Barnett v. City of Laurel et al

Filing 251

MEMORANDUM OPINION AND ORDER granting in part and denying in part 193 Motion to Exclude; denying 210 Motion in Limine. Signed by District Judge Keith Starrett on 11/6/19. (cb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
JAMES DEMETRIUS BARNETT
v.

PLAINTIFF
CIVIL ACTION NO. 2:18-CV-92-KS-MTP

CITY OF LAUREL, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons below, the Court grants in part and denies in part the City
of Laurel’s Motion to Disallow [193] Plaintiff’s experts and denies Plaintiff’s Motion
in Limine [210].
I. BACKGROUND
Plaintiff alleges that Defendants Bryce Gilbert and Wade Robertson, officers
of Laurel, Mississippi’s police department, pursued him and pulled him over after he
altered his route to avoid a roadblock. Plaintiff claims that he never resisted arrest,
but that Gilbert and Robertson forced him to lie face-down on the ground and
repeatedly kicked him in the head with steel-toed boots. Plaintiff claims that he
suffered “permanent traumatic brain injury” and traumatic injury to his face, eyes,
and nervous system.
Plaintiff also alleges that Gilbert and Robertson prevented paramedics from
treating him or transporting him to the nearest hospital. Rather, Gilbert transported
Plaintiff to a hospital. While Plaintiff was hospitalized, Defendants and other Laurel
police officers allegedly threatened him.

Plaintiff alleges that Laurel law enforcement officers threatened to frame him
for possession of a controlled substance if he told anyone about the beating
Defendants gave him. Officers also allegedly told him that he would not be released
from jail unless he admitted certain misdemeanor traffic violations. Therefore,
Plaintiff pleaded guilty to various traffic offenses under coercion and without legal
representation.
Plaintiff believes that he was targeted by Defendants because he is AfricanAmerican. He filed this lawsuit, naming the City of Laurel, Bryce Gilbert, and Wade
Robertson as Defendants. Both individual Defendants are named in their individual
and official capacities. Plaintiff asserted numerous claims under 42 U.S.C. ' 1983,
alleging violations of constitutional rights. In the Court’s previous Memorandum
Opinion and Order [77], it dismissed Plaintiff’s claim for punitive damages as to the
City and the individual Defendants in their official capacities, and Plaintiff’s claims
under 42 U.S.C. §§ 1985 and 1986. Memorandum Opinion and Order at 4, 6, Barnett
v. City of Laurel, No. 2:18-CV-92-KS-MTP (S.D. Miss. Sept. 5, 2018), ECF No. 77.
The parties have completed discovery, and they filed several evidentiary and
dispositive motions. The Court now addresses the parties’ evidentiary motions.
II. MOTION TO DISALLOW PLAINTIFF’S EXPERTS [193]
The City filed a Motion to Disallow [193] Plaintiff’s experts from providing
testimony. The City argues that Plaintiff failed to comply with his disclosure
obligations under the Rules, and that some of Plaintiff’s proposed expert testimony
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should be excluded under Rule 702.
This is the second motion the City has filed seeking the exclusion of Plaintiff’s
experts for Plaintiff’s failure to comply with the discovery rules. See Motion to
Disallow Plaintiff’s Experts, Barnett v. City of Laurel, No. 2:18-CV-92-KS-MTP (S.D.
Miss. May 23, 2019), ECF No. 120. The Court denied the first motion without
prejudice because there was still time left in the discovery period for Plaintiff to
comply with the rules and cure the prejudice. Id. at 2. Defendant contends that
Plaintiff failed to correct the deficiencies in his disclosures after the Court gave him
a second chance. For the reasons provided below, the Court grants the motion in part
and denies it in part.
A.

