Johnson et al v. Holmes

Filing 220

MEMORANDUM OPINION and ORDER denying without prejudice 189 Motion to Exclude. Signed by Senior Judge Norman K. Moon on 08/23/2022. (dg)

Case 3:16-cv-00016-NKM-JCH Document 220 Filed 08/23/22 Page 1 of 10 Pageid#: 1383

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
BIANCA JOHNSON, et al.,
Plaintiffs,
LEAD CASE NO. 3:16-cv-00016

v.
ANDREW HOLMES,
Defendant.
LEON POLK, et al.,
Plaintiffs,
v.

CASE NO. 3:16-cv-00017

ANDREW HOLMES,
Defendant.
RODNEY HUBBARD, et al.,
Plaintiffs,
v.

CASE NO. 3:16-cv-00018

ANDREW HOLMES,
Defendant.
CORY GRADY,
Plaintiff,
v.

CASE NO. 3:17-cv-00062

ANDREW HOLMES,
Defendant.
SERGIO HARRIS,
Plaintiff,
v.

CASE NO. 3:17-cv-00079

ANDREW HOLMES, et al.,
Defendants.

1

Case 3:16-cv-00016-NKM-JCH Document 220 Filed 08/23/22 Page 2 of 10 Pageid#: 1384

Memorandum Opinion & Order Denying Plaintiffs’ Motion to Exclude
Plaintiffs have brought these consolidated cases alleging claims of selective enforcement
of the laws and racial profiling primarily by Defendant Officer Holmes, in violation of the Equal
Protection Clause of the Fourteenth Amendment. In anticipation of trial, Plaintiffs have filed a
motion in limine seeking to exclude Defendants’ expert testimony from Dr. Michael Moore. In
support of their motion, Plaintiffs argue that Dr. Moore’s anticipated expert testimony conflicts
with the Fourth Circuit’s (and this Court’s) prior holdings in this case. Plaintiffs further contend
that there is no record evidence to support Dr. Moore’s opinions.
The Fourth Circuit held that Defendants’ proposed enforcement factors did not prevent
Plaintiffs’ statistical evidence from comparing “apples to apples” as a matter of law, and that this
Court had erred in its exclusion of Plaintiffs’ statistical evidence. That opinion, however, did not
preclude Defendants from trying at trial to substantiate legitimate enforcement factors defending
against Plaintiffs’ claims—indeed, the Fourth Circuit expressly acknowledged Defendants could
try to do so. At this point and on this record, the Court has little reason to believe that Dr. Moore
will attempt to testify contrary to the legal principles articulated by the Fourth Circuit’s decision.
If he should try to, Plaintiffs will be able to object at that time. The Court will allow Defendants’
expert testimony, subject to traditional means of challenging such testimony, including crossexamination and presentation of contrary evidence.
Applicable Law
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony.
Rule 702 provides that
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:

2

Case 3:16-cv-00016-NKM-JCH Document 220 Filed 08/23/22 Page 3 of 10 Pageid#: 1385

(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.
Under Rule 702 and pursuant to the Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 789 (1993), the district courts have a “gatekeeping role” so that
they may exclude unreliable expert testimony from the jury’s consideration. 1 These principles
apply to all proposed expert witnesses with specialized knowledge, not just those based on
scientific knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). Expert
testimony is admissible under Rule 702 “if it involves specialized knowledge that will assist the
trier of fact in understanding the evidence or determining a fact in issue, and is both reliable and
relevant.” United States v. Young, 916 F.3d 368, 379 (4th Cir. 2019) (citing Daubert, 509 U.S. at
889–92). There is no requirement that the party seeking to introduce expert testimony “‘prove’
anything to the court before the testimony in question can be admitted,” although, “[a]s in all
questions of admissibility, the proffering party must come forward with evidence from which the
court can determine that the proffered testimony is properly admissible.” Maryland Cas. Co. v.
Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998). 2

1

See also Fed. R. Evid. 702 advisory committee’s note (2000 amends.) (explaining that
the Rule 702 amendment “affirms the trial court’s role as gatekeeper and provides some general
standards that the trial court must use to assess the reliability and helpfulness of proffered expert
testimony”).
2

See also Fed. R. Evid. 702 advisory committee’s note (2000 amends.) (explaining that
“the admissibility of all expert testimony is governed by the principles of Rule 104(a),” and that,
“[u]nder that Rule, the proponent has the burden of establishing that the pertinent admissibility
requirements are met by a preponderance of the evidence”).
3

