Wagner v. City of Omaha, et al

Filing 213

MEMORANDUM AND ORDER that the plaintiff's motion in limine to bar Dr. Joel Cotton from testifying at trial 143 is denied. The plaintiff's motion in limine to bar Bruce Siddle from testifying at trial 154 is granted in part and denied in part as set forth in this order. The defendants' motion in limine to exclude unidentified expert witnesses 178 is denied as moot. Ordered by Judge Joseph F. Bataillon. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT WAGNER,
Plaintiff,

8:12CV392

vs.
MEMORANDUM AND ORDER
CITY OF OMAHA, OMAHA POLICE
OFFICERS JACKIE DOLINSKY, JOSHUA
KELLEY, AARON PENNINGTON, JODI
SAUTTER, SCOTT ZYMBALL, and
MATTHEW KEENAN,
Defendants.

This matter is before the court on the plaintiff’s motion in limine to bar Dr. Joel
Cotton from testifying at trial, Filing No. 143; plaintiff’s motion in limine to bar Bruce
Siddle from testifying at trial, Filing No. 154; and defendants’ motion in limine to exclude
unidentified expert witnesses, Filing No. 178.1 This is an action for violation of civil
rights under 42 U.S.C. § 1983.

The plaintiff alleges the defendant officers used

excessive force in an incident involving the arrest of the plaintiff on May 29, 2011.
I. FACTS
The record shows Dr. Joel Cotton is expected to testify with respect to his
opinions on the factual question of whether any force or trauma inflicted by the
defendants proximately caused Wagner’s alleged injuries.
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Dr. Cotton is a Board

The parties agree in the Order on Pretrial Conference that

It is understood that, except upon a showing of good cause, no witness whose name and
address does not appear herein shall be permitted to testify over objection for any
purpose except impeachment[, and that those witnesses] whose only testimony is
intended to establish foundation . . . shall not be permitted to testify for any other
purpose. . . .
Filing No. 204 at ECF p.5, Order on Pretrial Conference at 5. Accordingly, the defendants’ motion to bar
such testimony will be denied as moot.

Certified Neurologist. The plaintiff does not challenge his qualifications, but argues that
his expert report does not explain the basis for his opinion, fails to show that he used an
acceptable methodology, and fails to provide sufficient detail.

The plaintiff further

argues that Dr. Cotton’s opinions are irrelevant.
Dr. Bruce Siddle is a “use of force and high-risk human factors specialist,” who
states his role is to “support the Court and jury with experience-based insights within the
scope of [his] expertise, including current use of force training practices, past and
present research that has been conducted within the field of use of force or high-risk
human factors, and whether the officer’s actions were consistent with current use of
force training and research following the Graham v. Connor decision.” Filing No. 156-1,
Ex. A, Report of Bruce Siddle at 4. He is expected to testify generally with respect to
use-of-force training and standards and also with respect to “research that examines
how survival stress influences perceptions, decision-making, the ability to perform
precision motor skills during a use of force event, as well as how stress can influence
the memories surrounding high-stress events.”2 Id. at 3.
The plaintiff argues that Siddle’s testimony is irrelevant, confusing, and
misleading and would invade the province of the jury. Further, the plaintiff argues that
Siddle’s conclusions are not based on a reliable methodology or theory and Siddle is
not qualified to provide any psychological, medical, or scientific explanation for
discrepancies in an officer’s memory or perceptions during allegedly high-stress or highrisk situations.

The plaintiff’s motion is based in part on Siddle’s testimony at an

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He claims to have conducted several studies on “Critical Incident Amnesia” phenomena,
including a study titled Triggering the Survival Circuit, Siddle & Siddle (2004) and Identifying the Biological
Limits of Firefight Performance (2013). These articles are not in the record.
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arbitration deposition that shows that Siddle intends to offer improper legal conclusions
on the reasonableness of the defendants’ conduct in light of Fourth Amendment
standards.3

In response, defendants state that they “have never represented that

Siddle will opine on that ultimate issue left to the jury here.” Filing No. 165, Defendants’
Brief at 9.
II. LAW
Admissibility of expert testimony is governed by Federal Rules of Evidence 702
and 703. Johnson v. Mead Johnson & Co., LLC, — F.3d —, 2014 WL 2535324, *3 (8th
Cir. June 6, 2014). The screening requirement of Rule 702 boils down to a three-part
test:
First, evidence based on scientific, technical, or other specialized
knowledge must be useful to the finder of fact in deciding the ultimate issue
of fact. This is the basic rule of relevancy. Second, the proposed witness
must be qualified to assist the finder of fact. Third, the proposed evidence
must be reliable or trustworthy in an evidentiary sense, so that, if the finder
of fact accepts it as true, it provides the assistance the finder of fact
requires.
Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008); Johnson, 2014 WL 2535324
at *2-*3.

