Estate of Ashley DiPiazza v. City of Madison et al

Filing 199

ORDER granting in part and denying in part 87 Plaintiff's Motion to Strike Defendants' Expert Charles Huth. Signed by District Judge William M. Conley on 5/5/2017. (mfh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
THE ESTATE OF ASHLEY DIPIAZZA,
Plaintiff,

OPINION AND ORDER

v.
THE CITY OF MADISON and JUSTIN BAILEY,
GARY PIHLAJA, and CARY LEEREK,
in their individual capacities,

16-cv-60-wmc

Defendants.
This case is set for a jury trial beginning on May 15, 2017. In advance of the final
pretrial conference scheduled for May 9, the court addresses plaintiff’s Daubert motion to
strike defendants’ “police practices” expert Charles Huth (dkt. #87) under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). For the reasons set forth below,
the court will grant that motion in part and deny it in part.
I.

Daubert Review
“Determining the true facts of a case often requires ‘the application of some

scientific, technical, or other specialized knowledge.’” Lapsley v. Xtek, Inc., 689 F.3d 802,
808 (7th Cir. 2012) (quoting Fed. R. Evid. 702 advisory committee’s note to 1972
proposed rules). Federal Rule of Evidence 702 provides:
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.
Fed. R. Evid. 702. The court’s role under Rule 702 is to act as a “gatekeeper,” ensuring
that proffered expert testimony satisfies these requirements. Kumho Tire Co. v. Carmichael,
526 U.S. 137, 147 (1999).
In exercising this gatekeeping role, the Seventh Circuit has condensed Rule 702 into
a three-part analysis: the court must determine whether the purported expert witness is
qualified; whether his or her methodology is reliable; and whether the testimony will assist
the jury in deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th
Cir. 2010). Moreover, the proponent of expert testimony bears the burden of establishing
it meets this three-prong test. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir.
2009).
More specifically, the court first “must look at each of the conclusions he draws
individually to see if he has the adequate education, skill, and training to reach them.” Hall
v. Flannery, 840 F.3d 922, 926 (7th Cir. 2016) (quoting Gayton v. McCoy, 593 F.3d 610,
617 (7th Cir. 2010)). Extensive academic training, practical expertise, or professional or
other experience are all proper bases from which a witness may draw specialized knowledge
sufficient to qualify as an expert in a particular area. Smith v. Ford Motor Co., 215 F.3d
713, 718 (7th Cir. 2000). As to the second part of the gatekeeping analysis, “the test for
reliability is necessarily flexible. Although Daubert identifies factors the court may consider
when determining whether an expert’s testimony is reliable—whether the expert's
technique has been tested, subjected to peer review and publication, analyzed for known
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or potential error rate, or is generally accepted—the ‘list of specific factors neither
necessarily nor exclusively applies to all experts or in every case.’” Estate of Robinson ex rel.
Irwin v. City of Madison, No. 15-CV-502-JDP, 2017 WL 564682, at *8 (W.D. Wis. Feb.
13, 2017) (quoting Kumho Tire, 526 U.S. at 141). Finally, “expert evidence is relevant if
it helps the jury understand a matter beyond the knowledge and experience of a layperson.”
Id. (citing Daubert, 509 U.S. at 591-92).
In performing its review, the court may not undertake to resolve disputed facts or
make credibility determinations. The “Daubert inquiry is not designed to have the district
judge take the place of the jury to decide ultimate issues of credibility and
accuracy.” Lapsley, 689 F.3d at 805. At the same time, “[i]t is the role of the judge, not
an expert witness, to instruct the jury on the applicable principles of law, and it is the role
of the jury to apply those principles of law to the facts in evidence. As a general rule,
accordingly, an expert may not offer legal opinions.” Jimenez v. City of Chicago, 732 F.3d
710, 721 (7th Cir. 2013).
II.

Policing Expert Charles Huth
Here, plaintiff challenges the report and opinions of defendants’ police practices

expert, Charles “Chip” Huth, and moves to strike his testimony in its entirety, or in the
alternative, to exclude certain opinions. Charles Huth is a captain in the Kansas City
(Missouri) Police Department, where he now serves as staff inspector.

He has

approximately 25 years of experience in policing, including various patrol, tactical response,
leadership, operational, and command roles. He reports having “planned, coordinated and
executed over 2500 high-risk tactical operations” during his career. In addition, Huth has
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an associate’s degree in police science, as well as several other educational and professional
certifications, and has served as a firearms/defensive tactics instructor and provided other
relevant police training. (Dkt. #37-1, at 1-3.) He also appears to be a recognized author
on these subjects.
In this case, Huth offers six opinions in his report:
(1) Officers Bailey and Pihlaja’s use of deadly force was consistent with
contemporary police training, tactics and customs given the totality of
the circumstances.
***
(2) Officer Carey Leerek’s actions during her interaction with Ms. DiPiazza
were consistent with contemporary police training, tactics, and customs
given the totality of the circumstances.
***
(3) Officers Bail[e]y, Pihlaja and Leerek reasonably interpreted Ms.
[Di]Piazza’s actions as an imminent threat.
***
(4) When the use of deadly force is objectively reasonable given the totality
of the circumstances confronting a law enforcement officer(s), less-lethal
law enforcement tools, to include less-lethal projectiles, are not
considered alternatives to deadly force. Employing a “bean bag” shotgun
to respond to the threat of deadly force by Ms. DiPiazza would have been
disproportionate and unreasonable.
***
(5) Officers Bailey, Pihlaja and Leerek had to rely on the observable actions
of Ms. DiPiazza, not her stated intent, to determine what type of threat
she posed to their safety.
***
(6) The number of rounds fired by Officers Bailey and Pihlaja was reasonable
given the dynamics of the situation.
(Dkt. #37, at 2-9.) In Huth’s report, he describes the bases for each of these
opinions and also includes some sub-opinions and supporting observations.
While purporting not to question Captain Huth’s qualifications as a policing expert
generally, plaintiff nevertheless contends that Huth’s testimony is so unreliable,
speculative, baseless, and biased throughout that it should be excluded entirely.
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In

particular, plaintiff contends that Huth’s “obvious bias in favor of the officers and against
the decedent” -- because he himself is a police officer who testifies as a police practices
expert on behalf of other officers and their departments -- is enough to disqualify him as
an expert. (Dkt. #87, at 24-25.) While certainly a topic for robust cross examination, the
court disagrees that this alone is sufficient to disqualify Huth’s testimony all together, at
least absent evidence of blunt and open bias. See Stachniak v. Hayes, 989 F.2d 914, 925
(7th Cir. 1993) (district court was correct to disqualify expert who admitted he would
“probably” weigh his opinion in favor of the police officers as against suspects or arrestees).
Indeed, the mere fact that an expert works for an employer similar to one of the defendants,
or works in the same field as other defendants, would disqualify many experts who are in
a unique, if not the best, position to assist a lay jury in understanding unfamiliar scientific,
technical or specialized knowledge.
The court also agrees with defendants that Huth’s opinions on police practices are,
at least as a general matter, based satisfactorily and reliably on his extensive professional
experience in the field.

See Kumho Tire, 526 U.S. at 148 (“Experts of all kinds tie

observations to conclusions through the use of what Judge Learned Hand called ‘general
truths derived from ... specialized experience.’”); Estate of Robinson, 2017 WL 564682, at
*10 (“An expert in professional practices is not a scientific expert that applies rigorously
scientific methods. Such experts describe professional standards and identify departures
from those standards.”) (citing W. By & Through Norris v. Waymire, 114 F.3d 646, 652
(7th Cir. 1997)). To the extent Huth has familiarized himself with the facts of this case,
analyzed the officers’ actions, compared those actions to standard police practices as
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informed by his experience, and rendered opinions as to how they measure up, his
methodology is sufficiently reliable and his expert testimony is admissible.
In particular, Huth’s opinions (1) and (2) meet this standard as a whole. Although
the bases he provides in his report could be more helpful, and the explanations themselves
contain some inadmissible opinions and observations, which the court addresses below,
Huth’s opinions that the actions of each of the three, individual officers named as
defendants in this case were “consistent with contemporary police training, tactics, and
customs” on the night of May 18, 2014, are sufficiently well-founded and reliable to be
admissible.

(Dkt. #37, at 2-5.)

While methodically criticizing internal and logical

inconsistencies in Huth’s opinions on police practices (dkt. #87, at 10-18, 30-42), plaintiff
will again be free to highlight these issues on cross-examination to undermine Huth’s
testimony before the jury, but this is also not a sufficient basis for the court to exclude the
testimony under Daubert.
The court is concerned that Captain Huth is relatively inexperienced as an expert
witness, and he seems to have trouble understanding that his role is not to resolve factual
disputes, but rather to express expert opinions based on a set of undisputed or assumed
facts.

