaintiff’s witness
Edward J. Primeau. ECF No. 73. On October 2, 2015, Plaintiff filed a motion to strike several of
Defendants’ expert witnesses. ECF No. 74. Finally, on September 11, 2016, Plaintiff filed a
motion for leave for a newly discovered witness to testify as the evidentiary hearing. ECF No.
101. Because the outcome of these motions may impact the testimony at the evidentiary hearing,
they will be addressed now.
I.

The factual allegations surrounding the fatal shooting which gave rise to this action,
including the reasons why an evidentiary hearing was scheduled on the question of whether
Defendants spoliated evidence, are summarized in the Court’s August 3, 2016, order. ECF No.
84. That statement of facts will be adopted as if restated fully herein.
II.
A.
Defendants argue that Mr. Primeau should be barred from testifying as an expert because
he is not qualified and because his opinions are not based on a reliable factual foundation. ECF
No. 73. Plaintiff argues that Mr. Wesley Smith should be barred from testifying as an expert
because Defendants have not disclosed an expert report and because Mr. Smith is not qualified.
ECF No. 74. Plaintiff further requests that several other defense experts be stricken for failure to
furnish a report. Id. Finally, Plaintiff requests that Robert Haertel be allowed to testify at the
evidentiary hearing despite not being disclosed to Defendants until September 11, 2016. ECF
No. 101.
1.
According to Federal Rule of Evidence 702, “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

-2-

(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702.
The trial court must consider proffered expert testimony by making a “preliminary
assessment of whether the reasoning or methodology underlying the testimony is scientifically
valid and of whether that reasoning or methodology properly can be applied to the facts in
issue.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–93 (1993). Thus, proffered
expert testimony is admissible only if it is reliable and relevant. Pride v. BIC Corp., 218 F.3d
566, 577–78 (6th Cir. 2000).
Rather than analyzing the witness’s qualifications in the abstract, the trial court must
determine whether the witness’s “qualifications provide a foundation for [the] witness to answer
a specific question.” Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994). The trial judge
has “considerable leeway in deciding in a particular case how to go about determining whether
particular expert testimony is reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999). There is not a “definitive checklist,” but relevant questions include whether the theory or
technique can be tested, whether it is subject to peer review and publication, whether the
technique has a high rate of error, and whether the technique is generally accepted within the
“relevant scientific community.” Daubert, 509 U.S. at 592–95.
Defendants argue that Mr. Primeau is unqualified to testify as an expert. Defendants
emphasize Mr. Primeau’s lack of formal education regarding computer forensics or audio/visual
technology and cite to Jones v. Union Pac. R.R. Co., a recent case where the court ruled that Mr.
Primeau was not qualified to offer an expert opinion. No. 12 C 771, 2015 WL 5252958, at *10
(N.D. Ill. Sept. 8, 2015).

-3-

Plaintiffs are calling Mr. Primeau to testify regarding whether there is evidence that the
Defendants tampered with the recordings allegedly created by Officer Somero’s equipment. An
expert can be qualified even without a relevant diploma. Zuzula v. ABB Power T & D Co., 267 F.
Supp. 2d 703, 713 (E.D. Mich. 2003). Likewise, an expert “need not have complete knowledge
about the field in question.” Mannino v. Int’l Mfg. Co., 650 F.2d 846, 850 (6th Cir. 1981).
Rather, the expert “need only be able to aid the jury in resolving a relevant issue.” Id. In fact,
even “lack of hands-on experience is not fatal to a qualification inquiry if the focus of the
opinion is within the scope of the expert’s special knowledge.” Zuzula, 267 F. Supp. 2d 703, 713
(E.D. Mich. 2003) (citing Jahn v. Equine Servs., PSC, 233 F.3d 382, 389 (6th Cir. 2000)). If the
witness has “the minimal qualifications” necessary to qualify as an expert, then the trier of fact,
not the judge, should determine the weight to give to the expert’s testimony. Mannino, 650 F.2d
at 851.
Mr. Primeau has sufficient “knowledge, skill, experience, training, [and] education” to
testify. Fed. R. Evid. 702. Mr. Primeau has extensive experience with audio authentication. He
has been an audio engineer since 1979, which involves producing audio recordings. Primeau
C.V. at 2, ECF No. 73, Ex. 5. In 1987, he founded Primeau Productions, which offers audio and
video enhancement, authentication, and transcription services. Id. According to Mr. Primeau, he
has conducted hundreds of audio forensic investigations, including an audio forensic
examination with the FBI. Id. Further, Mr. Primeau is a member of several relevant professional
associations, including the Audio Engineering Society and the American College of Forensic
Examiners. Id. at 4. Mr. Primeau has provided testimony in numerous legal cases regarding
whether audio recordings were authentic or had been tampered with. Id. at 7–25. In two
particularly relevant cases, he testified regarding whether a message on an answering machine