Retained Experts without Reports
First, the City argues that the Court should exclude the expert testimony of

Bill Brister, Kathy Smith, and Robert Davis because Plaintiff did not provide expert
reports as required by Rule 26. In response, Plaintiff did not address this aspect of
the City’s motion.
Rule 26 requires parties to disclose the identity of any person who will provide
expert testimony at trial. FED. R. CIV. P. 26(a)(2)(A). “[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,” the proponent of the
expert testimony must provide a written report prepared and signed by the witness.
FED. R. CIV. P. 26(a)(2)(B). Moreover, the report must contain specific information
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listed in the Rules. FED. R. CIV. P. (a)(2)(B)(i)-(vi).
The Court examined Plaintiff’s disclosures attached to the City’s motion, and
they do not include expert reports from Brister, Smith, or Davis. Coupled with
Plaintiff’s conspicuous avoidance of the topic in briefing, this leads the Court to
conclude that Plaintiff did not produce reports from these experts.
“If a party fails to provide information or identify a witness as required by Rule
26(a) or (3), the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” FED. R. CIV. P. 37(c)(1). When determining whether to strike
an expert’s testimony for a party’s failure to properly and timely disclose required
information, the Court considers the following factors: (1) the importance of the
testimony, (2) the prejudice to the opposing party if the Court allows the testimony,
(3) the possibility of curing the prejudice with a continuance, and (4) the explanation
for the failure to comply with the discovery rules. Sierra Club, Lone Star Chapter v.
Cedar Point Oil Co., Inc., 73 F.3d 546, 572 (5th Cir. 1996).
The Court will assume that the testimony of these experts is important, but
Plaintiff has not provided any explanation for his failure to provide Defendants with
expert reports. Defendants would be severely prejudiced if the Court permitted
Brister, Smith, or Davis to testify because Defendants don’t know their opinions or
the basis of those opinions, among other things. There is no time to cure the prejudice
because the pretrial conference is scheduled for November 14, 2019. In fact, Plaintiff
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has had ample time to cure the prejudice insofar as he was put on notice of the
deficiencies in the disclosures when Defendants filed their initial motion.
For these reasons, the Court grants Defendant’s motion with respect to Bill
Brister, Kathy Smith, and Robert Davis. The Court excludes their testimony. Plaintiff
is not allowed to use it to supply evidence on a motion, at a hearing, or at trial.
B.

Roy Taylor
Next, the City argues that the Court should exclude the testimony of Roy

Taylor. Defendant argues that Taylor’s proposed testimony includes legal opinions
outside the scope of appropriate expert testimony. Defendant also argues that a
substantial portion of Taylor’s testimony is merely recitation of facts gleaned from
other evidence.
1.

Rule 702 Standard

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;
(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.
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FED. R. EVID. 702. Therefore, “when expert testimony is offered, the trial judge must
perform a screening function to ensure that the expert’s opinion is reliable and
relevant to the facts at issue in the case.” Watkins v. Telsmith, Inc., 121 F.3d 984,
988-89 (5th Cir. 1997).
In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), the Supreme Court provided a nonexclusive list of “general
observations intended to guide a district court’s evaluation of scientific evidence,”
including: “whether a theory or technique can be (and has been) tested, whether it
has been subjected to peer review and publication, the known or potential rate of
error, and the existence and maintenance of standards controlling the technique’s
operation, as well as general acceptance.” Watkins, 121 F.3d at 989 (punctuation
omitted).
Not every guidepost in Daubert will necessarily apply . . . , but the
district court’s 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 is no less important.
Id. at 990-91 (punctuation omitted).
Expert testimony must be supported by “more than subjective belief or
unsupported speculation.” Paz v. Brush Eng’red Materials, Inc., 555 F.3d 383, 388
(5th Cir. 2009). It “must be reliable at each and every step or it is inadmissible. The
reliability analysis applies to all aspects of an expert’s testimony: the methodology,
the facts underlying the expert’s opinion, the link between the facts and the
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conclusion, et alia.” Seaman v. Seacor Marine LLC, 326 F. App’x 721, 725 (5th Cir.
2009). “Overall, the trial court must strive to ensure that the expert, whether basing
testimony on professional studies or personal experience, employs in the courtroom
the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).
But the Court’s role as gatekeeper is not meant to supplant the adversary
system because “[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. The Court
should focus solely on the proposed expert’s “principles and methodology, not on the
conclusions that they generate.” Id. at 595. But “nothing in either Daubert or the
Federal Rules of Evidence requires a district court to admit opinion evidence
connected to existing data only by the ipse dixit of the expert.” GE v. Joiner, 522 U.S.
136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).
In summary, the proponent of expert testimony must demonstrate that the
proposed expert is qualified, that the testimony is reliable, and that it is relevant to
a question of fact before the jury. United States v. Hicks, 389 F.3d 514, 525 (5th Cir.
2004). The proponent must prove these requirements “by a preponderance of the
evidence.” United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003).
2.

