Expert Witness Profiler

Category: Law Enforcement Expert Witness

  • Law Enforcement Expert Witness’ Conclusions Regarding Control Excluded

    Law Enforcement Expert Witness’ Conclusions Regarding Control Excluded

    In the early hours of September 24, 2021, Cedric Lofton was arrested for allegedly battering officers of the Wichita Police Department. WPD determined that, due to his arrest, Lofton needed to be taken into custody. Because Lofton was still a juvenile, he was transported to the Sedgwick County Juvenile Intake and Assessment Center (“JIAC”) for processing.

    When WPD left Lofton at JIAC to be processed, Lofton did not cooperate. Lofton displayed escalating noncompliance and made threatening comments. As Lofton continued to fight, kick, and resist the Defendants’ efforts to control him, they transferred Lofton to the prone position in hope of restraining him safely until he calmed down. Lofton continued resisting and fighting, never appearing to tire or give up and a call was made to WPD so that Lofton could be transported to a hospital. Eventually, they were able to handcuff Lofton, and he later stopped resisting and appeared to fall asleep. Defendants waited WPD to arrive to have them transport Lofton from JIAC to a hospital. After several minutes, Lofton stopped breathing. Conklin began performing CPR and EMS was called. Lofton was transported to a hospital and died a few days later.

    Defendants Jason Stepien, Brenton Newby, William Buckner, Karen Conklin, and Benito Mendoza (“the JIAC/JDF Defendants”) were sued for excessive force, deliberate indifference to a medical need, and failure to intervene. They were also sued for battery, negligence, and both the intentional and negligent infliction of emotional distress under Kansas law.

    Plaintiff retained Jerome Davis and Michael Lyman to provide testimony about nationally recognized definitions and standards, and that based on those measures, Lofton was controlled by Defendants and Defendants continued use of force was excessive and unreasonable.

    Law Enforcement Expert Witnesses

    Jerome Davis has investigated and reviewed numerous uses of force, while
    working in various supervisory ranks for New York City Department of Correction, and as Deputy Commissioner of Operations for the New York City Department of Juvenile Justice.

    Get the full story on challenges to Jerome Davis’ expert opinions and testimony with an in-depth Challenge Study. 

    Michael Lyman is currently employed as a litigation consultant in the area of police practices and procedures and has served as an expert witness since August 2001. In May 2019, he retired from the Columbia College Department of Criminal Justice and Human Services where I was employed as a full professor for 32 years.

    He has authored seven books dealing with various areas of policing. These have been published by both nationally and internationally recognized publishing houses.

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

    Discussion by the Court

    Jerome Davis

    Defendants criticized Davis because (1) his testimony was not based on sufficient facts or data; (2) his methodology was not based on reliable principles; and (3) even if his methodology were sound, he failed to reliably apply his methodology to the facts of the case.

    Defendants added that Davis only relied upon the JIAC security footage in forming his opinion, and because the video lacks sound and is shot from an obstructed angle, most of Davis’ opinions are based on speculation.

    Plaintiff argued that Davis’ testimony is necessary to refute Defendants’ claim that Lofton’s continued resistance justified their prone restraint. To do so, Plaintiff proffered that Davis will provide a definition of “control” which the jury can use to determine whether Defendants’ actions were objectively reasonable.

    When pressed on what Davis’ definition of control was, the ultimate consensus came from Davis’ deposition. There, Davis said, “If you look at the video and you watch, while he’s in that prone position on the floor, within a minute or two of that, you see no movement at all, which means, from that point on, they had complete control of Lofton.” In sum, Davis’ definition of “control,” based on commonly recognized corrections standards, is the point at which the detainee has ceased struggling or has stopped moving.

    Davis’ Definition of Control

    When the Court asked Defendants whether it would “be appropriate for Davis to opine on his definition of control,” Defendants replied, “I think that opinion would not necessarily be improper.” In fact, in response to the Court’s questions, Defendants stated that they “would not disagree” with “Davis’ expert opinion that once a Defendant has stopped struggling . . . it is not inappropriate at that point to consider that he’s under control.”

