Eberhardinger v. City of York et al

Filing 163

ORDER GRANTING IN PART & DENYING IN PART Officer Smith's omnibus MIL 127 ... (see Paras 1a-e for specifics), & DENYING pltf's motion 134 to strike. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 10/29/19. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ERIKA EBERHARDINGER,
Plaintiff
v.
CITY OF YORK, et al.,
Defendants

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CIVIL ACTION NO. 1:16-CV-2481
(Chief Judge Conner)

ORDER
AND NOW, this 29th day of October, 2019, upon consideration of the omnibus
motion (Doc. 127) in limine filed by defendant Benjamin Smith (“Officer Smith”), 1
in which Officer Smith seeks exclusion of (1) testimony and the expert report from
plaintiff’s proffered expert, Dr. Geoffrey P. Alpert (“Dr. Alpert”); (2) any evidence of
Officer Smith’s personnel or disciplinary history; (3) any references or evidence
related to the City of York’s use-of-force policy “and alternative uses of force”; and
(4) any “testimony concerning prognosis and future treatment” from plaintiff’s
treating physicians, and the court observing first that Dr. Alpert is qualified in the
field of police use of force and that he based his report’s relevant conclusions on
sufficiently reliable methodology, research, and data, (see Doc. 128 at 1); Champion
v. Outlook Nashville, Inc., 380 F.3d 893, 907-09 (6th Cir. 2004); see generally Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); FED. R. EVID. 702; second, that

1

Plaintiff moved to strike Officer Smith’s motion, as it was filed outside the
established case management deadlines. (See Doc. 134). Due to the extended stay
in this case involving the interlocutory appeal, and because plaintiff has not
demonstrated any substantial prejudice from the court considering Officer Smith’s
late-filed motion, we will deny the motion to strike and consider the merits of the
omnibus motion in limine.

plaintiff avers that she does not intend to present any personnel or disciplinary
history for Officer Smith that would implicate Federal Rule of Evidence 404(b) but
reserves the right to use any such information to impeach under Rule 608 if
appropriate, (see Doc. 135 at 7-8); third, that the City of York’s use-of-force policy
and availability of alternative use-of-force measures are permissible areas of inquiry
because they are relevant to whether the force used in the instant case was
reasonable under the circumstances, 2 and fourth, that, contrary to Officer Smith’s
contention, plaintiff’s treating physicians are in the best position to provide expert
medical testimony as to their treatment of plaintiff and to opine—if able—on
plaintiff’s need for future treatment and potential for recovery, so long as those

2

See, e.g., Abraham v. Raso, 183 F.3d 279, 295-96 (3d Cir. 1999) (noting that
some courts have found that “where an officer’s conduct amounted to more than a
minor departure from internal department policy, . . . the officer’s acts creating the
need for force are important in evaluating the reasonableness of the officer’s
eventual use of force” (citations omitted)); Zimmerman v. Schaeffer, 654 F. Supp. 2d
226, 231-32, 235, 249-50 (M.D. Pa. 2009) (considering various use-of-force policies in
denying summary judgment on Eighth Amendment excessive-force claims); Grant
v. Winik, 948 F. Supp. 2d 480, 504-05 (E.D. Pa. 2013) (considering township policy
regarding use of pepper spray as relevant to use-of-force reasonableness inquiry).
We note that, if there were no viable alternatives to the use of deadly force,
such information would be critical to a determination of the reasonableness of
Officer Smith’s actions. Logic thus dictates that whether alternate, non-lethal
options were available to Officer Smith is a relevant and permissible area of inquiry.
See Davis v. Grynkewicz, No. 1:12-CV-587, 2013 WL 2249294, at *3-4 (M.D. Pa. May
22, 2013) (Conner, C.J.). We further observe that Officer Smith’s proposed order for
his motion in limine discusses only the City of York’s use-of-force policy, (see Doc.
127-1), but in his briefing and during the October 23, 2019 pretrial conference, other
written documents were mentioned, including “Act 120” and Army Reserve firearm
training materials, (see, e.g., Doc. 127-2 at 10; Doc. 150-1 at 1). Without more detail
as to the content of these materials and Officer Smith’s exposure thereto, we decline
to preclude them wholesale prior to trial.
2

opinions meet the requirements of Daubert and Rule 702, it is hereby ORDERED
that:
1.

Officer Smith’s omnibus motion (Doc. 127) in limine is GRANTED in
part and DENIED in part, as follows:
a.

b.

The “Opinions and Conclusions” section of Dr. Alpert’s report
(Doc. 128 at 5-6) is admissible in part. Any portion of that
section involving ultimate legal conclusion concerning the
reasonableness of Officer Smith’s use of force is inadmissible.
Any portion discussing plaintiff’s injuries and causation is
likewise inadmissible, as these issues are beyond the scope of
Dr. Alpert’s field of expertise.

c.

Evidence regarding Officer Smith’s personnel and disciplinary
history is conditionally precluded, subject to limited
admissibility under Federal Rule of Evidence 608(b) if that rule’s
requirements are satisfied.

d.

The City of York’s use-of-force policy and whether alternatives
to the use of deadly force were available are permissible areas of
inquiry.

e.

2.

Plaintiff’s proffered expert, Dr. Alpert, may testify as an expert
in the field of police use of force. However, Dr. Alpert shall not
testify as to his opinion regarding ultimate legal conclusions
concerning the reasonableness of Officer Smith’s use of force.

Plaintiff’s treating physicians, Dr. Todd Seitz and Dr. Richard
Trevino, may offer expert testimony regarding their medical
opinions concerning plaintiff’s treatment and potential for
recovery, so long as those opinions meet the requirements of
Daubert and Federal Rule of Evidence 702.

Plaintiff’s motion (Doc. 134) to strike is DENIED.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania