COOK, et al v. RILEY, et al
Filing
84
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 6/18/2012, that Defendants' Motion to Strike Plaintiff's [sic] Expert Designations (Docket Entry 32 ) is DENIED. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DALE F. COOK and TAMMY LYNN
COOK, individually and upon
the relation
the State of North Carolina,
Plaintiffs,
v.
BRAD RILEY, individually
and in his official capacity
as Sheriff of Cabarrus
County, North Carolina;
JASON THOMAS, individually
and in his official capacity
as Deputy Sheriff of
Cabarrus County;
ROBERT WENSIL, individually
and in his official capacity
as Deputy Sheriff of
Cabarrus County; and
PENNSYLVANIA NATIONAL
MUTUAL CASUALTY INSURANCE
COMPANY, a corporation, in
its capacity as Surety on
the official bond of
the Sheriff of Cabarrus
County,
Defendants.
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1:11CV24
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendants’ Motion to
Strike Plaintiff’s [sic] Expert Designations (Docket Entry 32).
(See Docket Entry dated May 31, 2012.)
For the reasons that
follow, the Court will deny the instant Motion.
Background
This case arises from Defendant Cabarrus County Deputy Sheriff
Jason Thomas’s deployment of a TASER against Plaintiff Dale F.
Cook.
(See Docket Entry 1.)
Deputy Thomas and Defendant Sergeant
Robert Wensil (also from the Cabarrus County Sheriff’s Office)
responded to the home of Mr. Cook and his wife, Plaintiff Tammy
Lynn Cook, to serve a warrant Mrs. Cook took out on Mr. Cook.
(Docket Entry 33 at 1-2.)
Deputy Thomas ultimately deployed his
TASER against Mr. Cook, who was seated in a tree stand behind the
home.
(Docket Entry 33 at 2; Docket Entry 40 at 2.)
Mr. Cook
allegedly fell from the stand as a result and suffered serious
injuries.
(Docket Entry 33 at 2; Docket Entry 40 at 2.)
Plaintiffs then brought this suit against Deputy Thomas,
Sergeant Wensil, Defendant Cabarrus County Sheriff Brad Riley, and
Defendant Pennsylvania National Mutual Casualty Insurance Company,
the surety of the Cabarrus County Sheriff, alleging excessive force
in
violation
of
the
Fourth
Amendment
of
the
United
States
Constitution and related state law claims. (Docket Entry 1; Docket
Entry 33 at 1; Docket Entry 40 at 2.) During discovery, Plaintiffs
“identified Dave F. Cloutier, Jr. and Jon D. Perry as expert
witnesses in the field of law enforcement.”
2.)
(Docket Entry 40 at
Defendants have now moved to strike those designations.
(Docket Entry 32.)
Plaintiffs timely filed a response (Docket
Entry 40) to which Defendants replied (Docket Entry 67).
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Discussion
Defendants
“move
the
Court
for
an
Order
striking
the
Designations of the Plaintiff’s [sic] Experts Dave F. Cloutier and
Jon D. Perry on the grounds that their opinions, as expressed in
their reports and depositions, are inadmissible under Rules 403,
702 and 703 of the Federal Rules of Evidence . . . .”
(Docket
Entry 32 at 1 (capitalization as in original).)
Rule 403 allows a court to “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.
Rule 702 states:
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.
Rule 703 reads:
[a]n expert may base an opinion on facts or data in the
case that the expert has been made aware of or personally
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observed.
If experts in the particular field would
reasonably rely on those kinds of facts or data in
forming an opinion on the subject, they need not be
admissible for the opinion to be admitted. 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
evaluate the opinion substantially outweighs their
prejudicial effect.
Fed. R. Evid. 703.
Although Defendants cite Rules 403 and 703 (Docket Entry 32 at
1; Docket Entry 33 at 1), the argument they develop focuses only on
Rule 702 (see Docket Entry 33).
Dave F. Cloutier
Plaintiffs identified Mr. Cloutier as a law enforcement expert
“who specializes in use of force, crime scene investigation, and
criminal investigative procedures.”
(Docket Entry 40 at 3.)
Mr.