    Given that Davis’ definition of control is uncontroverted, the Court allowed Davis to testify about how “control” is defined by the corrections community and what uniform national standards recognize as signs of a Defendant being under officer control.

    Davis’ Conclusions Regarding Control

    Because the question of “control” is a factual finding, the Court decided that Davis will also not be permitted to testify as to his factual or legal conclusions about whether Lofton was under control since allowing him to do so would essentially “tell the jury what result it should reach without providing any explanation of the criteria on which that opinion is based or any means by which the jury can exercise independent judgment.”

    The Court cannot allow an expert to “usurp the function of the jury in deciding the facts” or “interfere with the function of the judge in instructing the jury on the law.”

    Michael Lyman

    Defendants made a similar argument regarding expert Lyman’s testimony. They asked the Court to prohibit Lyman from testifying about the reasonableness of Defendants’ force because “objective reasonableness” is a fact issue for the jury and “excessive force” is a legal conclusion that the judge must instruct on.

    The Court permitted Lyman to testify regarding nationally accepted corrections practices regarding use of force and the JIAC policies, but it did not allow him to testify as to any legal conclusions or other issues the jury will be asked to decide, such as whether the officers’ conduct was reasonable, excessive, or unnecessary.

    Additionally, the Court did not permit Lyman to testify as to the credibility of any witness, the state of mind of any witness or party, or advise the jury as to case law or constitutional standards.

    Held

    The Court granted in part and denied in part the Defendants’ motion to strike or exclude certain opinions of Jerome Davis and Michael Lyman.

    Key Takeaway:

    The Court did not permit Davis to testify as to his own conclusions regarding the officers’ control over Lofton because the jury can watch the JIAC security footage for itself and form its own opinions as to whether Lofton was under the officers’ control.

    Similarly, the Court did not permit Lyman to testify as to any legal conclusions or other issues the jury will be asked to decide, such as whether the officers’ conduct was reasonable, excessive, or unnecessary.

    Case Details:

    Case Caption: Teetz V. Sedgwick County, Kansas Et Al
    Docket Number: 6:22cv1134
    Court: United States District Court, Kansas
    Order Date: October 03, 2024
  • Law Enforcement Expert Witness’ Testimony About Presence of Probable Cause Excluded

    Law Enforcement Expert Witness’ Testimony About Presence of Probable Cause Excluded

    This case arose when Defendant Jacob Salamon, a police officer for the City of Loveland, Ohio, arrested Plaintiff Amanda Caton, an off-duty police officer for the City of Cincinnati, Ohio, for operating a vehicle when intoxicated (“OVI”). Plaintiff Patrick Caton, Amanda Caton’s husband and also an off-duty police officer for the City of Cincinnati, was a passenger in the vehicle when Amanda Caton was pulled over and arrested, and he was present when Officer Salamon later dropped off Amanda Caton at their home. The Catons have sued Officer Salamon, former Loveland Police Chief Dennis Rahe, Officer Shawn Parks, and the City of Loveland for violating their civil rights.

    Plaintiffs proffered Tony Corroto and Defendants proffered Joseph Suhre as their experts on police practices involving OVI investigations. Plaintiffs broadly moved to exclude or limit the expert report and testimony of Suhre under 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). Although Defendants move to strike Corroto’s expert opinion in full, they only specifically object to his opinion that Defendants lacked probable cause to stop and arrest Amanda Caton. 

    Law Enforcement Expert Witnesses

    Joseph Suhre is the owner and principal of Suhre & Associates DUI and Criminal Defense Lawyers. Suhre has dedicated his practice to the defense of OVI cases and other criminal offenses. Suhre has over 20 years of criminal defense experience and an additional 5 years of experience as a police officer. He has handled hundreds of DUI cases before dozens of judges in numerous counties. Because of this, Joe is uniquely qualified to defend his clients against DUI and criminal charges.

    As an attorney, he completed training in OVI detection through courses with the Nation Highway Traffic Safety Administration (“NHTSA”) and Advanced Roadside Impaired Driving Enforcement, both likely more than fifteen years ago.

