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Blevins v. Kirk

United States District Court, E.D. Kentucky, Southern Division, Pikeville

March 20, 2018

JOHN KIRK, individually and in his capacity as Martin County Sheriff, PAUL D. WITTEN, individually and in his capacity as Deputy, Agent, Servant of the Martin County Sheriff's Office, MARTIN COUNTY SHERIFF'S OFFICE, and MARTIN COUNTY, KENTUCKY, Defendants.



         This matter is before the Court on Defendants' motion to strike the expert testimony of Plaintiffs' expert (DE 46) and Defendants' motion for summary judgment (DE 47). Plaintiffs assert claims under 42 U.S.C. § 1983 and state claims for violation of Kentucky's civil rights statute, Ky. Rev. Stat. § 344.020, and for the tort of outrage. For the reasons discussed below, the Court grants the Defendants' motion to strike as to their expert's opinion on marijuana odor and distance and grants Defendants' motion for summary judgment as to all claims.

         I. Background

         On the evening of April 24, 2015, Martin County Sheriff John Kirk and his deputy Chris Todd were traveling down Rockhouse Road when, they claim, they smelled marijuana odor. At the time, they were approximately 160 feet from Mardy Mollett's residence. Deputy Todd was familiar with Mollett's residence based on a previously executed search in 2005 during which a marijuana grow operation was discovered. He called Paul Witten, the Chief Deputy of the Martin County Sheriff's Office, and asked him to prepare an affidavit for a warrant to search Mollett's property based on his statement that he smelled marijuana.

         Deputy Witten drafted the search warrant and it was signed by a Martin County District Judge. The warrant was executed that evening by Sherriff Kirk and several deputies, including Todd and Witten. Initially, only Mollett's ex-wife, Pamela Blevins, who was temporarily residing on the property, was present, but she called Mollett and he arrived during the search. The deputies discovered 147 marijuana plants growing in Mollet's residence. Mollett and Blevins were indicted on August 6, 2015 in Martin County District Court. Mollett and Blevins moved to suppress evidence obtained during the search and, largely based on the expert testimony of Dr. Warren James Woodford that marijuana odor could not be detected at 150 feet, the court granted the motion. The charges were ultimately dismissed.

         Plaintiffs have filed this action seeking damages under 42 U.S.C. § 1983 against Sheriff Kirk, Deputy Witten, Martin County, and the Martin County's Sheriff Office. They claim that Sheriff Kirk's claim that he smelled marijuana at Mollett's residence, upon which the search warrant was based, was false and intentionally misleading. They also allege violations of Kentucky's civil rights law, Ky Rev. Stat. § 344, that Defendants committed the tort of outrage, and that that Martin County and the Martin County Sheriff's Office are liable for negligent training, supervision, or monitoring of Sheriff Kirk and Deputy Witten.

         II. Discussion

         A. Motion to strike Plaintiffs' marijuana odor expert

         Plaintiffs have retained Dr. Warren James Woodford as an expert regarding marijuana odor. Dr. Woodford has a Ph.D in Chemistry from Emory University. Plaintiff disclosed Dr. Woodford in their Rule 26(a)(1) initial disclosure, providing an unsigned affidavit as to his opinions. (DE 46-1), In that affidavit, Woodford states that he is a forensic chemist specializing in detection of marijuana odors. He claims that he is intimately familiar with the science of drug odors and was granted a patent for inventing a way to reproduce the odor of cocaine for police and K-9 training. He intends to testify that it was impossible for Sherriff Kirk to have smelled marijuana as claimed in the affidavit because a human cannot detect the smell of marijuana over a distance of forty feet.[1] At Dr. Woodford's deposition on May 19, 2017, Plaintiffs provided a signed affidavit from Dr. Woodford containing additional opinions. That affidavit indicated that Dr. Woodford also intends to testify that Deputy Todd's belief that he smelled marijuana was attributable to the power of odor suggestion; that if the car windows were cracked or rolled down, air would flow out, not in; and that Sheriff Kirk and Deputy Todd lacked experience and training in recognition of marijuana odor. (DE 48, 76-78).

         1. Dr. Woodford's opinion on distance and marijuana odor The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. It 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. District Courts assume a gatekeeping rule to exclude irrelevant or unreliable expert testimony. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Rule 702 and the courts gatekeeping function applies to both scientific and non-scientific expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Under Daubert, the reliability requirement “entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Decker v. GE Healthcare Inc., 770 F.3d 378, 391 (internal quotation marks omitted) (quoting Champion v. Outlook Nashville, Inc., 380 F.3d 893, 907 (6th Cir. 2004)).

         In assessing whether expert testimony is reliable, the Court's focus is “on the soundness of the expert's methodology and not the correctness of his conclusions.” Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303 (6th Cir. 1997), abrogated on other grounds, G.E. v. Joiner,522 U.S. 136 (1997). The Supreme Court in Daubert provided a ...

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