Cloutier’s report leads off with two opinions:
(1) Based upon my training, experience, education and
knowledge, the defendant officers in this matter utilized
excessive, unreasonable and disproportionate force in
light of the totality of circumstances as described by
the plaintiff and witnesses. This opinion is further
substantiated by the absence of pertinent physical
evidence described by the defendants.
(2) Based upon my training, education, knowledge and
experience, the defendant officers’ actions exhibited a
gross and reckless disregard relative to the safety of
the plaintiff, Dale F. Cook in this matter; actions that
were negligent and inconsistent with standard law
enforcement training and were more likely than not, the
proximate cause of plaintiff’s egregious injury.
(Docket Entry 33-3 at 5 (emphasis added).)
Defendants argue that
the Court should strike Mr. Cloutier’s designation because these
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opinions “merely state legal conclusions that are not helpful to
the jury in its determination, and ultimately invade the province
of the jury.”
(Docket Entry 33 at 2.)
Defendants do not object to
Mr. Cloutier’s qualifications as an expert.
(See id. at 2-4.)
Rule 702 allows expert testimony “on scientific matters,
technical matters, or matters involving other specialized knowledge
so
long
as
the
testimony
will
assist
the
trier
of
understand the evidence or to determine a fact in issue.”
fact
to
United
States v. Offill, 666 F.3d 168, 175 (4th Cir. 2011) (emphasis in
original) (internal quotation marks omitted).
“The touchstone of
the rule is whether the testimony will assist the jury.”
Id.
“Expert testimony that merely states a legal conclusion is less
likely to assist the jury in its determination.”
United States v.
Barile, 286 F.3d 749, 760 (4th Cir. 2002).
Fourth Circuit precedent indicates that an expert’s submission
of legally conclusive opinions does not by itself provide grounds
to strike the designation of an expert in a case like this one.
In
Kopf v. Skyrm, 993 F.2d 374, 377-79 (4th Cir. 1993), the Fourth
Circuit found that the district court abused its discretion by
excluding
an
expert’s
testimony
in
an
excessive
force
involving the use of a police dog and a slapjack on a suspect.
case
The
court noted first that an expert’s opinion “is not objectionable
simply because it embraces an ultimate issue to be decided by the
trier of fact, though such an opinion may be excluded if it is not
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helpful to the trier of fact under Rule 702.”
(internal quotations and citations omitted).
Id. at 377-78
It went on to hold
that, even if the expert’s ultimate conclusion was inadmissible,
that
fact
“does
altogether.”
not
necessarily
banish
him
from
the
stand
Id. at 378.
The Fourth Circuit further observed that “[t]he facts of every
case will determine whether expert testimony would assist the
jury.”
Id. at 379.
Where the force used is “reduced to its most
primitive form - the bare hands - expert testimony might not be
helpful.”
Id.
But as the tool used becomes more specialized,
expert testimony generally becomes more helpful. Id. Although the
court found that a layperson readily may understand the damage
potentially caused by a “club” (i.e., a slapjack), it ruled that
the expert “should clearly have been permitted to testify as to the
prevailing standard of conduct for the use of slapjacks, even if he
had been precluded from giving an opinion on the ultimate issue of
whether the use in [that particular] case was reasonable.”
Id.
Plaintiffs in the instant case concede that Mr. Cloutier’s
legal conclusions may not be admissible at trial. (Docket Entry 40
at
11-12.)
They
rightly
point
out,
however,
that
the
inadmissibility of such opinions fails to afford grounds for
striking his designation completely.
Like the expert in Kopf, Mr.
Cloutier arguably could provide testimony about standard practices
regarding the use of TASERs that the trial judge might find helpful
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to the jury.
In addition, as Plaintiffs have argued, a TASER
represents a more specialized tool than a club (or perhaps even a
gun) and thus Mr. Cloutier may offer information about TASERs
themselves, including how they work and what kind of effect they
have on a subject, that the trial judge deems helpful to the jury.
(See Docket Entry 40 at 4 (citing Docket Entry 33-3 at 5-7; Docket
Entry 47 at 73-74).)
Finally, the Fourth Circuit has noted that
where (as in excessive force cases) the applicable standard “is not
defined by the generic - a reasonable person - but rather by the
specific - a reasonable officer - it is more likely that Rule 702’s
line between common and specialized knowledge has been crossed.”
Kopf, 993 F.2d at 378 (emphasis in original).