    Discover more cases with Joseph Suhre as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Tony Corroto served the City of Atlanta Police Department as a police officer for 17 years, spending 14 of them as a senior police officer assigned to the driving under the influence (DUI) task force. He specialized as a standardized field sobriety test (SFST) and drug recognition expert (DRE) instructor. He taught 46 police recruit classes DUI enforcement at the Atlanta Police
    Academy (APA).

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

    Discussion by the Court

    Joseph Suhre

    Plaintiffs first argued that Suhre is not qualified to testify as a police practices expert. The Court agreed with Defendants that Plaintiffs framed the issue too broadly. The issue is whether Suhre is qualified to offer expert testimony on police practices involving investigations into potential instance of OVI by applying the NHTSA’s OVI-detection standards.

    Though Suhre has not offered expert testimony in a court of law before, he has been retained to instruct about NHTSA standards by the publishing industry, attorneys, and law enforcement organizations. The Court finds that he is qualified with specialized knowledge in the application of NHTSA standards that “will help the trier of fact to understand the evidence or to determine a fact in issue.

    First, Plaintiffs criticized Suhre’s statement in his expert report that Officer Salamon observed what the NHTSA refers to as a “vigilance problem” when there was “a 4-second delay between the [traffic] light turning green and Caton’s vehicle proceeding forward.” The NHTSA Visual Detection publication does not define what amount of time is “normal” versus “unusually long.” With no further guidance, the Court cannot say that Suhre’s opinion applying his own judgment to the NHTSA standard is unreliable.

    Elsewhere, Suhre opines that Officer Salamon had probable cause to pull Amanda Caton over for traffic violations. However, the Court held that Suhre’s opinion that she did violate a certain traffic provision will not help a factfinder “determine a fact in issue” for purposes of Rule 702(a).

    Second, Plaintiffs objected that Suhre cannot testify about whether Officer Salamon had reasonable suspicion or probable cause to pull over Amanda Caton for a violation. The Court agreed because Suhre’s opinions constituted inadmissible legal conclusions.

    The Court also excluded Suhre from testifying on the application and meaning of statutes and case law generally.

    Tony Corroto

    Defendants do not challenge his Corroto’s qualifications to offer expert testimony. Rather, they moved to strike his testimony to the extent that he states in his report that Officer Salamon did not have probable cause to stop or arrest Amanda Caton. The Court already held in regard to Suhre’s testimony that an expert witness cannot testify about whether probable cause exists.

    Therefore, the Court will strike and not consider Corroto’s report to the extent that he opines that Officer Salamon did not have probable cause to stop or arrest Amanda Caton. However, the Court refused to exclude Corroto’s report or testimony in full because of the improper opinion about probable cause.

    Held

    The Court limited the opinions of both Joseph Suhre and Tony Corroto. Suhre will not be excluded from testifying because he is unqualified to give opinion testimony under Federal Rule of Evidence 702. Corroto will not be permitted to testify about whether probable cause existed to stop or arrest Amanda Caton, but his report will not be otherwise excluded.

    Key Takeaways:

    • Expert witnesses may not testify to legal conclusions or to the applicability or interpretation of a particular statute or regulation. Courts are “capable” of interpreting statutes “without the assistance of an expert.
    • Although an expert’s opinion may ’embrace an ultimate issue to be decided by the trier of fact, the issue embraced must be a factual one.
    • Courts permit experts to testify about discrete police-practice issues when those experts are properly credentialed and their testimony assists the trier of fact.

