White et al v. Jackson et al

Filing 313

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants motion to exclude or limit the testimony of Mr. Robert Pusins [Doc. No. 295 ] is GRANTED in part and DENIED in part. The motion is GRANTED to the extent that Mr. Pusins will not be permitted to testify regarding: (1) whether there was probable cause to arrest Plaintiff Matthews or (2) opinions based solely on the conduct of police agencies other than St. Louis County Police Department. The motion is DENIED in all other re spects. Specifically, Mr. Pusins will be permitted to testify regarding his opinions specific to the conduct of St. Louis County Police Department, including the documentation and review of arrests and the use of force. Signed by District Judge Henry Edward Autrey on 11/13/18. (KJS)

Case: 4:14-cv-01490-HEA Doc. #: 313 Filed: 11/13/18 Page: 1 of 7 PageID #: 4886

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TRACEY WHITE, et al.,

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Plaintiffs,
v.
THOMAS JACKSON, et al.,

Defendants,

Case No. 4:14CV1490 HEA

OPINION, MEMORANDUM AND ORDER
Defendants Belmar, St. Louis County, Vinson, Bates, Patterson and Payne,
have filed a Motion to Exclude Plaintiff’s Expert and For Daubert Hearing [Doc.
No. 295] pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). Plaintiff opposes the motion. A hearing was held on October 31, 2018. The
motion to exclude is fully briefed and ready for disposition. For the following
reasons, Defendants’ motion to exclude Plaintiff’s expert Robert Pusins will be
granted in part and denied in part.
Legal Standard
Factual Basis
"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

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to examine the factual basis for the opinion in cross-examination." Loudermill v.
Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988). See also Fed. R. Evid. 703.
“Vigorous 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 v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 596, 113 S. Ct. 2786, 2798 (1993). Testimony must be excluded
only when it is "so fundamentally unsupported that it can offer no assistance to the
jury." Loudermill, 863 F.2d at 570.
Expert Opinions
Rule 702 requires the trial judge to act as a "gatekeeper," admitting expert
testimony only if it is both relevant and reliable. United States v. Vesey, 338 F.3d
913, 916 (8th Cir. 2003) citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 589 (1993). “Expert testimony should be admitted if it is based on
sufficient facts, it ‘is the product of reliable principles and methods,’ and ‘the
witness has applied the principles and methods reliably to the facts of the case.’”
Vesey, 338 F.3d citing Fed. R. Evid. 702. Defendants do not directly challenge the
reliability of Pusins’ methods, which amounted to assessing the documentation and
review procedures against his understanding of acceptable practices and the
standard of care based on his experience. Instead, Defendants argue that Pusins’

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opinions are based on inaccurate, inapplicable facts and are not relevant to the
legal elements of Plaintiff’s claims.
Discussion
Factual Basis
Defendants argue that Mr. Pusins based his opinions on incorrect
information. Defendants claim that Sgt. Wathen prepared a use of force report,
contrary to Mr. Pusins’ report. If Defendants are correct, Pusins’ understanding
that the use of force report was not filed and reviewed timely may be the subject of
cross examination. Regardless, Pusins’ opinions regarding the reporting and review
of uses of force have a factual basis in the COPS Report and the chain of command
routings of the use of force report filed by Sgt. Wathen. Defendants’ Exhibit A, 15.
Factual Applicability
Defendants question the applicability of the findings of the U.S. Department
of Justice Civil Rights Division Investigation of the Ferguson Police Department
(“DOJ Report”) and After-Action Assessment (“COPS Report”) to the surviving
claims. Defendants are correct that opinions which rely solely upon the DOJ
Report do not relate to the conduct of St. Louis County Police Department and
therefore should be excluded. The DOJ Report refers only to the conduct of the
Ferguson Police Department. Defendants’ Exhibit A, 6-7.
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Defendants argue that the COPS Report is insufficient because it does not
indicate which specific agency engaged in any particular practice, does not
implicate all four agencies in every finding, and does not address the
documentation or review of the use of force. However, the COPS Report details
the specific actions of each police agency and specifies the scope of its findings.
Defendants’ Exhibit F. Similarly, the COPS Report includes factual information
related to incomplete and decentralized documentation during the mass
demonstrations. Defendants’ Exhibit F at 42. Moreover, Mr. Pusins relied on
further sources of information beyond the COPS and DOJ Reports. Defendants’
Exhibit A, 1-5. Therefore, generalities in the COPS Report do not undermine the
basis for Pusins’ opinions.
Relevance of Mr. Pusins’ Opinions
Defendants argue that Mr. Pusins’ opinions do not relate to the remaining §
1983 claims for excessive use of force and the failure to train or supervise. For an
excessive use of force claim, the dispositive question is whether the amount of
force the officer used was objectively reasonable. Graham v. Connor, 490 U.S.
386, 396-97 (1989). Reasonableness of a use of force depends on the
circumstances surround the arrest. Graham, 490 U.S. at 396. In his report, Pusins’
opinion is that the documentation of the arrest and the review of the use of force in
this case did not meet standards and practices in the field of policing. Defendants’
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Exhibit A, 10-17. Pusins further explained that standards are in place to prevent
possible constitutional violations during arrests. Defendants’ Exhibit A at 15.
Therefore, Pusins’ opinions are relevant to the circumstances of the arrest and
whether the alleged acts constituting excessive force in fact occurred.
As for the failure to train or supervise claim, the Court of Appeals for Eighth
Circuit explained on review in White v. Jackson that:
Since § 1983 does not allow for vicarious liability, "a plaintiff must
identify a governmental 'policy or custom that caused the plaintiff's
injury' to recover" under that statute. Id. (quoting Bd. of the Cty.
Comm'rs v. Brown, 520 U.S. 397, 403, 117 S. Ct. 1382, 137 L. Ed. 2d
626 (1997)). Municipal liability will not attach unless individual
liability is "found on an underlying substantive claim." Id. (quoting
McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005)).
White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Plaintiff asserts that Pusins
will testify that St. Louis County created an environment lacking accountability,
based in general on the basis of the COPS Report and specifically on the facts of
the case. Regardless of whether Pusins ultimately determined whether agency
policies caused the alleged constitutional violation as Defendants claim, his
opinion is relevant to whether such an environment existed in the first place.
Defendants also argue that Mr. Pusins’ opinions are related only to the
lawfulness of Plaintiff Matthews’ arrest. Plaintiff responds that the determination
of qualified immunity for the unlawful arrest claim does not preclude liability for
the municipal defendants, citing Owen v. Independence, 445 U.S. 622 (1980).
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However, Plaintiff cannot assert unlawful arrest as a basis for the failure to
supervise claim, since the Court of Appeals for the Eighth Circuit reversed
summary judgment on the failure to supervise claim only so far as it related to the
excessive use of force. White v. Jackson, 865 F.3d 1064, 1081 (8th Cir. 2017).
Moreover, Defendants are correct that Mr. Pusins’ opinions regarding whether
there was probable cause are not relevant or helpful to the trier of fact in
determining the remaining claims.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion to exclude or limit
the testimony of Mr. Robert Pusins [Doc. No. 295] is GRANTED in part and
DENIED in part.
The motion is GRANTED to the extent that Mr. Pusins will not be
permitted to testify regarding: (1) whether there was probable cause to arrest
Plaintiff Matthews or (2) opinions based solely on the conduct of police agencies
other than St. Louis County Police Department.
The motion is DENIED in all other respects. Specifically, Mr. Pusins will
be permitted to testify regarding his opinions specific to the conduct of St. Louis
County Police Department, including the documentation and review of arrests and

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the use of force.
Dated this 13th day of November, 2018.

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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