Case 3:16-cv-00016-NKM-JCH Document 220 Filed 08/23/22 Page 4 of 10 Pageid#: 1386

When considering a challenge to the reliability of expert testimony, courts must consider
the following Daubert factors:
(1) whether a theory or technique can be or has been tested;
(2) whether it has been subjected to peer review and publication;
(3) whether a technique has a high known or potential rate of error and whether
there are standards controlling its operation; and
(4) whether the theory or technique enjoys general acceptance within a relevant
scientific community.
Hickerson v. Yamaha Motor Corp., 882 F.3d 476, 480–81 (4th Cir. 2018) (quoting Cooper v.
Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing Daubert, 509 U.S. at 592–94)).
District courts must be mindful of “two guiding, sometimes competing, principles” when
considering whether to allow expert testimony. Westberry v. Gislaved Gummi AB, 178 F.3d 257,
261 (4th Cir. 1999). First, “Rule 702 was intended to liberalize the introduction of relevant
expert evidence.” Id. However, courts also must be cognizant that “[b]ecause expert witnesses
have the potential to be both powerful and quite misleading,” testimony that “has a greater
potential to mislead than to enlighten should be excluded.” Id.
A district court’s gatekeeping role “is not intended to serve as a replacement for the
adversary system,” and therefore “the rejection of expert testimony is the exception rather than
the rule.” United States v. Smith, 919 F.3d 825, 835 (4th Cir. 2019) (quoting In re Lipitor
(Atorvastatin Calcium) Mktg., Sales Practices & Prod. Liab. Litig. (No. II), 892 F.3d 624, 631
(4th Cir. 2018)) (cleaned up); see also Fed. R. Evid. 702 advisory committee’s note (2000
amends.) (“A review of the caselaw after Daubert shows that the rejection of expert testimony is
the exception rather than the rule.”).

4

Case 3:16-cv-00016-NKM-JCH Document 220 Filed 08/23/22 Page 5 of 10 Pageid#: 1387

Issues & Reasoning
1. Whether Dr. Moore’s Testimony Conflicts with Fourth Circuit’s Decision
Plaintiffs argue that Dr. Moore’s proposed testimony “conflicts with the holding of this
Court and that of the Fourth Circuit in this case.” Dkt. 190 at 1. Plaintiffs assert that the Fourth
Circuit held that “if the chart of ‘other’ officers reflected only traffic summonses, which it did,
plaintiffs had established their ‘similarly situated’ required as a matter of law.” Id. Thus,
Plaintiffs contend that the Fourth Circuit had “rejected [Defendants’] claim that [P]laintiffs failed
to eliminate possible ‘enforcement factors’ that could have affected [P]laintiffs’ statistics as
speculative and lacking any factual basis in the record.” Id. at 1–2. Plaintiffs acknowledge that
the Fourth Circuit held that Defendants “would be permitted to adduce facts in support of those
enforcement arguments at trial,” but argue that Defendants lack such evidence. Id. at 2. Plaintiffs
primarily challenge the following aspect of Dr. Moore’s anticipated testimony:
13.
Plaintiffs at several points compare Mr. Holmes’ citation rates for %Black
and %White to population percentages. The results are statements of the form “the
probability someone is black and is cited is higher than the probability someone is
drawn from the relevant population, while the opposite is true for whites.”
14.
Comparisons of this form are flawed as evidence of discriminatory
conduct (intent or impact). They assume, first and foremost, that rates of criminal
behavior are proportional to population averages, which they need not be. They fail
to recognize the probability someone is black, given that they are cited, has the
causal statement backwards. The correct statement examines the probability
someone is cited, given that they are black, and compares it to the same conditional
probability for whites. These latter two probabilities are not the same thing as the
first. Because the statements have the test backwards, and because there might be
competing determinants of citation rates, the analysis must be redesigned so that
the control group is ‘observationally equivalent’” ….
Dkt. 190-1 at 3–4 (¶¶ 13–14) (emphases added); see also Dkt. 190 at 2 (Pls’ brief, challenging
emphasized part of anticipated testimony).