Legal Opinions

According to Taylor’s report, he was retained to provide an “expert opinion as
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to whether the Defendants acted in accordance with established law enforcement
standards.” Exhibit D to Motion to Disallow at 1, Barnett v. City of Laurel, No. 2:18CV-92-KS-MTP (S.D. Miss. July 16, 2019), ECF No. 193-4. As Defendant represented,
a substantial portion of Taylor’s testimony appears to be the recitation of facts
gleaned from the incident report and the officers’ body camera videos. Id. at 4-7. But
numerous opinions are scattered among four pages with twenty-three numbered
paragraphs. Id. The City argues that the Court should exclude all of Taylor’s
testimony, but it did not specifically address each enumerated opinion.
The Court agrees that Taylor’s proposed testimony includes legal opinions
outside the scope of appropriate expert testimony. For example, Taylor intends to
testify: “On the morning of May 16, 2018, no threat was present which would justify
the unreasonable and excessive force used by Officers Gilbert and Robertson.” Id. at
5. Additionally, paragraphs 14, 15, 16, 17, 18, 19, 20, 22, and 23 contain opinions as
to the ultimate issue in this case: the reasonableness of the officers’ use of force under
the circumstances.
Generally, “[a]n opinion is not objectionable just because it embraces an
ultimate issue” in a case. FED. R. EVID. 704(a). But expert witnesses are not allowed
to “tell the jury what result to reach . . . .” Matthews v. Ashland Chem., Inc., 770 F.2d
1303, 1311 (5th Cir. 1985). Moreover, “an expert may never render conclusions of
law,” Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009), or opinions on
legal issues. Estate of Sowell v. United States, 198 F.3d 169, 171-72 (5th Cir. 1999).
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Applying these principles, the Fifth Circuit has specifically held that the
reasonableness of an officer’s use of force is a legal conclusion. Pratt v. Harris County,
Tex., 822 F.3d 174, 181 (5th Cir. 2016); United States v. Williams, 343 F.3d 423, 435
(5th Cir. 2003); McBroom v. Payne, 478 F. App’x 196, 200 (5th Cir. 2012).
However, Plaintiff may introduce expert testimony as to proper police
procedures, and whether Defendants’ actions were consistent with those procedures.
See Mason v. Paul, 929 F.3d 762, 764 (5th Cir. 2019); cf. Hale v. City of Biloxi, 2017
WL 3087279, at *4 (S.D. Miss. July 20, 2017) (district court considered affidavit as to
police procedures, but failure to use proper procedures does not prove excessive force).
Taylor’s testimony must

not stray, though, into opinions regarding the

reasonableness of the officers’ actions. Pratt, 822 F.3d at 181. Therefore, the Court
grants the City’s motion with respect to any opinion testimony regarding the
reasonableness of the officer’s use of force, but the Court denies the motion with
respect to Taylor’s testimony regarding proper police procedures. The Court declines
to sift line-by-line through Taylor’s report. The Court trusts that the attorneys of
record can apply the ruling to Taylor’s report, and that Plaintiff’s counsel can
adequately inform Taylor of the limitations on his testimony.
3.

