Estate of Sydney Burke et al v. Mantua-Shalersville Fire Department et al

Filing 80

Memorandum Opinion and Order granting defendants' motion in limine (Doc. No. 60 ). Plaintiffs' expert, John Coleman, is prohibited from rendering any testimony or opinions regarding (1) whether any of the defendants acted recklessly, wantonly, with malicious purpose, or in bad faith; and (2) whether OAC 4123:1-27-07 applies in this case. (Related Doc. Nos. 64 and 66 .) Judge Sara Lioi on 11/24/2014. (S,He)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ESTATE OF SYDNEY BURKE, et al.
PLAINTIFFS,
vs.
MANTUA-SHALERSVILLE FIRE
DEPT., et al.,
DEFENDANTS.

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CASE NO. 5:13CV761
JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

Before the Court is defendants’ motion in limine seeking an order prohibiting
plaintiffs’ expert, John Coleman, from rendering certain testimony or opinions. (Doc. No. 60.)
Plaintiffs filed a memorandum in opposition (Doc. No. 64) and defendants filed a reply (Doc.
No. 66). The expert report challenged by defendants was supplied by plaintiffs on July 1, 2014.
A copy is attached to plaintiffs’ opposition to the motion in limine. (Doc. No. 64-1.) Defendants
assert that the expert opines that defendants (1) acted recklessly, wantonly, with malicious
purpose, and in bad faith; and (2) violated Ohio laws that are not applicable to this case
(specifically OAC 4123:1-21-07). For the reasons set forth herein, defendants’ motion is
GRANTED.
Part 5 of the expert’s report (beginning at Doc. No. 64-1 at 1618) contains fifteen
“conclusions.” The first of those conclusions states that the defendant fire department acted “in a
wanton manner” and the remaining fourteen conclusions state that various defendants acted “in a
wanton and reckless manner[.]”

Defendants argue that these “conclusions” are aimed at avoiding political
subdivision immunity afforded to defendants when injury, death or loss to person or property
resulted from the exercise of judgment or discretion in determining whether to acquire, or how to
use, equipment, supplies, materials, personnel, facilities, and other resources, unless the
judgment was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
Ohio Rev. Code § 2744.03(A)(5).
Defendants assert that experts are prohibited from rendering the kind of opinions
as to state of mind or culpability that are contained in the conclusions of Coleman’s report.
Defendants further assert that an opinion that conduct was reckless or wanton does not satisfy
any of the requirements of Fed. R. Evid. 702. Defendants are correct.
“Although an expert’s opinion may ‘embrace[ ] an ultimate issue to be decided by
the trier of fact[,]’ the issue embraced must be a factual one.” Berry v. City of Detroit, 25 F.3d
1342, 1353 (6th Cir. 1994) (quoting Fed. R. Evid. 704(a)) (alterations in original). In Berry, the
court determined that, although an “expert can testify, if a proper foundation is laid, that the
discipline in the Detroit Police Department was lax[ ] [and] regarding what he believed to be the
consequence of lax discipline[,] [h]e may not testify [ ] that the lax discipline policies of the
Detroit Police Department indicated that the City was deliberately indifferent to the welfare of its
citizens.” Id. (emphasis in original); see also Cutlip v. City of Toledo, 488 F. App’x 107, 121 (6th
Cir. 2012) (concluding that “[the expert’s] assertion that the police betrayed a conscious
indifference to [a suicidal person’s] life is an improper legal conclusion because it is an opinion
‘that suggest[s] the answer to the ultimate issue or that give[s] the jury all the information from
which it can draw inferences to the ultimate issue[]’”) (quoting Berry, 25 F.3d at 1353).

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Plaintiff’s expert also asserts that OAC 4123:1-21-07 requires the use of an
incident management system at all structure fires and creates a duty to third parties, such as
plaintiffs’ decedent. Defendants argue that this section of Ohio’s administrative code is designed
to protect the firefighters (and other governmental employees), not third parties, and, therefore, is
inapplicable in this case. Whether or not that is true is a matter for another day. At this juncture,
the question is whether it is appropriate for plaintiffs’ expert to opine as to the applicability of
any statute or regulation. The answer is “no,” since this “invade[s] the province of the court to
determine the applicable law and to instruct the jury as to that law.” Torres v. County of
Oakland, 758 F.2d 147, 150 (6th Cir. 1985).
To the extent set forth herein, defendants’ motion in limine is GRANTED.
Plaintiffs’ expert, John Coleman, is prohibited from rendering any testimony or opinions
regarding (1) whether any of the defendants acted recklessly, wantonly, with malicious purpose,
or in bad faith; and (2) whether OAC 4123:1-27-07 applies in this case.1

IT IS SO ORDERED.

Dated: November 24, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

1

In their opposition to the motion in limine, plaintiffs request leave to amend or redact the report of John Coleman,
should the Court not deny the motion. (Doc. No. 64 at 1596.) The Court sees no need for such action as the Court
will simply disregard any improper expert testimony as it undertakes its review of the dispositive motions.

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