Rule 702 mandates that the district court screen the admission of novel

scientific evidence, and the court must conclude that the proposed testimony is
“scientific knowledge, derived from the scientific method, that will assist the trier of fact,
i.e., is relevant.” Johnson, 2014 WL 2535324 at *3. “The district court’s screening
‘entails a preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that reasoning or methodology

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In the arbitration deposition, Siddle testified “My opinion is that Aaron Pennington is not guilty of
excessive force.” Filing No. 156-3 at ECF p. 60, Index of Evid., Ex. B, Bruce Siddle Deposition Excerpt at
60 (Doc # 156-3, Page ID # 2174).
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properly can be applied to the facts in issue.’“ Id. (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993)).

“While the Daubert Court

acknowledged that many factors would be instructive to the district court, it focused on
four non-exclusive factors: (1) whether the scientific technique can be or has been
tested; (2) whether the theory or technique has been subjected to peer review and/or
publication; (3) the known rate of error for the technique or theory and the applicable
standards for operation; and (4) whether the technique is generally accepted.” Id.
The United States Court of Appeals for the Eighth Circuit recently stated that
“cases are legion that, correctly, under Daubert, call for the liberal admission of expert
testimony.” Id. at *4; see, e.g., United States v. Finch, 630 F.3d 1057, 1062 (8th Cir.
2011) (holding that doubts about the usefulness of expert testimony are resolved in
favor of admissibility); Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir.
2006) (holding that expert testimony should be admitted if it “advances the trier of fact’s
understanding to any degree” (quotation omitted)); Lauzon v. Senco Prods., Inc., 270
F.3d 681, 686 (8th Cir. 2001) (Rule 702 “clearly is [a rule] of admissibility rather than
exclusion” (internal quotation omitted)); Wood v. Minnesota Mining & Mfg. Co., 112 F.3d
306, 309 (8th Cir. 1997) (holding that exclusion of expert’s opinion is proper “only if it is
so fundamentally unsupported that it can offer no assistance to the jury” (internal
quotation omitted)). Further, district courts are admonished not to weigh or assess the
correctness of competing expert opinions. Johnson, 2014 WL 2535324 at *4; Kuhn v.
Wyeth, 686 F.3d 618, 625 (8th Cir. 2012). As long as the expert’s scientific testimony
rests upon “good grounds, based on what is known” it should be tested by the
adversary process with competing expert testimony and cross-examination, rather than

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excluded by the court at the outset. Johnson, 2014 WL 2535324 at *4 (quoting Daubert,
509 U.S. at 590, 596).
Expert evidence is not objectionable because it embraces an ultimate issue to be
decided by the jury. Fed. R. Evid. 704(a); Lee v. Andersen, 616 F.3d 803, 808-09 (8th
Cir. 2010); see Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994) (explaining that
“[a]lthough an expert’s opinion may ‘embrace[ ] an ultimate issue to be decided by the
trier of fact[,]’ Fed. R. Evid. 704(a), the issue embraced must be a factual one.”). Expert
opinions based on industry or institutional practices and standards are generally
admissible. See Southern Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc.,
320 F.3d 838, 841 (8th Cir. 2003) (explaining that expert testimony on legal matters is
not admissible, but testimony on “industry practice or standards” may be relevant and
expert or fact testimony on what these are is often admissible); Peterson v. City of
Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) (expert testimony on reasonableness of
police behavior in light of Fourth Amendment standards is statement of legal
conclusions and is not admissible).
Also, an expert is not allowed to opine on a factual matter on which the jurors are
entirely capable of making a determination—such as the amount of force—nor is he
allowed to offer an opinion about the truthfulness of witness testimony. Westcott v.
Crinklaw, 68 F.3d 1073, 1076-77 (the issue of credibility should be “left in the exclusive
province of the jury”). “If the subject matter is within the jury’s knowledge or experience,
however, the expert testimony remains subject to exclusion ‘because the testimony
does not then meet the helpfulness criterion of Rule 702.’“ Id. at 809 (quoting United
States v. Arenal, 768 F.2d 263, 269 (8th Cir. 1985)). An expert opinion about what is