Culture or Custom of Excessive Force

Taylor’s report also includes the following paragraph:
A culture of allowing and accepting excessive force appears to be
prevalent in the Laurel Police Department. Comments made to Mr.
Barnett by Officer Robertson about acting like a fool, he was going to
meet a fool, and Officer Gilbert stating that if he didn’t get up he was
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going to get TASED. Officer Gilbert also told him, “if you do wrong, you
get done wrong.” As well as, Sergeant John Stringer asking Mr. Barnett
while at the hospital, “how do those steel toed boots feel on your face
boy?” “You had better be glad I wasn’t out there. If I were you would be
laying right here in a coma.” In addition, SGT Stringer stated “I am the
sergeant of the shift and I can plant drugs on you and make it stick.”
Exhibit D [193-4], at 7. The City argues that this opinion regarding the City of Laurel
is not supported by sufficient evidence. Plaintiff did not respond to this argument in
briefing.
“A municipality is not liable under § 1983 on the theory of respondeat superior,
but only for acts that are directly attributable to it through some official action or
imprimatur.” James v. Harris County, 577 F.3d 612, 617 (5th Cir. 2009). Therefore,
“[t]o hold a municipality liable under § 1983 for the misconduct of an employee, a
plaintiff must show, in addition to a constitutional violation, that an official policy
promulgated by the municipality’s policymaker was the moving force behind, or
actual cause of the constitutional injury.” Id. Official policy can take many forms. Id.
It can be “written policy statements, ordinances, or regulations,” but it can also be “a
widespread practice that is so common and well-settled as to constitute a custom that
fairly represents municipal policy.” Id.
The evidence relied upon by Taylor – stray remarks by the two individual
Defendants and one additional officer on this single occasion – is not sufficient
evidence to show that the City had a policy or custom of allowing the use of excessive
force. See, e.g. World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d
747, 753-54 (5th Cir. 2009) (a single incident is not enough to prove a custom or
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policy). Therefore, Taylor’s opinion is a conclusory statement, without supporting
evidence. See Barkley v. Dillard Dep’t Stores, Inc., 277 F. App’x 406, 413 (5th Cir.
2008) (court declined to credit expert testimony that a custom or practice existed
when it was not supported by sufficient evidence); Guile v. United States, 422 F.3d
221, 227 (5th Cir. 2005) (“A claim cannot stand or fall on the mere ipse dixit of a
credentialed witness.”). The Court grants the City’s motion as to paragraph 21 of
Taylor’s report.
4.

Recitation of Facts

Finally, the City argues that an expert witness is not permitted to simply recite
the factual contents of other evidence to the jury. It contends that much of Taylor’s
report is narration of what purportedly occurred on the videos from the officers’ body
cameras. Plaintiff did not respond to this argument in briefing.
The Court agrees that much of Taylor’s proposed testimony is recitation of the
contents of the officers’ body camera videos. The Court likewise agrees that a
proposed expert may not simply recite the contents of other evidence without
applying any specialized knowledge or experience to help the jury understand the
facts in evidence. See, e.g. Dei Rossi v. Whirlpool Corp., 2015 WL 1932484, at *1 n. 1
(E.D. Cal. Apr. 28, 2015). However, Rules 703 and 705 clearly contemplate that an
expert may disclose the facts underlying his opinions to the jury. FED. R. EVID. 703,
705. “But if the facts or data would otherwise be inadmissible, the proponent of the
opinion may disclose them to the jury only if their probative value in helping the jury
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evaluate the opinion substantially outweighs their prejudicial effect.” FED. R. EVID.
703. Therefore, Taylor is not categorically barred from citing the contents of other
evidence. He is generally permitted to disclose the factual basis of his opinions, within
the boundaries prescribed by Rules 703 and 705. The Court presently denies this
aspect of Defendant’s motion, but the parties may raise the issue in more detail at
trial, if they deem it necessary.
C.

Dr. Aremmia Tanious
Finally, the City argues that the Court should limit the testimony of Dr.

Arremmia Tanious to his treatment of Plaintiff. The City notes that Plaintiff
designated Tanious to provide testimony on several subjects, including occupational
rehabilitation, a life care plan, lost income, future medical costs, future treatment,
and an application for social security. Exhibit A to Motion to Disallow at 21, 23,
Barnett v. City of Laurel, No. 2:18-CV-92-KS-MTP (S.D. Miss. July 16, 2019), ECF
No. 193-1. However, Plaintiff did not produce an expert report from Tanious. Plaintiff
did not respond to this aspect of Defendant’s motion.
Rule 26 requires parties to disclose the identity of any person who will provide
expert testimony at trial. FED. R. CIV. P. 26(a)(2)(A). “[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,” the proponent of the
expert testimony must provide a written report prepared and signed by the witness.
FED. R. CIV. P. 26(a)(2)(B). But if the expert witness is not required to provide a
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written report, the designation must provide the subject matter of the expert’s
testimony, and a summary of the facts and opinions to which she is expected to testify.
FED. R. CIV. P. 26(a)(2)(C). “A number of courts agree that a treating physician may
testify as a non-retained expert witness B and therefore need not provide an expert
report . . . .” Kim v. Time Ins. Co., 267 F.R.D. 499, 502 (S.D. Tex. 2008) (collecting
cases); see also FED. R. CIV. P. 26(a)(2)(B).
But if a treating physician “does not provide an expert report, his testimony
must remain confined to facts disclosed during care and treatment of the patient,
including his diagnosis, the causation of a plaintiff’s injuries, and the patient’s
prognosis, as long as the doctor formed those opinions based on his personal
knowledge and observations obtained during the course of care and treatment.”
Barnett v. Deere, No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS 123114, at *3 (S.D.
Miss. Sept. 11, 2016). “Conversely, where a treating physician has prepared his
opinions in anticipation of litigation or relies on sources other than those utilized in
treatment, courts have found that the treating physician acts more like a retained
expert and must comply with Rule 26(a)(2)(B).” Id. 1 Therefore, if a treating

