Weigle v. Pifer et al

Filing 39

MEMORANDUM OPINION AND ORDER granting in part and denying in part 22 MOTION to Exclude Opinions of Plaintiff's Expert William T. Gaut Ph.D. and in the Alternative MOTION for Extension of Time to Serve Rebuttal Expert Disclosure and Incorporat ed Memorandum of Law; the court reserves the right to rule on the admissibility of specific opinions when offered at trial, and to exclude or strike any testimony that contains inadmissible legal conclusions, or questions that invite such testimony; granting as to 22 MOTION for Extension of Time to Serve Rebuttal Expert Disclosure and Incorporated Memorandum of Law. Signed by Judge John T. Copenhaver, Jr. on 4/30/2015. (cc: counsel of record; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JAMES P. WEIGLE,
Plaintiff,
v.

Civil Action No. 2:14-cv-15087

R.L. PIFER, individually and
in his capacity as an officer
with the City of Vienna Police Department, and
BRIAN INGRAHAM, individually and
in his capacity as an officer
with the City of Vienna Police Department, and
CITY OF VIENNA POLICE DEPARTMENT, a political
subdivision of the State of West Virginia, and
the CITY OF VIENNA, a political
subdivision in the State of West Virginia
Defendants.
MEMORANDUM OPINION AND ORDER

Pending is the defendants’ motion to exclude the
expert opinion testimony of William T. Gaut, filed January 16,
2015.

For the following reasons the motion is granted in part,

denied in part. 1

Background

Plaintiff James P. Weigle (“Weigle”) is a West
Virginia citizen residing in Parkersburg, West Virginia.
1

The

The defendants also move, in the alternate, for additional time
to “serve rebuttal expert disclosure.” The partial denial of
the defendants’ motion to exclude creates good cause for this
extension, which is hereby granted.

City of Vienna is a municipality geographically adjacent to
Parkersburg.

The City of Vienna Police Department is an

instrumentality of the municipality.

Both the city and its

police department, as well as individual officers R.L. Pifer
(“Pifer”) and Brian Ingraham (“Ingraham”) are named defendants
in this action.

The following allegations are taken from the
complaint.

On the morning of April 21, 2012, sometime between 8

and 9 A.M., Weigle was driving southbound through Vienna on
Grand Central Avenue.

Pl. Compl. ¶ 12.

At that time, Pifer and

Ingraham were engaged in traffic control at the intersection of
Grand Central Avenue and 34th Street.

Id. ¶¶ 9-10.

The two

officers were blocking the flow of traffic on Grand Central
Avenue in order to allow the safe passage of pedestrians
involved in a street race proceeding down 34th Street.

Id.

Weigle, who was driving along Grand Central Avenue toward 34th
street, became stuck in the stalled traffic, and responded by
honking his horn.

Id. ¶ 13.

Subsequently, Pifer approached

Weigle and instructed him to pull off to the side of the road.
Id.
¶ 16.

Weigle did so, and then got out of his vehicle.

Id. ¶ 14,

Pifer asked Weigle to produce his driver’s license, and

Weigle complied with that request.

Id. ¶ 15.

Weigle then

“turned toward his vehicle to get his registration and insurance

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information,” a move he alleges was made in response to Pifer’s
request that he produce those documents.

Id.

In response to this movement and “without
provocation,” Pifer “slammed [Weigle]’s car door closed” and
“forcibly gripped [Weigle]’s left arm.

Id. ¶ 16.

Pifer

proceeded to “slam[] [Weigle] into and over the hood of a nearby
[police] cruiser” and “[threw] his right elbow into the back of
[Weigle]’s head and neck” thereby “forcing the full weight of
his six foot six, three-hundred fifty pound frame against
[Weigle].”

Id. ¶ 18.

At this point, Ingraham entered the scene

and “attempted to wrench [Weigle]’s right arm from under his
abdomen to pull over his head.”

Id. ¶ 19.

Weigle informed the two officers that he had
“previously had abdominal surgery” and that the position they
had put him in was causing him severe pain.

Id. ¶ 20.

responded by threatening Weigle with pepper spray.

Ingraham

Id. ¶ 21.

At this point, a taser was used on Weigle, causing him to void
his bowels.

Id.

Weigle was then taken to the Vienna Police

Department where he was charged with obstruction for refusing to
provide his driver’s license.

Id. ¶ 22.

He was released from

custody the same day, and was treated at a hospital emergency
room for “abdominal tenderness, cervical sprain, lower back
sprain, and a sprain to his right shoulder.”
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Id. ¶ 25.