Mr. Cloutier’s
opinions about the conduct of Deputy Thomas and Sergeant Wensil
thus may have a greater likelihood of proving useful to the jury.
In sum, Defendants have not shown cause to strike Plaintiffs’
designation of Mr. Cloutier as an expert. Although the trial judge
may not admit testimony from him about some matters, that fact does
not provide sufficient reason to strike his designation. The Court
thus will deny Defendants’ Motion to Strike as to Dave Cloutier.
Jon D. Perry
Plaintiffs designated Mr. Perry as a law enforcement expert
“who specializes in crisis negotiation and criminal investigation
procedures.”
(Docket Entry 40 at 5.)
appears as follows:
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Mr. Perry’s first opinion
Upon receiving information from Mr. Cook’s wife that the
subject had left his residence armed and had walked into
the woods, [Deputy Thomas and Sergeant Wensil] should
have immediately notified their Capt. and requested the
Tactical Team and a negotiator to respond to the scene
for safe recovery of the subject.
(Docket Entry 52-1 at 4.)
Defendants assail this opinion as
“unreliable, irrelevant and therefore inadmissible.” (Docket Entry
33 at 5.)
They claim it “is not based on any standards or
regulations, industry-wide, state imposed or within the Cabarrus
County Sheriff’s Office; it is simply his personal opinion, and
based on speculation.”
(Id.)
Perry’s second opinion.
Defendants do not object to Mr.
(See id. at 5-6.)
Nor do Defendants
contest Mr. Perry’s qualifications as an expert.
(See id.)
Because Defendants object to only one of Mr. Perry’s opinions,
the Court will not strike his designation as an expert.
See Kopf,
993 F.2d at 379 n.3 (“We mean [] to illustrate that difficult
questions of the admissibility of particular portions of a witness’
testimony are best considered individually, and the potential
inadmissibility
of
[the
expert’s]
ultimate
opinion
is
not
a
sufficient basis to wholly bar him from the stand in limine.”).
Nor does the record clearly show that Mr. Perry’s challenged
opinion impermissibly relies on speculation.
“A reliable expert opinion must be based on scientific,
technical, or other specialized knowledge and not on belief or
speculation, and inferences must be derived using scientific or
other valid methods.”
Oglesby v. General Motors Corp., 190 F.3d
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244, 250 (4th Cir. 1999) (emphasis in original) (citing Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 592-93 (1993)).
Defendants refer to a portion of Mr. Perry’s deposition transcript
discussing the point where Deputy Thomas and Sergeant Wensil
allegedly learned from Mrs. Cook that Mr. Cook had walked into the
woods with a gun, wherein Mr. Perry acknowledged that he could not
point to anything “in writing that says in this situation there is
an industry standard that these officers should have called their
captain at that point and requested tactical.” (Docket Entry 52 at
45 (emphasis added).) However, Defendants have not cited authority
establishing that the absence of a written industry rule for the
exact situation law enforcement officers encountered would render
an expert’s opinion wholly speculative. (See Docket Entry 33 at 24.) Mr. Perry demonstrated in his report and resume that he relied
on knowledge derived from his extensive training and experience in
crisis negotiation and criminal investigation in arriving at the
opinions he expressed.
(See Docket Entry 52-1 at 1-4, 9-17.)
Defendants also point to a discussion in a draft of Mr.
Perry’s report in which he notes certain information negotiators
may have uncovered had Deputy Thomas and Sergeant Wensil called on
them for assistance and then states “this is all speculation but
the
realities
of
the
situation
are
that
in
these
types
of
situations time and time again the subject is dissuaded from doing
harm to himself and surrenders.”
(Docket Entry 52 at 52 (quoting
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Docket Entry 52-12 at 6).)
The trial judge will determine whether
or not to admit such testimony.
This discussion by Mr. Perry,
however, does not provide cause to strike his designation as an
expert.
See Kopf, 993 F.2d at 379 n.3.
The Court therefore will
deny Defendant’s Motion to Strike the designation of Mr. Perry.
Conclusion
Defendants have identified insufficient grounds to strike the
designations of Mr. Cloutier and Mr. Perry.
IT IS THEREFORE ORDERED that Defendants’ Motion to Strike
Plaintiff’s [sic] Expert Designations is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 18, 2012
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