1See

also Previto v. Ryobi N. Am., Inc., No. 1:08-CV-177-HSO-JMR, 2010 U.S.
Dist. LEXIS 133344, at *9-*10 (S.D. Miss. Dec. 16, 2010); Cooper v. Wal-Mart
Transp. LLC, No. H-08-0085, 2009 U.S. Dist. LEXIS 8706, at *3-*4 (S.D. Tex. Feb.
5, 2009); Lee v. Valdez, No. 3:07-CV-1298-D, 2008 U.S. Dist. LEXIS 70979, at *9-*10
(N.D. Tex. Sept. 18, 2008); Boudreaux v. J.P. Morgan Chase & Co., No. 07-555, 2007
U.S. Dist. LEXIS 86686, at *6-*7 (E.D. La. Nov. 21, 2007); Duke v. Lowe=s Home
Ctrs., Inc., No. 1:06-CV-207-P-D, 2007 U.S. Dist. LEXIS 80415, at *3-*4 (N.D. Miss.
Oct. 19, 2007); Robbins v. Ryan=s Family Steak Houses E., Inc., 223 F.R.D. 448, 453
(S.D. Miss. Sept. 16, 2004); Lowery v. Spa Crafters, Inc., No. SA-03-CA-0073-XR,
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physician=s expected testimony B whether fact or opinion B is not in the produced
medical records from his or her treatment of the plaintiff, the plaintiff is required to
produce an expert report in compliance with Rule 26(a)(2)(B).
Plaintiff did not produce a report from Tanious. “If a party fails to provide
information or identify a witness as required by Rule 26(a) or (3), the party is not
allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.”
FED. R. CIV. P. 37(c)(1). When determining whether to strike an expert’s testimony
for a party’s failure to properly and timely disclose required information, the Court
considers the following factors: (1) the importance of the testimony, (2) the prejudice
to the opposing party if the Court allows the testimony, (3) the possibility of curing
the prejudice with a continuance, and (4) the explanation for the failure to comply
with the discovery rules. Sierra Club, 73 F.3d at 572.
The Court will assume that the undisclosed testimony from Tanious is
important, but Plaintiff has not articulated any explanation for his failure to disclose
it. It would severely prejudice Defendants if the Court permitted Tanious to provide
any testimony outside the scope of Plaintiff’s medical records because Defendants
have not had an opportunity to examine such testimony or obtain their own rebuttal
experts. There is no time to cure the prejudice because the pretrial conference is
imminent. Therefore, the Court concludes that Plaintiff may not introduce any
2004 U.S. Dist. LEXIS 16072, at *4-*5 (W.D. Tex. Aug. 16, 2004).
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opinions or other testimony from Tanious outside the scope of the produced medical
records. If an opinion or fact is not in the medical records, Tanious will not be
permitted to offer it at trial, and the Court will not consider it on a motion. 2
III. PLAINTIFF’S MOTION IN LIMINE [210]
Plaintiff filed a Motion in Limine [210], arguing that his actions prior to exiting
his vehicle are irrelevant to his excessive force claim, and that such actions should be
excluded as unfairly prejudicial under Rule 403. For the reasons provided below, the
Court denies the motion.
First, Plaintiff argues that nothing that happened prior to him exiting his
vehicle is relevant to the question of whether the officers’ use of force was reasonable.
Plaintiff cites Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443
(1989). There, the Supreme Court held that the “reasonableness of a particular use
of force must be judged form the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Id. at 396. Plaintiff contends that this
requires the Court to exclude evidence of anything that preceded his arrest.
Plaintiff’ is mistaken. The Supreme Court meant that an officer’s actions must
be evaluated from his or her perspective at the time – not that the Court or a jury
must disregard events preceding the use of force, events which would have had
bearing on the officer’s perspective on the scene. The reasonableness of an officer’s
use of force is determined in light of the surrounding circumstances. See, e.g.
The Court will not address any additional arguments presented in Defendants’ reply briefs or
joinders in reply. Wallace v. County of Comal¸400 F.3d 284, 292 (5th Cir. 2005).
2