Weigle

also suffered “damage to his esophagus” and “damage to his
bowels as a result of the crushing force applied by” the
officers.

Id. ¶ 26-27.

About two months after the incident, on June 9, 2012,
Pifer followed Weigle home in his police cruiser.

Id. ¶¶ 28-29.

Pifer was not conducting police business, did not have a
warrant, and Weigle was not issued a citation or charged with a
crime as a result of Pifer’s visit.

Id. ¶ 29.

Instead, Pifer

“verbally assaulted” Weigle in an attempt to “harass,
intimidate, and frighten” him.

Id. ¶¶ 28-29.

The content of

the verbal assault is not specified in the complaint.

Approximately two years later, on April 17, 2014,
Weigle was found not guilty of the criminal charges stemming
from the altercation on Grand Central Avenue.

Id. ¶ 30.

Weigle instituted this action on April 21, 2014.

His

complaint raises a number of state law claims, as well as
several constitutional claims made pursuant to 42 U.S.C § 1983.
Three of the counts of the complaint are of particular note for
purposes of the motion to exclude.

Counts Eight and Nine

outline the various Section 1983 claims raised against the
individual defendants.

The primary thrust of those two counts

is the general allegation that Pifer and Ingraham used
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“excessive force against [Weigle] during his arrest” in
violation of the Fourth and Fourteenth Amendments.
92, ¶ 93.

Id. ¶ 77, ¶

Count Eight also specifically alleges that neither

officer had a warrant or sufficient probable cause

for

initiating an arrest, and further that “[the officers] did not
have any legal cause or excuse to seize the person of [Weigle].”
Id. ¶ 82.

Both counts contain the allegation that Weigle

suffered physical, emotional, and economic injuries as a result
of the unlawful arrest, the officer’s use of excessive force
during that arrest, and “the malicious prosecution of baseless
criminal charges.”

Id. ¶¶ 87, 96.

Count Ten focuses on the

institutional defendants, and contains allegations that both the
city and the police department committed “constitutional
violations” when they “developed and maintained policies or
customs exhibiting deliberate indifference to the constitutional
rights of persons around the City of Vienna.”

Id. ¶ 100.

In order to support and develop his Section 1983
claims, Weigle has retained William T. Gaut (“Gaut”), an “expert
in the field of criminal justice, particularly police practice
and procedures and the use of excessive force.”
26(a)(2) Expert Disclosures at * 1. 2

See Pl. Rule

Gaut, who has a PhD in

criminal justice from Northcentral University, an online
2

Attached as “Exhibit A” to Def. Mot. to Exclude Expert Testimony
(ECF 22-1).
5

education facility, is a former homicide detective who spent
thirty years working for the Birmingham, Alabama Police
Department.

Id. at * 15-16.

He was a member of a committee

tasked by the governor of Alabama to “formulate the minimum
standards of training for all Alabama police officers”, and
“regularly serves” as an instructor at the Birmingham Police
Academy.

Id. at * 4, see also * 15-16.

He has been retained as

a consultant in nearly a hundred cases since 2009, and has on
numerous occasions testified as an expert witness “in the
discipline of police practices and procedures” when those cases
have proceeded to trial.

Id. at * 2, see also * 19-20.

In his expert report, Gaut identified four opinions he
has formed after a review of materials made available to him by
the plaintiff:

1. Acting under color of office, Pifer violated Weigle's
civil rights by falsely arresting him for a crime he
did not commit.
2. The force used by Pifer to arrest Weigle was
objectively unreasonable and excessive.

3. Pifer committed an unethical, and potentially
criminal, act of witness intimidation against Weigle,
in violation of generally accepted law enforcement
standards.
4. The City of Vienna, West Virginia, through the Vienna
Police Department, failed to properly train and
supervise Pifer.
6

Id. at * 6.

The report also outlines the bases on which Gaut

relied to reach these opinions.

Id. at * 7-13.

The defendants’ motion contends that Dr. Gaut should
be prohibited from offering his opinions on these four issues
because they consist of “nothing more than legal opinions that
invade the role of the Court and will not be helpful to the
jury.”

Def. Mot. to Exclude Expert Testimony at * 3.

Discussion

Federal Rule of Evidence 702 governs the admissibility
of expert testimony.

Fed. R. Evid. 702.

The rule 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:
(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.
Id.

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A witness qualified as an expert has wide latitude to
testify on matters within the scope of his expertise.

See

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592
(1993).

