United States District Court, E.D. Kentucky, Southern Division, Pikeville
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
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.
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.
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.
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.
Motion to strike Plaintiffs' marijuana odor
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. 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,
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:
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
(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)).
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