Equally concerning is his arguable testimony that his training of officers is

inconsistent with that of the Madison Police Department, or worse still, settled
constitutional law. However, the court agrees that most of these exchanges are due to the
linguistic gymnastics, as well as argumentative and defensive tone, in his deposition, for
which plaintiff’s counsel and the witness were equally responsible. The court is confident
that defense counsel will work with Captain Huth to keep him on the path of his written
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report and the subjects the court allows to go forward in this opinion and order, even if he
feel baited to go further by the questions of plaintiff’s counsel. At the same time, the court
expects plaintiff’s counsel to adhere to a far stricter standard of relevance at the trial itself.
Even as to opinion (1), there are sub-opinions that appear to extend beyond the
scope of Captain Huth’s expertise, particularly in the second and third paragraphs on page
4 of his report, in which he purports to opine on what officers Bailey and Pihlaja were
personally perceiving, feeling and choosing to act upon. That is not his role, but the role
of the jury, and to the extent he purports to be offering those opinions, they are excluded
as invading the role of the jury. The difference is between opining what a properly trained
officer might do under an assumed set of facts, like those here, and the legality of what
these individual officers actually did.1
Plaintiff’s Daubert challenge to many of Huth’s subsequent opinions and subopinions have equal substance. In particular, plaintiff contends that some of these opinions
impermissibly wade into areas outside Huth’s base of knowledge and expertise, and others
impermissibly opine on credibility issues and legal standards. These contentions require
closer analysis.
An expert’s opinion “is not objectionable just because it embraces an ultimate issue.”
Fed. R. Civ. P. 704(a). Indeed, such testimony may be especially relevant and helpful to a

Captain Hurth also makes a number of assumptions as to the facts known to these two defendants
at the time they acted. While he can certainly assume facts upon which his opinions will depend,
provided there is a factual basis for the jury to ultimately reach them (e.g., that Ms. DiPiazza
“suddenly” advanced toward them), he cannot assume knowledge by the defendants that the
evidence would not allow a reasonable juror to reach (e.g., comments made to the dispatcher that
were not relayed to officers on the scene).
1

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fact-finder. Jimenez, 732 F.3d at 721. Even so, “the expert’s role is ‘limited to describing
sound professional standards and identifying departures from them.’” Id. (quoting West v.
Waymire, 114 F.3d 646, 652 (7th Cir. 1997)). Of particular importance here, “the Seventh
Circuit has upheld the exclusion of expert testimony regarding the reasonableness of force
in excessive-force cases.” Thomas v. Landrum, No. 11 C 09275, 2014 WL 11370447, at *1
(N.D. Ill. Mar. 18, 2014) (citing Thompson v. City of Chicago, 472 F.3d 444, 458 (7th Cir.
2006)). See also Abdullahi v. City of Madison, 423 F.3d 763, 772 (7th Cir. 2005) (observing
that expert’s properly admitted testimony regarding whether officer’s tactics were
consistent with standard police practices may be deemed relevant to reasonableness inquiry
undertaken by the jury).
Huth’s opinion (3) appears to go beyond this limit. The ultimate legal inquiry in
this case -- whether the officers’ use of deadly force against Ms. DiPiazza was justified -turns entirely on whether the officers reasonably perceived an imminent or immediate
threat of death or great bodily harm to them or others. (See Op. & Order, dkt. # 91, at
15-18.) Huth’s opinion that the officers “reasonably interpreted Ms. [Di]Piazza’s actions
as an imminent threat,” (dkt. #37, at 6), provides a direct and conclusive answer to that
question, applying the relevant legal standard to the facts of the case in a manner that
again invades the province of the jury, especially when you read his underlying, muddled
justification for it, both in his report and deposition testimony.

Huth’s specialized

experience and expertise regarding police practices allow him to render an opinion that
could appropriately assist the jury in making that ultimate determination, as he does in
opinions (1) and (2) with respect to what a well-trained officer would perceive as an
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imminent or immediate danger, but it would be more likely to prejudice and mislead than
to be helpful for Huth to opine whether or not these individual defendants “reasonably
interpreted” Ms. DiPiazza’s actions as such. Accordingly, Huth may not opine that Ms.
DiPiazza in fact posed -- or that these officers reasonably interpreted her actions to pose - an imminent or immediate threat of death or great bodily harm. See Estate of Robinson,
2017 WL 564682, at *10, *15.
For avoidance of doubt, no expert witness will be allowed to offer any opinions
regarding whether Ms. DiPiazza or her actions posed an imminent threat or danger to the
lives or bodies of the defendants or others, or whether these officers reasonably perceived
or interpreted it as such. Nor may any expert witness opine about whether the threat or
danger posed by Ms. DiPiazza was “actual” or “immediate” (as opposed to merely
“potential”) or otherwise characterize its urgency.2 Similarly, no expert in this case will be
allowed to offer any such opinions that so directly express conclusions about these
particular officers’ actions being reasonable or unreasonable. To the extent any of Huth’s
opinions or sub-opinions -- or any other experts’ opinions or sub-opinions -- purport to do
that, they are excluded.
Consistent with these principles, Captain Huth may testify in opinion (4) that
under contemporary police training, tactics, and customs, less-lethal projectiles and tools
are not considered proportional or viable alternatives to deadly force when officers are
faced with a threat of deadly force, like a loaded gun. (Dkt. #37, at 7.) Similarly, Huth

The court is not interested in the parties’ debate over Huth’s use and definition of these words
and others that carry distinct and crucial legal meaning. No experts will be allowed to opine as to
the definition (legal or otherwise) of these words.
2

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may testify in opinion (5) about how officers are trained to assess a threat and determine
an armed subject’s intent based on the subject’s observable actions or words, and he may
opine further that the defendants conduct comported with standard police practices. Id.
at 8-9. With respect to both opinions, however, he shall not opine about whether Ms.
DiPiazza’s “actions would lead a reasonable officer to conclude she posed a danger to [them
or] others,” or whether the defendants “could reasonably believe” based on their
assessment of the threat of Ms. DiPiazza’s intent that she “posed an imminent deadly
threat to their safety.” Id.
Finally, while Huth may testify in opinion 6 as to the number of rounds fired by
Officers Bailey and Pihlaja being consistent with contemporary police practices and training
given the dynamics of the situation they faced, id. at 9-10, he must again refrain from opining
whether the defendants acted reasonably. Huth is also excluded from testifying about the
technical and medical effects such rounds have on a human body, as he has offered no
physiological credentials or other qualifications to opine on such matters.3

This leaves a few, “sub-areas” where plaintiff has raised legitimate objections to
Huth’s testimony. First, the court agrees with plaintiff that Huth’s opinion that “suicidal”
and “homicidal” tendencies are not functionally distinguishable -- because a person in crisis
can “rapidly vacillate” between a desire to self-harm and to harm others (dkt. #37, at 5-6)
-- is inadmissible. Huth has not laid a proper foundation or base of scientific knowledge
or expertise for such opinions to be reliable, so they are excluded. See Zenith Elecs. Corp. v.

Unless disclosed in his report, Captain Huth will also not be allowed to bolster his opinions with
so-called accepted “definitions,” “studies,” “empirical” data or training materials or practices.
3

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WH-TV Broad. Corp., 395 F.3d 416, 419 (7th Cir. 2005) (“A witness who invokes
‘my expertise’ rather than analytic strategies widely used by specialists is not an expert as
Rule 702 defines that term.”).
Second, the same reasoning applies to his opinions about “heuristics” or more
broadly as to how human beings tend to think and behave, as well as his opinions about
“auditory exclusion,” “selective attention,” or “selective blindness,” that may corroborate
the defendants’ testimony that they did not hear certain things at the time or do not
remember hearing them now. See Estate of Robinson, 2017 WL 564682, at *16 (excluding
opinion of police practices expert who “has no expertise in the memory and recall issues he
discusses; he only summarizes studies he has read”).
The court might consider allowing Captain Huth to testify as to an officer’s training
in what he describes as “heuristics,” but without using that term, which suggests a scientific
or pseudo-scientific underpinning that he is neither qualified to opine on, nor is likely to
be meaningful to a lay jury.4 However, even if the other opinions were proper -- and even
if the court were not persuaded by plaintiff’s objections to Huth’s testimony on these
matters at his deposition (see dkt. #87, at 42-46) -- the opinions would still be excluded
because they were not disclosed in Huth’s expert report.

Nor did defendants file a

supplemental report even after objections were raised at his deposition. To clarify, no
expert will be allowed to offer opinions, or the basis for those opinions, unless set forth in
his or her report, even if disclosed during the expert’s deposition. See Ciomber v. Coop. Plus,
Inc., 527 F.3d 635, 641-42 (7th Cir. 2008) (“[A] party that intends to rely upon an expert
witness’s testimony is required to furnish by a date set by the district court a report

If he wishes, Huth may use a more practical euphemisms, such as “rule of thumb” “educated
guess” or “intuitive judgment.”
4

containing, among other information, ‘a complete statement of all opinions’ the retained
expert will provide, ‘and the basis and reasons for them.’ . . . Rule 26(a)(2) does not allow
parties to cure deficient expert reports by supplementing them with later deposition
testimony.”) (quoting Fed. R. Civ. P. 26(a)(2)(B)(I) and (a)(2)(C)); Estate of Robinson, 2017
WL 564682, at *17).
Third, and finally, plaintiff’s objections to Huth’s testimony about Ms. DiPiazza’s
“decision” to come out of the bedroom and about statements or other information
regarding her expression of suicidal intent being “worthless” (dkt. #45-48), were also not
disclosed in Huth’s report, coming out instead at the time of his deposition. Moreover,
the substance of the latter (and seemingly more consequential) issue about Ms. DiPiazza’s
intent has already been excluded by the court’s ruling on Huth’s opinion (5) above. For
avoidance of all doubt: as with respect to legal opinions, no expert will be allowed to opine
directly on anyone’s credibility, including Ms. DiPiazza’s.
ORDER
IT IS ORDERED that plaintiff’s Daubert motion to strike defendants’ “police
practices” expert Charles Huth (dkt. #87) is GRANTED IN PART and DENIED IN PART
as set forth above.
Entered this 5th day of May, 2017.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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