The primary limitation on the scope of an expert’s

testimony is helpfulness: testimony that is helpful to the jury
may be admissible, while testimony that is not helpful can be
excluded.

See Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.

1993)(“The boundary between [admissible and inadmissible expert
testimony] is defined by helpfulness.”).

The rules also

expressly provide that “[a]n opinion is not objectionable just
because it embraces an ultimate issue.”

Fed. R. Evid. 704(a).

On at least two occasions, our Court of Appeals has
held that “opinion testimony that states a legal standard or
draws a legal conclusion by applying law to the facts is
generally inadmissible.”

United States v. McIver, 470 F.3d 550,

562 (4th Cir. 2006), United States v. Barile, 286 F.3d 749, 760
(4th Cir. 2002).

McIver and Barile stand for the proposition

that Rules 702 and 704, working in conjunction, prohibit an
expert from offering testimony consisting of nothing more than
legal conclusions, because such testimony is not helpful to the
jury.

Barile, 286 F.3d at 760(quoting Woods v. Lecureux, 110

F.3d 1215, 1220 (6th Cir. 1997)(“testimony offering nothing more
than a legal conclusion — i.e., testimony that does little more

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than tell the jury what result to reach — is properly excluded
under the Rules.”), McIver, 470 F.3d 561-562 (distinguishing
between “questions of fact . . . which are the proper subject of
opinion testimony” and “opinion testimony that states a legal
standard or draws a legal conclusion.”).

As stated in Barile:

The role of the district court . . . is to distinguish
opinion testimony that embraces an ultimate issue of
fact from opinion testimony that states a legal
conclusion.
* * *
The best way to determine whether opinion testimony
contains legal conclusions, ‘is to determine whether the
terms used by the witness have a separate, distinct and
specialized meaning in the law different from that
present in the vernacular.’
Barile, 286 F.3d at 760 (quoting Torres v. County of Oakland,
758 F.2d 147, 151 (6th Cir. 1985)).

This distinction was addressed in the excessive
force case of United States v. Perkins, 470 F.3d 150 (4th Cir.
2006).

There the court found admissible the objected-to

testimony of the government’s “use of force” expert that he saw
no “legitimate” law enforcement reason for the defendant officer
to kick a prone suspect.

Id. at 154, 160.

The court concluded

that this assessment by the expert did not amount to an
inadmissible legal conclusion that the defendant’s actions were
“objectively unreasonable.”

Id.
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There is still other precedent, both from our Court of
Appeals and sister circuits, demonstrating that expert
testimony, properly tailored, is admissible in cases involving
the allegation that a police officer used excessive force.

See

United States v. Mohr, 318 F.3d 613 (4th Cir. 2003), Kopf, 993
F.2d 374, see also Cacciola v. McFall, 561 F. App'x 535, 538
(7th Cir. 2014), Jennings v. Jones, 499 F.3d 2 (1st Cir. 2007),
Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir.
2004), Samples v. City of Atlanta, 916 F.2d 1548 (11th Cir.
1990), Kladis v. Brezek, 823 F.2d 1014 (7th Cir. 1987).

Whether

or not such testimony is admissible in any particular case is
dependent upon its facts.

As our Court of Appeals explained in

Kopf:

[A] blanket rule that expert testimony is generally
admissible in excessive force cases would be just as
wrong as a blanket rule that it is not. The facts of
every case will determine whether expert testimony would
assist the jury.
Kopf, 993 F.2d 374, 378-79.

10

The defendants place particular reliance on the
unpublished per curiam decision in Clem v. Corbeau, 98 Fed.
Appx. 197, 2004 WL 906503 (4th Cir. 2004). 3

Clem is an excessive

force case involving use by a police officer of a firearm to
subdue a mentally ill defendant – who was charging the officer
in a narrow hallway – by shooting but not killing him.

The

court there noted that the use of excessive force is judged by a
standard of objective reasonableness.

The court then undertook

to apply the decision in Kopf, wherein it had held that the
trial court should have admitted an expert’s specialized
knowledge of an “obscure skill” consisting of the use of police
dogs and a slapjack.

In Clem the court affirmed exclusion of

the proffered expert testimony for the reason that the experts
did not offer expert testimony providing specialized knowledge

3

The court notes that Clem is a pre-January 1, 2007, decision.
The use to be made of such decisions is governed by Fourth Cir.
Loc. R. App. P. 32.1 which provides:
Citation of this Court’s unpublished dispositions
issued prior to January 1, 2007, in briefs and oral
arguments in this Court and in the district courts
within this Circuit is disfavored, except for the
purpose of establishing res judicata, estoppel, or
the law of the case.
If a party believes, nevertheless that an
unpublished disposition of this Court issued prior
to January 1, 2007, has precedential value in
relation to a material issue in a case and that
there is no published opinion that would serve as
well, such disposition may be cited if the
requirements of FRAP 32.1(b) are met.
11

on the obscure skill in that case, which was the use of the gun.
The court simply found that the expert opinion offered would not
have assisted the jury.