5

Case 3:16-cv-00016-NKM-JCH Document 220 Filed 08/23/22 Page 6 of 10 Pageid#: 1388

Plaintiffs argue that such testimony would constitute “a direct refutation of the holding of
this Court that the statistical comparisons introduced by plaintiffs (along with their testimony)
were admissible to prove discriminatory intent … and the holding of the Fourth Circuit that those
same statistics were also effective evidence of discriminatory effect.” Dkt. 190 at 2. Therefore,
Plaintiffs conclude that such testimony should be excluded because “[a]n expert cannot dispute a
legal ruling of a court ….” Id. 3
To be sure, Dr. Moore’s testimony may not appropriately contradict the underlying legal
principles articulated by the Fourth Circuit (and this Court) that govern Plaintiffs’ claims—which
would not be testimony helpful to a jury. See Fed. R. Evid. 702(a) (an expert may testify if his
“specialized knowledge will help the trier of fact to understand the evidence or to determine a
fact in issue”); Fed. R. Evid. 702 advisory committee’s note (2000 amends.) (explaining that the
Rule 702 amendment “affirms the trial court’s role as gatekeeper and provides some general
standards that the trial court must use to assess the reliability and helpfulness of proffered expert
testimony”). But it is not clear that Dr. Moore’s challenged testimony is such a “refutation” of
the Fourth Circuit’s holding, as Plaintiffs posit. The Fourth Circuit held that this Court’s prior
decision had “improperly defined ‘distinguishable legitimate enforcement factors,’” which

3

The Court can quickly dispense with Defendants’ first counterargument: that the Fourth
Circuit’s holding in Johnson v. Holmes, 782 F. App’x 269 (4th Cir. 2019), “does not preclude
Dr. Moore’s opinions,” because the decision was unpublished and thus “not binding precedent in
the cases of Polk, Cook , Grady, and Harris against Holmes.” Dkt. 207 at 3. Defendants raised
this argument in a motion for summary judgment, which this Court denied. See Dkt. 213. So too
here. Although the Fourth Circuit’s opinion was unpublished, this Court will follow that decision
in these cases, which were “all stayed pending the outcome of Johnson v. Holmes as lead case
and [ ] since have been consolidated therewith.” Id. at 2. This Court also considers it especially
appropriate to follow the Fourth Circuit decision in all these cases, in view of the near identity of
issues presented, and the fact that they will require consideration of the same statistical evidence
about the same defendant (Holmes) as was at issue in that decision. Id.

6

Case 3:16-cv-00016-NKM-JCH Document 220 Filed 08/23/22 Page 7 of 10 Pageid#: 1389

should simply mean those enforcement factors that were “identifiable or discernable from the
statistics themselves or other evidence in the record.” Johnson, 782 F. App’x at 280. The Fourth
Circuit considered that “any possible differentiating feature” in statistics, “even if not supported
by the evidence,” would not qualify as a “legitimate enforcement factor.” Id. And the Fourth
Circuit further held that Plaintiffs’ statistics should not have been excluded as a matter of law, on
the then-existing record, based on Defendants’ “entirely speculative proposed factors,” which
“do not constitute ‘distinguishable legitimate enforcement factors,’” and which “cannot justify
excluding [Plaintiffs’] statistical evidence from proving discriminatory effect.” Id. However, the
Fourth Circuit also explained that “Holmes may raise his proposed enforcement factors, if true,
before the jury to attack [Plaintiffs’] statistical evidence.” Id. at 281. In other words, Plaintiffs’
statistical proof need not be “completely unassailable factually and as a matter of law to even
submit it to a jury.” Id.
Accordingly, Defendants are entitled to try to put forward “proposed enforcement factors,
if true, before a jury to attack [Plaintiffs’] statistical evidence at trial.” Id. In that light, there is
little indication that Dr. Moore would attempt to go beyond testifying in his expert opinion about
what Plaintiffs’ statistics show or do not show, or whether any enforcement factors identifiable
from the statistics themselves or in other record evidence would undermine either the utility or
the persuasiveness of Plaintiffs’ statistical evidence. There is no indication Dr. Moore would
attempt to testify, for example, that statistics cannot be used to prove discriminatory effect, but
see Johnson, 782 F. App’x at 277 (“[t]he law has repeatedly recognized that statistics can be
used to prove discriminatory effect”); or that statistical evidence is insufficient as a matter of law
if Defendants can point to “any possible differentiating feature” in the statistics, “even if not
supported by the evidence,” id. at 280 (interpreting “distinguishable legitimate enforcement

