Smith v. City of Dalles
Filing
147
Opinion and Order Denying Defendants' Motion Challenging Plaintiff's Expert Witness Testimony - The Court DENIES Defendants' Motion in Limine Against Plaintiff's Proposed Expert, Ms. Jonicia June Shelton (ECF 110 ), although the precise dimensions and scope of Ms. Shelton's trial testimony will need to be further addressed at the pretrial conference. Signed on 5/13/2021 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RONNIE SMITH,
Case No. 6:16-cv-1771-SI
Plaintiff,
OPINION AND ORDER DENYING
DEFENDANTS’ MOTION
CHALLENGING PLAINTIFF’S
EXPERT WITNESS TESTIMONY
v.
CITY OF THE DALLES, a Municipal
corporation, and KOJI NAGAMATSU, in his
individual and official capacities,
Defendants.
Michael H. Simon, District Judge.
Plaintiff Ronnie Smith has designated as Plaintiff’s expert witness Ms. Jonicia June
Shelton, MA, CSWA, QMHP. Plaintiff states:
Ms. Shelton will offer her opinion that plaintiff experienced the
events of May 28, 2015 as a trauma, which was exacerbated in the
June 2017 trial, causing Mr. Smith mental distress throughout and
since. She will opine on the nature of the harm, and on possible
actions that could be taken to redress that harm, at least in part.
*
*
*
Ms. Shelton’s opinions focus on how the May 2015 incident and
its aftermath (including the trial) affected Plaintiff Smith, as he
was in May 2015, June 2017, and today. Her opinions take the
plaintiff as we find him, then and now. (Consistent with this
approach, plaintiff is seeking an “eggshell plaintiff” jury
instruction.)
ECF 114 at 3-4. Defendants are the City of The Dalles (City) and Officer Koji Nagamatsu, a
police officer employed by the City. As the Court understands Plaintiff’s position, Ms. Shelton
will testify that Plaintiff was more vulnerable to suffering psychological and emotional injury
PAGE 1 – OPINION AND ORDER
from his encounter with Officer Nagamatsu that is at issue in this lawsuit as a result of Plaintiff’s
earlier life experiences. Defendants have moved in limine to exclude the testimony of
Ms. Shelton. ECF 110. For the reasons that follow, the Court denies Defendants’ motion to
exclude Ms. Shelton from testifying, although the precise dimensions and scope of Ms. Shelton’s
trial testimony will need to be further addressed at the pretrial conference.
BACKGROUND
Plaintiff states in his Trial Brief (ECF 121) that the following claims remain for trial:
(a) four claims under 42 U.S.C. § 1983 brought only against Officer Nagamatsu,1 alleging
violations of Plaintiff’s constitutional rights under the Fourth, Fifth, and Fourteenth
Amendments;2 and (b) one state law claim brought against both Officer Nagamatsu and the City,
alleging false arrest and illegal search in violation of Oregon common law. The Court previously
determined that the period at issue for the false arrest and search and seizure claims (both federal
and state) is the investigatory stop, when Officer Nagamatsu placed Plaintiff in handcuffs,
performed a pat-down search, and reached into Plaintiff’s pocket and withdrew several crumpled
bills of money.3 Soon thereafter, eyewitnesses identified Plaintiff, and Officer Nagamatsu then
The Court previously granted summary judgment in favor of the City on Plaintiff’s
municipal liability claim under § 1983. ECF 70 at 7.
1
2
In his Trial Brief, Plaintiff asserts that the four claims under § 1983 to be tried are:
(a) false arrest in violation of the Fourth Amendment; (b) unlawful search and seizure in
violation of the Fourth Amendment; (c) unlawful use of Plaintiff’s statements made before
Plaintiff was advised of his Miranda rights in violation of the Fifth Amendment; and
(d) violation of Plaintiff’s due process rights under the Fourteenth Amendment relating to a “lost
video.” The Court plans to discuss Plaintiff’s “lost video” claim at the upcoming pretrial
conference.
The Court denied in part Defendants’ motion for summary judgment, finding an issue of
fact regarding whether the Officer Nagamatsu’s initial stop and handcuffing of Plaintiff was
proper under Terry v. Ohio, 392 U.S. 1 (1968).