-4-

had been irrevocably erased and whether a nightclub owner had erased digital video surveillance.
Id. at 7–8 (Fitzgerald v. Skobeloff and People ex rel. City of Chicago v. Le Mirage, Inc.).
Like in past cases where Mr. Primeau has provided expert testimony, he was retained
here to analyze whether the inoperable compact disc that Defendants provided to Plaintiff had
been tampered with and whether there was other evidence of misconduct with audio recordings.
Defendants argue that Mr. Primeau does not have sufficient experience as a computer engineer to
testify regarding the operation of the Defendants’ recording system. But Mr. Primeau testified
that he has conducted many “evidence recovery” assignments. Primeau Dep. at 11, ECF No. 85,
Ex. L. In fact, he testified that he has received at least some specialized training in evidence
recovery from audio/visual surveillance systems. Id. at 11–12. Given Mr. Primeau’s many years
of experience and the large number of cases for which he has provided authentication and
evidence recovery assistance, Mr. Primeau possesses the qualifications necessary to “aid the jury
in resolving a relevant issue.” Mannino v. Int’l Mfg. Co., 650 F.2d at 850.1 He is qualified to
testify.
Defendants further argue that, even if Mr. Primeau is qualified to offer expert opinions,
his testimony should still be excluded because it is not necessary for the jury to understand the
case and is based on unsupported speculation. Expert testimony is admissible if the subject
matter is “‘beyond the understanding of the average layman.’” United States v. Combs, 369 F.3d
925, 940 (6th Cir. 2004) (quoting United States v. Pearce, 912 F.2d 159, 163 (6th Cir.1990)). See
also United States v. Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004) (“Properly qualified expert

1

Defendants cite Jones v. Union Pac. R.R. Co., 2015 WL 5252958, at *10, in further support of their contention that
Mr. Primeau is not qualified. In Jones, the court concluded that Mr. Primeau was not qualified to testify regarding
his forensic analysis of several videos. However, the Jones court did not conclude that Mr. Primeau was unqualified
to testify regarding forensic audio analysis and even admitted that Mr. Primeau had experience with audio analysis.
Id. at 11. Because this case involves different facts and because Jones, an unpublished district court opinion from
another circuit, holds no precedential value, the Court declines to find that Mr. Primeau is unqualified.

-5-

testimony is generally admissible if it will assist the trier of fact to understand the evidence or to
determine a fact in issue.”) (citations omitted).
Mr. Primeau’s testimony will assist the jury in determining whether the recordings from
Defendant Somero’s SD card should exist. Although Defendants argue that Mr. Primeau’s
opinion that the recordings should exist is based on no evidence, his deposition makes clear that
he will testify that the metadata he recovered from the compact disc indicated where the
recordings originated. Primeau Dep. at 27. Mr. Primeau has significant experience interpreting
metadata. Id. at 83. He further testified, based on his technical experience, that even if Officer
Somero’s microphone was malfunctioning, a recording file of some kind should still have been
created. Id. at 92–93. Thus, Mr. Primeau is basing his conclusion that the recordings were
intentionally deleted on evidence he reviewed and his own expertise. Defendants might disagree
with that conclusion or believe that alternative explanations exist, but those contentions should
be explored during cross-examination. This testimony involves technical information which a
typical juror is unlikely to be familiar with, and thus Mr. Primeau’s testimony will be helpful.
Defendants further argue that Mr. Primeau should be barred from testifying that the
recording system in Officer Somero’s car was functional on the day in question. They contend
that Mr. Primeau is not basing his opinion on an investigation of the system, that his testimony is
not necessary for the average juror to understand the issue, and that he relies on incorrect factual
assumptions. As already explained, Mr. Primeau is basing his opinion on evidence and
documentation that he was provided and helped recover. The fact that Mr. Primeau did not
personally test the missing SD Card or the now-replaced recording system might lessen the
weight which should be given to his testimony, but does not disqualify him. See Jahn, 233 F.3d
at 389 (because expert was relying on medical records provided to him and his professional