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shown on videotape is inadmissible because it would not assist the jury “but rather
would have told it what result to reach.” Lee, 616 F.3d at 809. A jury is entirely capable
of analyzing the images. Id. An expert’s testimony may be excluded on “reliability”
grounds if it is “‘so fundamentally unsupported that it can offer no assistance to the
jury.’” Polski, 538 F.3d at 839.
With respect to medical testimony, the Eighth Circuit has held that the process of
differential diagnosis “is acceptable causation testimony” under Daubert and “in fact
[has] termed it ‘presumptively admissible,’ noting that a district court may not exclude
such expert testimony unless the diagnoses are ‘scientifically invalid.’” Johnson, 2014
WL 2535324 at *6 n.2 (quoting Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989
(8th Cir. 2001) (per curiam)).
III. DISCUSSION
The court finds both Dr. Cotton and Mr. Siddle appear to be generally qualified to
testify as expert witnesses. Dr. Cotton proposes to offer his specialized knowledge as a
Board Certified Neurologist on medical questions beyond the knowledge of the jury.
The defendants have shown that Siddle may have specialized knowledge and expertise
in police training and procedures. Accordingly, he will be allowed to testify, generally,
with respect to those issues. Defendants represent that they do not intend to offer
testimony on the ultimate issue of whether the defendants’ actions were reasonable.
Nevertheless, evidence on some issues may be problematic—whether a reasonable
officer would think Wagner’s actions were aggressive or attempts to incite a crowd, and
whether or not Wagner “assaulted” an officer appear not to require the assistance of an
expert; they are factual disputes on which the jury can make its own findings.

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It is difficult to evaluate the evidence in the context of a pretrial motion without full
development of the record with respect to foundation and relevance.

Some of the

plaintiff’s contentions may properly be objections that can be addressed at trial. The
court will admit the evidence at issue only on a showing that it is relevant to the issues
in the case, and only to the extent that the relevance of the evidence outweighs its
potential to cause prejudice or confusion under Fed. R. Evid. 403. Accordingly, the
court will deny the motion in limine with respect to Siddle’s use-of-force training and
procedures testimony at this time without prejudice to reassertion at trial. The issues
can be adequately addressed either in a hearing immediately prior to commencement of
the trial, as an objection with a sidebar, or with a review of the evidence outside the
presence of the jury.
Siddle’s purported testimony on “Critical Incident Amnesia” and other perceptions
or responses by the defendant officers presents a different issue. The defendants have
not established that the testimony is reliable and trustworthy. The defendants do not
dispute that Siddle has no medical, scientific, social science, or psychological training,
education, or experience that relates to sensory perception. Filing No. 165, Defendants’
Brief at 18-19. The court has reviewed Siddle’s Curriculum Vitae and finds that it shows
he has specialized knowledge in law enforcement training, but his qualifications with
respect to law enforcement responses or reactions to stress are exceedingly thin. See
Filing No. 156-4 and Filing No. 156-5, Index of Evid., Exs. C & D. The court has not
been presented with evidence that Siddle’s testimony on brain function, memory,
perception, or stress-responses has been admitted into evidence in other cases, nor
have the defendants shown that his techniques or methods have been tested, subjected

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to peer review, and/or generally accepted.

He has apparently authored numerous

articles and conducted some research but there is no showing that his research or
methodology is scientifically valid or that his conclusions are generally accepted or
applied.

Without such a showing, his opinions are neither relevant nor helpful.

Accordingly, the plaintiff’s motion in limine should be granted with respect to Siddle’s
opinions on stress responses, memory, and high-risk human factors.
IT IS ORDERED :
1.

The plaintiff’s motion in limine to bar Dr. Joel Cotton from testifying at trial

(Filing No. 143) is denied.
2. The plaintiff’s motion in limine to bar Bruce Siddle from testifying at trial (Filing
No. 154) is granted in part and denied in part as set forth in this order.
3. The defendants’ motion in limine to exclude unidentified expert witnesses
(Filing No. 178) is denied as moot.
DATED this 7th day of July, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

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