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Scheffler v. Lee

United States District Court, W.D. Kentucky, Louisville

July 9, 2019

Troy K. SCHEFFLER PLAINTIFF
v.
Alex LEE DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          CHARLES R. SIMPSON III, SENIOR JUDGE

         In the Memorandum of Pretrial Conference and Order, the Court ordered that pretrial motions in limine be filed by May 16, 2019. DN 122. The parties, while participating in settlement agreements, extended that deadline by agreed order to June 28, 2019. Pending motions resolved in this Memorandum Opinion and Order include:

Defendant's Motion in Limine to Exclude Testimony of Richard Rosenthal (DN 125)
Defendant's Motion in Limine (DN 126)
Plaintiff's Motion in Limine to Exclude Post-Arrest Evidence and Evidence of Plaintiff's Status as a Party to Unrelated Civil and Criminal Cases (DN 128)
Motion to Withdraw as Attorney (DN 134)

         I.Defendant's Motion in Limine to Exclude Testimony of Richard Rosenthal (DN 125)

         The admissibility of expert witness testimony is governed by Federal Rules of Evidence 104(a), 701, 702, and 704, applied under the rubric established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 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: (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. Therefore, the expert's opinion must be both relevant and reliable. Daubert, 509 U.S. at 589. To be relevant, there must be a “valid . . . connection to the pertinent inquiry as a precondition to admissibility.” Id. at 592. In other words, there must be a “fit” between the expert's opinion and the case at bar. Id. at 591. An opinion is reliable when “an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice in the relevant field.” Kumho Tire, 526 U.S. at 152. The proponent of the testimony must establish admissibility by a preponderance of the evidence. Daubert, 509 U.S. at 592 n.10.

         In assessing reliability, Daubert offered four factors: testing, peer review and publication, potential rate of error, and general acceptance in the relevant community. Id. at 593-94. These factors are not exhaustive and may have no pertinence in certain cases. Nelson v. Tennessee, 243 F.3d 244, 251 (6th Cir. 2001) (citing Kumho Tire, 526 U.S. at 141). Rule 702 offers an additional five factors for the Court to consider:

(1) Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying;
(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
(3) Whether the expert has adequately accounted for alternative explanations;
(4) Whether the expert is being careful as he would be in his regular professional work outside his paid litigation consulting; and
(5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Fed. R. Evid. 702 advisory committee's note to 2000 amendment (citations omitted).

         Here, Rosenthal is offered “as an expert on police programs, practices, policites, procedures and actions” in this case. Broadly, his opinions fall into three camps: impermissible legal conclusions, testimony regarding the beliefs of others, and unhelpful factual testimony. On review, the Court is convinced that none of those opinions are admissible and will grant the motion to exclude his testimony in its entirety.

         A. Impermissible Legal Conclusions

         The Sixth Circuit has made clear that experts cannot offer testimony on legal conclusions. Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985). While an opinion is not objectionable just because it embraces an ultimate issue, “the issue embraced must be a factual one.” Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994) (citing Fed.R.Evid. 704(a)). Exclusion is proper when an opinion “tracks almost verbatim the language of the applicable statute” or utilizes a term that “has a specialized meaning in the law and in lay use the term has a distinctly less precise meaning.” Torres, 758 F.2d at 151 (citations omitted). See Id. (proper exclusion of expert opinion that plaintiff was “discriminated against because of her national origin”); Berry, 25 F.3d at 1353 (proper exclusion of expert opinion that defendants were “deliberately indifferent”); Woods v. Lecureux, 110 F.3d 1215, 1220 (6th Cir. 1997) (same); Stoler v. Penn Cent. Transp. Co., 583 F.2d 896, 898-99 (6th Cir. 1978) (proper exclusion of expert opinion that a railroad crossing was “extra hazardous, ” a legal term of art under governing law); DeMerrell v. City of Cheboygan, No. 05-2325, 2006 WL 3090133, at *7-8 (6th Cir. 2006) (proper exclusion of expert opinion that an officer-involved shooting was “objectively unreasonable”).

         Rosenthal offers several legal conclusions in his report which must be excluded:

Mr. Scheffler was neither impaired by alcohol sufficiently to warrant police intervention nor was he acting in a disorderly manner as defined by the law.
The video showed Mr. Scheffler's action [sic] were certainly not “fighting or in violent, tumultuous, or threatening behavior” or even behaving in a ...

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