7

Case 3:16-cv-00016-NKM-JCH Document 220 Filed 08/23/22 Page 8 of 10 Pageid#: 1390

factors” to mean “an enforcement factor that was identifiable or discernable from the statistics
themselves or other evidence in the record”). And, as explained in the Court’s opinion on the
matter also issued this day, Plaintiffs’ expert would be able to offer contrary testimony about
what in her view the statistics do show—that Holmes gave a statistically higher number of
citations to Black drivers, and that the likelihood of that occurring solely by chance was very
small. And Plaintiffs will be able to challenge Dr. Moore’s testimony during cross. If Dr. Moore
should attempt to testify in a manner that conflicts with any governing rule of law stated by the
Fourth Circuit or this Court, Plaintiff may object at that point.
2. Whether Dr. Moore’s Opinion is Supported by Record Evidence
Plaintiffs also argue that Dr. Moore’s opinions should be excluded on the basis that they
are not supported by record evidence. See Dkt. 190 at 2–4. Notably, Plaintiffs challenge Dr.
Moore’s anticipated testimony that Plaintiffs’ statistics have failed to rule out other, “multiple
potential explanations for observed differences,” between the rates of citations Holmes’ gave
Black drivers and others in the Department. Id. at 2–3 (Plaintiffs’ emphasis). Plaintiffs also argue
that Dr. Moore’s decision to exclude from his calculations those officers who worked fewer than
199 hours in Sectors 1 and 2 was a decision that informed his opinion that was unsupported by
any record evidence. Id. at 2 (arguing that “Dr. Moore’s speculation is just that, speculation.”).
Similarly, Plaintiffs argue that Dr. Moore’s opinion that only those officers who work in the
evening should “should be included in the calculations” was also speculative and only based on
information from Lt. Miller. Id. at 4.
The Court considers Plaintiffs’ argument (which effectively challenges the foundation of
Defendants’ expert’s conclusions) to be, in this case, most effectively addressed at trial after
affording Defendants the opportunity to lay the foundation for any of these conclusions about

8

Case 3:16-cv-00016-NKM-JCH Document 220 Filed 08/23/22 Page 9 of 10 Pageid#: 1391

which their expert will testify. Again, Defendants are entitled to try to put forward “proposed
enforcement factors, if true, before a jury to attack [Plaintiffs’] statistical evidence at trial.”
Johnson, 782 F. App’x at 281. That could be done by introduction of record evidence and expert
evidence. Of course, the Court must ensure that an expert’s testimony rests on a reliable
foundation. See Sardis v. Overhead Door Corp., 10 F.4th 268, 281 (4th Cir. 2021) (Rule 702
“imposes a special gatekeeping obligation on the trial judge to ensure that an expert’s testimony
both rests on a reliable foundation and is relevant to the task at hand” (cleaned up, citation
omitted)). “An expert may rely on inadmissible evidence, including hearsay.” United States v.
Smith, 919 F.3d 825, 838 n.9 (4th Cir. 2019).
Applying these principles, and cognizant that “the rejection of expert testimony is the
exception rather than the rule,” In re Lipitor, 892 F.3d at 6313, the Court concludes that the
appropriate course is not for the Court to exclude Defendants’ expert’s opinion because Plaintiffs
argue that Dr. Moore may testify in a manner that conflicts with governing law, or may testify on
an issue without proper foundation. Rather, the Court will afford Defendants the opportunity to
introduce record evidence and to lay the foundation for their expert opinions. And if, prior to
introduction of Dr. Moore’s expert’s opinions, Plaintiffs consider that no such foundation has
been laid for the expert to offer such opinion, Plaintiffs may object at that time. So too may
Plaintiffs raise any objection to any opinion stated that they believe is contrary to governing law.
And, of course, Plaintiffs’ counsel will be afforded the regular means of challenging such expert
testimony, as by cross-examination and the ability to present contrary evidence. See Daubert,
509 U.S. at 596 (citing the “traditional and appropriate means” of challenging expert testimony,
including by “[v]igorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof”).

9

Case 3:16-cv-00016-NKM-JCH Document 220 Filed 08/23/22 Page 10 of 10 Pageid#: 1392

Conclusion
Accordingly, Plaintiffs’ motion to exclude Defendants’ expert Dr. Moore’s testimony
hereby is DENIED, without prejudice to Plaintiffs’ ability to raise any objection as to improper
testimony at trial. Dkt. 189.
It is so ORDERED.
The Clerk of Court is directed to send a certified copy of this Memorandum Opinion and
Order to all counsel of record.
Entered this _____
23rd day of August, 2022.

10