-6-

experience, his lack of “hands-on familiarity” with the surgery was not relevant to admissibility).
And although the conclusions Mr. Primeau reaches are easily understandable by average jurors,
the process by which he arrives at them, which involves an analysis of technical data and
reliance on his experience with similar recording systems, is not. Defendants vigorously argue
that Mr. Primeau’s testimony should be excluded because he based his conclusions, in part, on
recordings recovered from car one, which Defendants assert was not Officer Somero’s vehicle.
Mr. Primeau admitted this discrepancy, but explained that the recordings from car one informed
his conclusion that the recording system, as a whole, was working on the day in question. See
Primeau Dep. at 29–39.2 Mr. Primeau has offered a sufficient factual basis for his findings to
testify.
Defendants next argue that Mr. Primeau should be barred from testifying regarding police
procedures or chain of custody practices. Mr. Primeau admits that he is not a police procedures
expert. Id. at 17–19. Accordingly, he will not be permitted to offer an expert opinion on police
procedures or chain of custody practices generally. However, because Mr. Primeau has
investigated the compact disc provided by Defendants, he will be allowed to opine about whether
there is evidence that the integrity of the recording was compromised in this specific case.
Finally, Defendants argue that Mr. Primeau should be barred from offering an opinion
regarding whether the recording system in Sheriff Deputy Klepadlo’s car was working. Mr.
Primeau’s conclusion regarding the operability of the Crawford Sheriff Department’s recording
system seems to be based solely on the lack of documented repair requests. Primeau Dep. at 63;
2

Mr. Primeau also testified that there was some evidence that Pro-Vision, the company which the Grayling Police
Department had contracted with to provide the recording systems, made “field changes” to their software. Primeau
Dep. at 31–32, 54–56. The Pro-Vision software has “fields,” which are boxes that are populated with information
regarding the date of the recording, where the recording originated, and similar information. Id. Because there is
some evidence that Pro-Vision changed some of these fields, Mr. Primeau testified that it was possible that the
recordings purportedly from car one were actually from Officer Somero’s car. Defendants strongly contest this line
of reasoning, but, as already stated, these factual disputes should be resolved during cross-examination.

-7-

Primeau Rep. at 55. Mr. Primeau did nothing besides review documents. He did not conduct an
inspection of the system or search for any recordings. His conclusion is based on a simple
inference that, because the Crawford Sheriff Department did not complain about malfunctioning
equipment, the system was working. This is not a technical issue which requires expert
explanation. The fact-finder is capable of accepting or rejecting the inference Mr. Primeau made
by reviewing the original documents themselves. Accordingly, Mr. Primeau will be barred from
testifying as to the operability of the recording system in Sheriff Deputy Klepadlo’s car.
Defendants’ motion to bar Mr. Primeau’s expert testimony will be denied, but the scope of his
testimony will be cabined.
2.
Plaintiff has also filed a motion to strike Defendants’ experts. ECF No. 74. She argues
that Defendants did not name Detective Sergeant Wesley Smith as a potential expert until after
the deadline for expert disclosures and that Detective Smith did not provide an expert report.
Plaintiff further argues that no reports were filed with respect to a number of other potential
defense expert witnesses.
Under Federal Rule of Civil Procedure 26(a)(2), the parties must disclose any witnesses
retained to provide expert testimony. Fed. R. Civ. P. 26(a)(2)(A). These disclosures must be
made “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). “[I]f
the witness is one retained or specially employed to provide expert testimony in the case or one
whose duties as the party’s employee regularly involve giving expert testimony,” such a
disclosure “must be accompanied by a written report – prepared and signed by the witness”
containing:
(i)

a complete statement of all opinions the witness will express and the basis
and reasons for them;
-8-

(ii)

the facts or data considered by the witness in forming them;

(iii)

any exhibits that will be used to summarize or support them;

(iv)

the witness’s qualifications, including a list of all publications authored in
the previous 10 years;

(v)

a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and

(vi)

a statement of the compensation to be paid for the study and testimony in
the case.

Fed. R. Civ. P. 26(a)(2)(B). In interpreting Federal Rule of Civil Procedure 26(a), the Sixth
Circuit has explained that “a report must be complete such that opposing counsel is not forced to
depose an expert in order to avoid an ambush at trial; and moreover the report must be
sufficiently complete so as to shorten or decrease the need for expert depositions and thus to
conserve resources.” R. C. Olmstead, Inc. v. C.U. Interface, LLC, 606 F.3d 262, 271 (6th Cir.
2010) (internal quotation and citation omitted).
First, Plaintiff argues that Detective Sergeant Wesley Smith should not be allowed to
testify as an expert because Defendants named Detective Smith as an expert after the time for
expert disclosures had ended. Under the Court’s April 15, 2015, scheduling order, Defendants’
expert disclosures were due on May 22, 2015. Defendants admit that the possibility of Detective
Smith testifying as an expert was not disclosed until July 1, but assert that Detective Smith’s
testimony is meant only to rebut the proposed testimony of Plaintiff’s expert, Mr. Primeau.
Pursuant to Federal Rule of Civil Procedure 26(a)(2)(D)(iii), expert testimony that is meant
“solely to contradict or rebut evidence on the same subject matter” presented by the other party
must be filed within 30 days after the other party’s disclosure. Defendants received Mr.
Primeau’s report on June 5, 2015 and identified Detective Smith as a potential expert witness on

-9-

July 1, 2015. Because Detective Smith’s testimony is meant to directly respond to Mr. Primeau’s
testimony, and because Detective Smith was disclosed within 30 days of Plaintiff’s disclosure of
the substance of Mr. Primeau’s testimony, Defendants’ disclosure was timely.
Plaintiff further argues that Detective Smith should alternatively be stricken as an expert
because Defendants did not provide a written expert report. Federal Rule of Civil Procedure
26(a)(2)(B) does require some expert witnesses to provide a report, but only “if the witness is
one retained or specially employed to provide expert testimony in the case or one whose duties
as the party’s employee regularly involve giving expert testimony.” See also Fielden v. CSX
Transp., Inc., 482 F.3d 866, 869 (6th Cir. 2007). Detective Smith is employed as an investigator
with the Michigan State Police Computer Crimes Division. He was not retained solely to provide
expert opinion in this case. Smith Dep. at 50–52, ECF No. 85, Ex. M. And although Detective
Smith has testified as an expert before, the vast majority of his job is spent providing electronic
forensic services to the Michigan State Police in its computer crimes division. Id. at 24–27, 51–
52. Accordingly, he does not fall within the 26(a)(2)(B) report requirement.
Because Detective Smith was not required to provide a report, Federal Rule of Civil
Procedure 26(a)(2)(C) applies, which merely requires the expert disclosure to provide the subject
matter on which the expert will present evidence and a summary of the facts and opinions which
the witness will proffer. Defendants’ initial disclosure clearly indicates that Detective Smith will
testify regarding whether the missing audio files were intentionally deleted, presumably in
response to Mr. Primeau’s report. ECF No. 74, Ex. A. Defendants then provided, on August 28,
2015, Detective Smith’s affidavit, which lays out his opinions and conclusions in more detail.
ECF No. 62, Ex. 7. Although that disclosure occurred outside the 30 day window of
26(a)(2)(D)(iii), the disclosure occurred well before Plaintiff’s deposition of Detective Smith on