3
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placed Plaintiff under arrest. The Court previously held that Officer Nagamatsu had probable
cause to arrest Plaintiff after—but only after—these eyewitness identifications. ECF 70 at 4.
Plaintiff also asserts that he was questioned by Officer Nagamatsu while in custody but
before Plaintiff received his Miranda warnings. It is undisputed that Officer Nagamatsu
questioned Plaintiff while he was in handcuffs and before giving Plaintiff his Miranda warnings.
The parties dispute the degree of questioning and what specific statements Plaintiff made before
he received his Miranda warnings. Plaintiff alleges that statements he made before being given
his Miranda rights were later used against him at trial in violation of the Fifth Amendment. This
serves as the basis for one of Plaintiff’s claims under § 1983. See Tekoh v. County of Los
Angeles, 985 F.3d 713 (9th Cir. 2021).
STANDARDS
The United States Court of Appeals for the Ninth Circuit has discussed the standard
under which a district court should consider the admissibility of expert testimony. See City of
Pomona v. SQM N. Am. Corp., 750 F.3d 1036 (9th Cir. 2014). As explained by the Ninth Circuit:
Rule 702 of the Federal Rules of Evidence provides that expert
opinion evidence is admissible if: (1) the witness is sufficiently
qualified as an expert by knowledge, skill, experience, training, or
education; (2) the scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; (3) the testimony is based on sufficient
facts or data; (4) the testimony is the product of reliable principles
and methods; and (5) the expert has reliably applied the relevant
principles and methods to the facts of the case. Fed. R. Evid. 702.
Under Daubert and its progeny, including Daubert II [Daubert v.
Merrell Dow Pharms, Inc., 43 F.3d 1311 (9th Cir. 1995)], a district
court’s inquiry into admissibility is a flexible one. Alaska Rent-ACar, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th
Cir. 2013). In evaluating proffered expert testimony, the trial court
is “a gatekeeper, not a fact finder.” Primiano v. Cook, 598 F.3d
558, 565 (9th Cir. 2010) (citation and quotation marks omitted).
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“[T]he trial court must assure that the expert testimony ‘both rests
on a reliable foundation and is relevant to the task at hand.’” Id.
at 564 (quoting Daubert, 509 U.S. at 597). “Expert opinion
testimony is relevant if the knowledge underlying it has a valid
connection to the pertinent inquiry. And it is reliable if the
knowledge underlying it has a reliable basis in the knowledge and
experience of the relevant discipline.” Id. at 565 (citation and
internal quotation marks omitted). “Shaky but admissible evidence
is to be attacked by cross examination, contrary evidence, and
attention to the burden of proof, not exclusion.” Id. at 564 (citation
omitted). The judge is “supposed to screen the jury from unreliable
nonsense opinions, but not exclude opinions merely because they
are impeachable.” Alaska Rent-A-Car, 738 F.3d at 969. Simply
put, “[t]he district court is not tasked with deciding whether the
expert is right or wrong, just whether his testimony has substance
such that it would be helpful to a jury.” Id. at 969-70.
The test of reliability is flexible. Estate of Barabin v.
AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (en banc).
The court must assess the expert’s reasoning or methodology,
using as appropriate criteria such as testability, publication in peerreviewed literature, known or potential error rate, and general
acceptance. Id.; see also Primiano, 598 F.3d at 564. But these
factors are “meant to be helpful, not definitive, and the trial court
has discretion to decide how to test an expert’s reliability as well as
whether the testimony is reliable, based on the particular
circumstances of the particular case.” Primiano, 598 F.3d at 564
(citations and quotation marks omitted); see also Barabin, 740
F.3d at 463. The test “is not the correctness of the expert’s
conclusions but the soundness of his methodology,” and when an
expert meets the threshold established by Rule 702, the expert may
testify and the fact finder decides how much weight to give that
testimony. Primiano, 598 F.3d at 564-65. Challenges that go to the
weight of the evidence are within the province of a fact finder, not
a trial court judge. A district court should not make credibility
determinations that are reserved for the jury.
Id. at 1043-44 (case citation alterations added, remaining alterations in original).
“It is the proponent of the expert who has the burden of proving admissibility.” Lust v.
Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). Admissibility of the expert’s
proposed testimony must be established by a preponderance of the evidence. See Daubert, 509
U.S. at 592 n.10 (citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)). The party
PAGE 4 – OPINION AND ORDER
presenting the expert must show that the expert’s findings are based on sound principles and that
they are capable of independent validation. Daubert II, 43 F.3d at 1316.
DISCUSSION
Defendants raise several arguments to exclude Ms. Shelton’s testimony. Defendants
argue: (1) Ms. Shelton is not sufficiently qualified to serve as an expert; (2) her opinion relates to
racial discrimination and thus is irrelevant in this case; (3) her opinion is not based on adequate
information; (4) Plaintiff can sufficiently explain his injuries to the jury; (5) Ms. Shelton’s
opinion does not rule out alternative causes of Plaintiff’s conditions; and (6) her opinion relies on
race-based traumatic theory, which is unreliable and inapplicable in this case. The Court
addresses each argument in turn.
A. Qualifications
Defendants’ primary argument against Ms. Shelton’s qualifications is that although she is
qualified to opine about racial discrimination, she is not qualified to opine about any matters that
are relevant to this case. The Court disagrees and finds that Ms. Shelton is qualified to testify as
an expert about the experiences and trauma suffered by Plaintiff and to explain how those
experiences purportedly made him more vulnerable to suffering greater injury from his encounter
with Officer Nagamatsu at issue—essentially, how Plaintiff’s life experiences have made him an
“eggshell” Plaintiff.
Rule 702 endorses experts who qualify based on “knowledge, skill, experience, training
or education.” Ms. Shelton holds a master’s degree in Social Work, has worked extensively in
positions involving the diagnosis and treatment of mental trauma, and has a “Client Focus” that
includes people of African American background. She is a Clinical Social Work Associate
(CSWA) and a Qualified Mental Health Professional (QMHP) under Oregon law. Thus, she is
qualified as an expert witness, both through her education and her work experience.
PAGE 5 – OPINION AND ORDER
Defendants also argue that Ms. Shelton is not qualified because she erroneously believed
that this case was about Plaintiff’s experiences with all police officers and not just his encounter
with Officer Nagamatsu. The Court does not read her expert report as stating that this case is
about Plaintiff’s entire history of police interactions, but only that his history of trauma makes
him more vulnerable to having a certain reaction from the interaction at issue with Officer
Nagamatsu. If Defendants believe that Ms. Shelton’s deposition testimony erroneously suggested
the former, that goes to the weight and not the admissibility of Ms. Shelton’s opinions.
B. Relevancy
Defendants argue that Ms. Shelton’s opinion is not relevant because she discusses
Plaintiff’s purported previous experiences with racial discrimination by law enforcement and his
experiences with “local” citizens in the City shortly before his encounter with Officer
Nagamatsu. Defendants contend that those experiences are irrelevant to this trial, which is about
Officer Nagamatsu’s conduct, and is unfairly prejudicial to Defendants because they are not
liable for the conduct of other people and this case is not about racial discrimination.
Ms. Shelton’s expert opinion, however, is that those other experiences contributed to Plaintiff’s
vulnerability to suffering greater harm from the encounter with Officer Nagamatsu that is at
issue. This is analogous to evidence of preexisting trauma that makes a plaintiff who was injured
in a low-impact car accident more susceptible to injury from the car accident than would be an
otherwise healthy person. The preexisting trauma is not introduced so that the car accident
defendant could be held liable for the earlier traumas but only to help explain why a seemingly
innocuous or low-impact accident could have caused actual injury to a particular plaintiff.
Similarly, Ms. Shelton’s testimony is relevant to help explain why a brief, negative encounter
with law enforcement might trigger a greater response in some people who have had certain
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previous experiences. Further, any unfair prejudice can be mitigated with appropriate jury
instructions.
Defendants also argue that the Court should exclude Ms. Shelton’s opinion because she
notes a discussion that Defendants characterize as occurring after probable cause to arrest had
been established. The Court, however, found a disputed issue about whether this conversation
occurred before or after probable cause was established. The Court also finds that even if this
conversation occurred after probable cause was established, Ms. Shelton’s highlighting of this
discussion would go to the weight, and not the admissibility, of her opinions.
