Law Enforcement Expert Witness' Testimony on the Police Officers' Conduct Admitted

Law Enforcement Expert Witness’ Testimony on the Police Officers’ Conduct Admitted

A district judge in Louisiana admitted a law enforcement expert’s testimony summarizing police procedures.

Cortez alleged that on November 21, 2019, his wife had called 911 and requested that police be dispatched so she could leave their residence without incident because Cortez was in an agitated mood. Cortez averred that an altercation had ensued after Deputies Reese and Custard arrived on the scene.

Plaintiff brought this lawsuit to pursue claims of excessive force in violation of the Fourteenth Amendment; a cover up by Jefferson Parish Sheriff’s Office employees; and ongoing physical and psychological injuries.

Defendants Deputy Custard, Deputy Reese, and Sheriff Lopinto asserted that the claims alleged were frivolous, groundless, and unreasonable.

Defendants offered the testimony of Kerry Najolia to summarize police procedures and to analyze whether the Deputies met those standards. Plaintiff filed a motion to exclude eight of Najolia’s opinions contending they were inadmissible as per Daubert and Rule 702.

Law Enforcement Expert Witness

Kerry Najolia has been qualified as, and has testified as, an expert on police practice, procedure, training, police officer survival/defensive tactics, police use of force, and police canines in numerous Louisiana state and federal courts. He has worked in various divisions in law enforcement, which includes patrol, investigations, Training and SWAT.

Want to know more about the challenges Kerry Najolia has faced? Get the full details with our Challenge Study report. 

Discussion by the Court

The eight opinions in question found that the deputies’ actions were “authorized,” “consistent with their training” and “consistent with departmental policy, procedures, and protocols” at various stages of their interaction with Plaintiff. In support of his motion, Plaintiff argued that: (1) Najolia would need to repeat inadmissible hearsay at trial to explain these opinions (2) Najolia’s testimony is irrelevant, and (3) Najolia’s methodology is unreliable.

Najolia Will Not Need to Repeat Inadmissible Hearsay at Trial

Plaintiff argued that Najolia’s opinions about the Deputies’ use of force must be excluded because Najolia will necessarily need to repeat hearsay testimony at trial to express these opinions. He added that Najolia largely relies on an Offense Report written by Deputy Reese, who has not been deposed, for his understanding of the foundational facts of the case.

Plaintiff did not dispute that Najolia may express opinions in his expert report that are based, in part, on facts contained in an inadmissible report such as the Offense Report. Rather, he contended that Najolia will need to describe Deputy Reese’s hearsay statements at trial. Since, Defendants’ witness list noted that Deputy Reese will testify at trial, the Court held that Najolia may properly refer to her testimony after Deputy Reese testifies.

Najolia’s Opinions Do Not Constitute Improper Legal Conclusions

Plaintiff contended that Najoila will improperly invade the duty of the factfinder by offering conclusions on legal issues.

The eight opinions Plaintiff sought to exclude were tied to the police policies and procedures at issue. The opinions described various actions of the deputies as “consistent with their training” “appropriate” and “in accordance with the deputies training.” This language showed that Najolia intended to opine on whether the Deputies “comported with applicable policies and procedures.” The Court held that such testimony was permissible but Najolia will not be allowed to opine on the ultimate issues of whether the officer’s actions were generally “reasonable” under the applicable legal standard.

Plaintiff’s Concerns About Najolia’s Assumption of Facts were Properly Addressed on Cross-Examination, Not By Exclusion of His Testimony

Plaintiff argued that Najolia’s opinions should be excluded because his methodology was unreliable. Najolia, Plaintiff contended, improperly relied on the Defendants’ version of the facts while ignoring other record evidence. The Court held that this this argument was unavailing since Plaintiff’s concerns that Najolia’s opinions were based on incorrect and one-sided facts could be addressed at trial on cross-examination. These questions relate to the “bases” of Najolia’s opinions, and thus go to the “weight to be assigned that opinion rather than its admissibility.”


The Court denied Plaintiff’s motion to exclude and held that Najolia may testify as to whether the Defendant Deputies acted in accordance with applicable policing standards, protocols, and trainings.

Key Takeaway:

Under Federal Rule of Evidence 704, an expert’s “opinion is not objectionable just because it embraces an ultimate issue.” Louisiana District Court has previously permitted Najolia to opine on whether police officers’ conduct was in accordance with specific policing standards. The eight opinions Plaintiff sought to exclude were tied to the police policies and procedures at issue and hence were permissible. Despite Plaintiff’s concerns that Najolia’s opinions are based on incorrect and one-sided facts, the Court held that Najolia’s testimony will be properly offered to summarize police procedures and
to analyze whether the Deputies met those standards.

Case Details:

Case Caption:Cortez V. Custard Et Al
Docket Number:2:20cv3110
Court Name:United States District Court, Louisiana Eastern
Order Date:June 10, 2024


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