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Shepherd v. City of Shreveport, 920 F.3d 278, 284 (5th Cir. 2019); Fraire v. City of
Arlington, 957 F.2d 1268, 1275 (5th Cir. 1982). “A ‘reasonable officer’ does not shape
his decisions based only on the seconds when he confronts [a suspect]; instead, he acts
based on all relevant circumstances, including the events leading up to the ultimate
encounter.” Cole v. Carson, 935 F.3d 444, 482 (5th Cir. 2019) (Duncan, J., dissenting);
see also Tennessee v. Garner, 471 U.S. 1, 21, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)
(district court erred in not considering all the circumstances surrounding officer’s use
of force). Therefore, events preceding Plaintiff exiting his vehicle are relevant to
determine the reasonableness of the officers’ actions under the circumstances.
Plaintiff also argues that evidence of anything that happened prior to him
exiting the vehicle would be unfairly prejudicial. Rule 403 provides: “The court may
exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” FED. R. EVID. 403.
It is undisputed that as Plaintiff approached a license/sobriety checkpoint, he
turned his vehicle around to avoid it. See Exhibit A to Response at 1, Barnett v. City
of Laurel, No. 2:18-CV-92-KS-MTP (S.D. Miss. Aug. 19, 2019), ECF No. 228-1. A law
enforcement vehicle followed him and turned on its lights and siren. Id. at 2. Plaintiff
saw the lights and heard the siren, but he did not stop. Id. Instead, he led officers on
a high-speed chase across two counties. Id. at 3-4. He finally stopped because a bridge
16

was out. Id. at 4.
In the Court’s opinion, evidence of Plaintiff’s actions prior to the arrest is
extremely probative of his excessive force claim because the circumstances
surrounding his arrest affected the officers’ perceptions and actions. The Court will
provide clear instructions to the jury regarding the burdens of proof and the elements
of Plaintiff’s claims. The parties may also offer limiting instructions to be provided
contemporaneously with the disputed testimony. These measures should alleviate
any danger of unfair prejudice or confusion. Accordingly, the Court concludes that the
probative value of evidence of Plaintiff’s actions prior to the arrest outweighs the
danger of unfair prejudice. See Smith v. Hunt, 707 F.3d 803, 809-10 (7th Cir. 2013)
(evidence that plaintiff asserting excessive force claims had used heroin on the day of
his arrest was not unfairly prejudicial); Whitehead v. Bond, 680 F.3d 919, 930-31 (7th
Cir. 2012) (evidence of plaintiff’s family’s conduct prior to plaintiff’s arrest was not
unfairly prejudicial); Luka v. City of Orlando, 382 F. App’x 840, 842 (11th Cir. 2010)
(probative value of evidence of plaintiff’s conduct leading up to arrest outweighed
danger of unfair prejudice). For all of these reasons, the Court denies Plaintiff’s
Motion in Limine [210].
IV. CONCLUSION
For these reasons, the Court grants in part and denies in part the City of
Laurel’s Motion to Disallow [193] Plaintiff’s experts. Specifically:
•

The Court grants the motion as to the expert testimony of Bill
Brister, Kathy Smith, and Robert Davis.
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•

The Court grants the motion as to Roy Taylor’s opinion testimony
regarding the reasonableness of the officers’ use of force, but the
Court denies it as to Taylor’s testimony regarding proper police
procedures.

•

The Court grants the motion with respect to Roy Taylor’s opinion
testimony about the culture of the Laurel Police Department,
contained in paragraph 21 of his report.

•

The Court denies the motion with respect to Roy Taylor’s
recitation of the facts underlying his opinions.

•

The Court grants the motion with respect to any testimony from
Dr. Arremmia Tanious outside the scope of the medical records
that have been produced to Defendants.

The Court also denies Plaintiff’s Motion in Limine [210].
SO ORDERED AND ADJUDGED this 6th day of November, 2019.
/s/

Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

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