C. Bases
Defendants argue that Ms. Shelton’s opinions are unreliable and unhelpful because they
are based on a single 30-to-45-minute telephone interview with Plaintiff, Ms. Shelton did not
perform any “objective” testing, she relied on Plaintiff’s subjective reporting, and Ms. Shelton
did not perform any public records search or obtain other information about Plaintiff, such as his
incarceration history. Ms. Shelton testified at deposition that it “usually” takes more than a single
interview to provide enough information for a diagnosis, but that leaves open the possibility that
Plaintiff’s situation fell outside the norm. Indeed, Ms. Shelton submitted a declaration clarifying
that although not usual, it does happen that she can make a diagnosis with one interview, and that
she did so here with Plaintiff, subject to the diagnosis changing after the initial interview.
Further, she has since had an additional interview with Plaintiff, and performed testing, that she
states confirms her original diagnosis. This and Defendants’ other similar challenges go the
weight of Ms. Shelton’s opinion.
D. Plaintiff’s Ability to Articulate His Injury
Defendants argue that Plaintiff can describe what happened with his encounter with
Officer Nagamatsu and how it made Plaintiff feel, as Ms. Shelton explains in her expert report.
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Thus, conclude Defendants, the jury does not need an expert witness on these issues, and one
would not be helpful in this case. Ms. Shelton, however, is not simply describing what happened
between Plaintiff and Officer Nagamatsu and how that made Plaintiff feel. She is an expert on
how Plaintiff’s previous experiences and trauma made him more susceptible to psychological or
emotional injury from his encounter with Officer Nagamatsu. Plaintiff is not an expert in that
field, and he cannot describe how and why he is more susceptible to injury based on his previous
encounters with law enforcement.
E. Differentiating Alternative Causes
Defendants argue that Ms. Shelton fails to distinguish how the traumas that Plaintiff has
previously suffered during his life, including some that she highlights (racial discrimination and
childhood trauma) and some that she omitted (trauma while incarcerated) caused his current
symptoms versus the trauma allegedly caused by Plaintiff’s encounter with Officer Nagamatsu.
This challenge goes the weight of Ms. Shelton’s opinion, not its admissibility.
F. Race-Based Traumatic Stress
Part of Ms. Shelton’s opinion relies on what is referred to as “Race-Based Traumatic
Stress,” a theory first propounded by Robert T. Carter, Ph.D. Professor Carter is Professor
Emeritus of Psychology and Education at Columbia University Teachers College.4 Defendants
argue that this theory is inherently unreliable, that the only legal scholarship that discusses it was
written by its creator, Professor Carter, and that it does not apply in this case because the claims
here do not involve racial discrimination.
As discussed above, the theory (and Ms. Shelton’s mention of “post-traumatic slave
syndrome”) are relevant not to the specific claims at issue but to Plaintiff’s allegedly heightened
4
See https://www.tc.columbia.edu/faculty/rtc10/ (last visited May 13, 2021).
PAGE 8 – OPINION AND ORDER
vulnerability to psychological injury. As for Defendants’ other arguments, the Court has
reviewed the literature and finds the theory sufficiently scientific and vetted to meet the
standards of Rule 702 of the Federal Rules of Civil Procedure. Further, the concept of race-based
discrimination as trauma is not limited to Professor Carter but instead is widely discussed in
professional literature. See, e.g., Noa Ben-Asher, Trauma-Centered Social Justice, 95 Tul. L.
Rev. 95, 113 and nn. 86-91 (2020) (“In the past several decades, mental health experts have
underscored the traumatic impacts of racism in the United States. Several studies have examined
childhood trauma caused by factors such as racism and poverty. Psychologists have developed
models to address trauma caused by racist experiences and micro-aggressions. Scholars have
introduced the concept of historical mass-trauma, which may affect the emotional and physical
health of large populations. The clinical diagnosis of PTSD has been identified as a consequence
of racism. The term ‘post traumatic slave syndrome’ (PTSS) has been coined to mark the
experience of African Americans in relation to historical trauma. Accounts of the racial trauma
caused by the criminal justice system have proliferated.” (footnotes omitted) (gathering
citations)).
CONCLUSION
The Court DENIES Defendants’ Motion in Limine Against Plaintiff’s Proposed Expert,
Ms. Jonicia June Shelton (ECF 110), although the precise dimensions and scope of Ms. Shelton’s
trial testimony will need to be further addressed at the pretrial conference.
IT IS SO ORDERED.
DATED this 13th day of May, 2021.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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