A district judge in Louisiana admitted the testimony of a law enforcement expert despite its alleged lack of documentary support and supporting methodology.
This lawsuit stems from injuries sustained by Anthony Efthemes, a Louisiana State Police officer, while assisting in an emergency pursuit of a vehicle on Interstate 10 in Calcasieu Parish, Louisiana. The Plaintiff, Efthemes was tasked with deploying “stop sticks” on the interstate to intercept the target car, which was being pursued by several other police vehicles with their lights and sirens activated.
Defendant Malik Aleem, driving an 18-wheeler, approached Efthemes’ point of interception around the same time as the target car. Aleem’s vehicle hit the stop sticks shortly after Efthemes deployed them, resulting in a violent tug on the device cord that caused injuries to Efthemes’ left hand.
Efthemes subsequently filed a lawsuit in state court against Aleem, his employer, and their insurer. The suit asserts that Aleem was liable for Efthemes’ injuries due to his negligent actions, including failing to yield to emergency vehicles, failing to slow down, and not attempting to avoid the hazard. Efthemes claims Aleem’s careless operation of his vehicle directly led to the injuries sustained during the incident.
Plaintiff has submitted a report from Kerry Najolia, who was retained to offer opinions on “policy, procedures, training, protocols, and the application of the tire-deflation devices” relating to this incident. Defendants filed a motion to exclude his testimony, arguing that his opinions did not satisfy the standards set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
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.
Discussion by the Court
Najolia issued two reports in this matter, in June 2021 and February 2024. In both documents he opined that Efthemes deployed the stop sticks “as he was trained and in accordance with LSP policy, procedures and protocols.”
He noted the privileges accorded to law enforcement in emergency pursuit. He also emphasized that Efthemes was trained not to wrap any part of the tire deflation device around any part of his body, and instead “to hold the handle of the device, take the slack out and place the device across the road or highway.”
Najolia concluded that the Troopers and other Officers were driving, acting and deploying the tire deflation devices with due regard for the safety of others and themselves.
He allowed, however, that the trier of fact would determine the reasonableness of each party’s actions and could conclude that “Malik’s actions may not have entirely or partially contributed to Trooper Efthemes’s injury” if it determined that Efthemes had not followed his training.
Defendants, however, found fault with certain statements in the report, asserting that they lacked documentary support and supporting methodology. They asserted that Najolia’s opinions were duplicative of those that will be elicited from two other Plaintiff witnesses.
The Court held that Najolia’s reports reflected that his opinions on Efthemes’s use of stop sticks were based on his years of law enforcement experience as well as his review of discovery and relevant training materials. The Court added that the challenged factual assertions in this case concerned the credibility of the testimony, not the admissibility.
Plaintiff may elect not to call the witnesses whose testimony overlaps with Najolia’s opinion or may elect not to elicit cumulative testimony. The Court cannot determine before trial whether such overlap creates a basis for exclusion.
Held
The Court denied Defendants’ Daubert motion to exclude the testimony of Kerry Najolia.
Key Takeaways:
Najolia opined that Efthemes deployed the stop sticks “as he was trained and in accordance with LSP policy, procedures and protocols” after Efthemes sustained injuries while assisting in an emergency pursuit of a vehicle. The Court held that Najolia’s reports reflected that his opinions on Efthemes’s use of stop sticks were based on his years of law enforcement experience as well as his review of discovery and relevant training materials.
- Najolia’s application of law enforcement policies and procedures, through the lens of his experience, to the facts of this incident is within the realm of Rule 702 and potentially helpful to the trier of fact.
- Challenged factual assertions typically concern the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.
Case Details:
| Case Caption: | Efthemes V. Amguard Insurance Co Et Al |
| Docket Number: | 2:19cv1409 |
| Court: | United States District Court, Louisiana Western |
| Order Date: | May 02, 2024 |
Leave a Reply