It added that the admission of that

testimony would have risked supplanting the jury’s role of
determining the facts.

Since then, our Court of Appeals, as

noted, had occasion to conclude, in Perkins, that a use of force
expert’s testimony that there was no “legitimate” law
enforcement reason for an officer to kick a prone suspect was,
under the facts of that case, admissible.

Kopf, however, may be of particular application in one
respect here.

Weigle’s complaint includes the allegation that a

specialized police tool – a taser – was employed by the
defendants during his arrest.

See Pl. Compl. ¶ 21.

Testimony

about the capabilities of a taser, the training police receive
with respect to such devices, and the general guidelines for
their use would likely be informative and helpful to the jury.

Gaut’s training, education and experience seem to have
provided him with the requisite specialized knowledge to be
qualified as an expert on police procedures and training
techniques, including those related to the use of force.

To the

extent he offers opinions that flow from that specialized
knowledge, and his testimony is within the parameters set forth
in this opinion – that is, his testimony does not consist solely
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of bald legal conclusions or do nothing more than apply legal
standards to the facts of the case – his testimony may very well
be considered helpful to the jury.

Even if the defendants satisfy the court that the
facts in this case are not conducive to expert testimony
concerning the reasonableness of the force, other portions of
Gaut’s testimony may still be helpful.

Expert testimony has

been held to be a critical component of a failure to train
claim.

See e.g., Russo v. City of Cincinnati, 953 F.2d 1036,

1047 (6th Cir. 1992)(“[I]n the context of a failure to train
claim, expert testimony may prove the sole avenue available to
plaintiffs to call into question the adequacy of a
municipality's training procedures. To disregard expert
testimony in such cases would, we believe, carry with it the
danger of effectively insulating a municipality from liability
for injuries resulting directly from its indifference to the
rights of citizens. Reliance on expert testimony is particularly
appropriate [in such situations].”), see also Kopf, 993 F.2d at
378 (Noting that “the inadmissibility of [an] expert's ultimate
opinion does not necessarily banish him from the stand
altogether, because his specialized knowledge may still assist
the trier of fact in other ways.”).

Applying the various precedents to the four opinions
13

set forth in Gaut’s expert report, the court concludes that
opinions two and four, which concern the reasonableness of the
force used by the defendants, and the Vienna police department’s
failure to train its officers, involve areas where Gaut’s
specialized knowledge is apt to be helpful to the jury, and
therefore his testimony, offered in a manner consistent with the
guidelines set forth in this opinion, may be admissible.

The

court also concludes that the first and third opinions,
consisting of Gaut’s determination that Weigle was falsely
arrested and that Pifer engaged in witness intimidation, appear
to be mere legal conclusions that usurp the court’s proper role
as expositor of the law and unhelpfully intrude upon the jury’s
role as finder of fact.

It is the court’s duty to explain to

the jurors the law concerning the legality of an arrest and its
contours related to witness intimidation.

The facts underlying

those claims are ordinarily straightforward and, in most cases,
well within the capacity of the jury to fully comprehend without
the aid of an expert witnesses’ specialized knowledge or
opinion.

Accordingly, the court holds that Gaut is permitted to

testify with respect to the second and fourth opinions in his
expert report, and, absent further justification for the
necessity of expert testimony, precluded from testifying about
the first and third opinions contained therein.

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Conclusion and Order

For the foregoing reasons, and as discussed above, the
defendants’ motion to exclude the expert opinion testimony of
William T. Gaut is granted in part and denied in part.

The

court reserves the right to rule on the admissibility of
specific opinions when offered at trial, and to exclude or
strike any testimony that contains inadmissible legal
conclusions, or questions that invite such testimony.

The court further concludes that, in light of this
ruling, the defendants have shown good cause for their motion in
the alternate seeking additional time to make the required
disclosures of its rebuttal expert.
granted.

Accordingly, that motion is

The court shall set forth the necessary modifications

to the schedule of the case in a forthcoming order.

The Clerk is directed to transmit copies of this order
to counsel of record and any unrepresented parties.
ENTER:

April 30, 2015

John T. Copenhaver, Jr.
United States District Judge

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