- 10 -

October 16, 2015. Further, Plaintiff has now had over a year to digest and prepare to rebut
Detective Smith’s presumptive testimony. Accordingly, Plaintiff was not prejudiced to the extent
Detective Smith’s 26(a)(2)(C) disclosure was untimely.
Finally, Detective Smith is qualified to testify as an expert. An expert can be qualified
primarily through experience. Mannino, 650 F.2d at 850. Detective Smith has received over 500
hours of training in technological forensics. Smith C.V., ECF No. 74, Ex. C. He has also led the
Michigan State Police Computer Crimes office since 2012, Id., so he has significant related work
experience as well. See Smith Dep. at 40–41. The crucial question is whether the testimony will
aid the jury in “resolving a relevant issue.” Mannino, 650 F.2d at 850. Courts have consistently
allowed police officers to testify as experts when their testimony is relevant and reliable. United
States v. Lopez-Medina, 461 F.3d 724, 743 (6th Cir. 2006). Detective Smith has sufficient
training and experience with technologically-based forensics to offer relevant and reliable
testimony to the jury.
Second, Plaintiff makes the perfunctory argument that numerous other proposed defense
experts did not submit expert reports. Federal Rule of Civil Procedure 26(a)(2)(B) only requires
an expert to submit a report if the “witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the party’s employee regularly involve
giving expert testimony.” Plaintiff has not individually identified the additional experts to be
stricken and has not shown that reports are required to be submitted for these experts. Absent a
more specific explanation of why these unnamed experts should have provided a report, the
experts will not be stricken. In short, Plaintiff’s motion to strike defense experts will be denied.
3.

- 11 -

Finally, Plaintiff has moved to allow Robert Haertel to testify at the evidentiary hearing.
ECF No. 101. Plaintiff argues that she did not become aware of Mr. Haertel’s potentially
relevant testimony until September 10, 2016. Accordingly, Plaintiff asserts that good cause exists
to allow her to amend her initial disclosures so that Mr. Haertel can testify at the evidentiary
hearing.
Plaintiff attaches to her motion the email through which Mr. Haertel informed Plaintiff of
his experience. Email, ECF No. 101, Ex. A. In that email, Mr. Haertel explains that he was the
process server who served Defendants in this case. Id. When Mr. Haertel served the Crawford
County Sheriff’s Department, he encountered problems with an unnamed sergeant. Id. According
to Mr. Haertel, the sergeant indicated that a surveillance camera which filmed a portion of the
sheriff’s department was for police benefit only and that any negative evidence on the recording
would get lost if requested by an outside party. Id. Mr. Haertel makes clear that the statement
was made by an unidentified older sergeant, not any of the named Defendants. Id. In the email,
Mr. Haertel also asserted that a secretary at the Grayling City Hall made a similar comment
about how incriminating recordings would be lost if asked for. Id.
Defendants argue that Plaintiff’s motion should be denied because, among other reasons,
Mr. Haertel’s testimony is not relevant to the issues being addressed in the evidentiary hearing.
The Court agrees. Plaintiff should be granted leave to amend its initial disclosures such that Mr.
Haertel may testify at the hearing if, pursuant to Federal Rule of Civil Procedure 16(b), good
cause exists. Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002). However, because Mr.
Haertel’s testimony is not relevant to any issue contested in the hearing, good cause does not
exist. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in determining the action.”

- 12 -

Fed. R. Ev. 401. Mr. Haertel will not testify about the behavior of any named Defendant. Mr.
Haertel’s testimony will focus solely on statements of an unnamed sergeant with the Crawford
County Sheriff’s Department and an unnamed secretary at Grayling City Hall regarding
misconduct with video recordings. The statements were not made by any of the named
Defendants in this case. There is no evidence that the secretary about whom Mr. Haertel will
testify has any relation to the police department. Further, Mr. Haertel’s testimony has nothing to
do with recording systems in police vehicles, which is the issue that will be contested at the
evidentiary hearing. At best, Mr. Haertel’s testimony would suggest that the Defendants are
willing to purposefully lose video recordings from surveillance equipment in the Grayling City
Hall and Crawford County Police Department. But that testimony is not probative of whether
misconduct occurred with the recording systems in the police vehicles. The evidence spoliation
claims involve completely different recording systems.
Plaintiff argues that, despite the tangential relevance of the testimony, Mr. Haertel should
be allowed to testify because the statements made by employees of the Defendants indicate a
culture of evidence destruction within the Defendants’ offices. That slight probative value,
however, is insufficient to establish good cause for leave to amend. Thus, Plaintiff’s motion will
be denied.
III.
Accordingly, it is ORDERED that Defendants’ motion to bar the expert testimony of Mr.
Primeau, ECF No. 73, is DENIED.
It is further ORDERED that Plaintiff’s motion to strike expert witnesses, ECF No. 74, is
DENIED.

- 13 -

It is further ORDERED that Plaintiff’s motion to allow Robert Haertel to testify at the
evidentiary hearing, ECF No. 101, is DENIED.

Dated: September 26, 2016

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 26, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

- 14 -