    Case Details:

    Case Caption: Caton V. Salamon
    Docket Number: 1:22cv345
    Court: United States District Court for the Southern District of Ohio, Western Division
    Order Date: September 18, 2024
  • Experts are entitled to a reasonable fee despite objections to the admissibility of their opinions

    Experts are entitled to a reasonable fee despite objections to the admissibility of their opinions

    In February 2016, Plaintiffs-Appellants Scott Miller and Michael Spaulding, two Seattle Police officers, fatally shot Che Andre Taylor, a Black man, as they tried to arrest him. Four days after the shooting, Defendant-Appellee Kshama Sawant, then a member of the Seattle City Council, told a crowd of protestors in front of the Seattle Police Department Headquarters that Taylor’s shooting was a “blatant murder at the hands of the police.” Following an inquest into Taylor’s killing, prosecutors declined to file criminal charges against Miller and Spaulding on the ground that there was insufficient evidence to prove that they killed Taylor with the requisite “malice” to be guilty of criminal homicide, as required by Washington law. Roughly three months after the inquest concluded, Sawant told a crowd of protestors that Taylor was “murdered by the police.”

    Miller and Spaulding filed suit in federal court, alleging state law claims for defamation and outrage (i.e., intentional infliction of emotional distress), as well as “federal defamation,” against Sawant.

    The district court dismissed the “federal defamation” claim when it granted Sawant’s motion for partial judgment on the pleadings, but chose to exercise supplemental jurisdiction over the remaining state law defamation and outrage claims. The district court granted Sawant’s motion for summary judgment as to the state law defamation and outrage claims, and Miller and Spaulding appealed the district court’s grant of that motion.

    The appellate court affirmed the district court’s grant of Sawant’s motion for summary judgment but considered whether the district court erred when it granted Sawant’s motion for recovery of expert witness deposition expenses, which included fees for time spent in preparation for deposition.

    Law Enforcement Expert Witness

    Professor Gregory Gilbertson (Ret.) is an expert witness in police practices. He specializes in police use of force, false arrest, officer misconduct, criminal and self-defense casework. He is also a former SWAT team officer, senior patrolman, stakeout squad officer, juvenile investigator, school resource officer, private investigator, and Guardian ad Litem. 

    Get the full story on challenges to Gregory Gilbertson’s expert opinions and testimony with an in-depth Challenge Study. 

    Law Expert Witness

    Lisa Daugaard is an American criminal justice reform activist. She is the director of the nonprofit organization Public Defender Association and a commissioner of the Community Police Commission in Seattle. She received a 2019 MacArthur Fellowship for her criminal justice reform work.

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

    Discussion by the Court

    Sawant sought payment of the fees her expert witnesses had incurred in responding to Miller and Spaulding’s discovery

    In December 2022, Miller and Spaulding deposed two witnesses who Sawant identified as experts in her initial disclosures. Sawant had retained the identified experts as potential defense witnesses. That same month, Sawant sent Miller and Spaulding the experts’ invoices and requested payment for the fees her expert witnesses had incurred in responding to Miller and Spaulding’s discovery, including time spent preparing for the deposition. Sawant sought payment of the fees pursuant to Federal Rule of Civil Procedure 26(b)(4)(E).

    However, Miller and Spaulding failed to provide payment. Sawant covered the costs after Plaintiffs refused to pay, and filed a motion to compel payment.

    As relevant here, the expert witness deposition fees Sawant sought included compensation for time the witnesses had spent preparing for their depositions.

    Specifically, Sawant sought $1,367.50 for Professor Gregory Gilbertson’s expert witness deposition fees and $1,770.00 for Lisa Daugaard’s expert witness deposition fees.

    In June 2023, the district court granted Sawant’s motion, noting there is no clear guidance from the Ninth Circuit regarding whether the reimbursement of preparation time is permitted under Rule 26, but concluding that Sawant’s request was reasonable, that awarding the fees “falls squarely within the ambit of Rule 26(b)(4)(E),” and that no manifest injustice would result from awarding the fees.

    Miller and Spaulding’s objected to the admissibility of Daugaard’s opinions

    Miller and Spaulding argued that the district court erred when it granted Sawant’s motion for Daugaard’s expert witness deposition expenses without first assessing whether she qualified as an expert under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

    To begin with, the plain text of Rule 26 provides that a district court “must require” that a deposing party pay “a reasonable fee for time spent in responding to discovery” by “an expert whose opinions may be presented at trial.” The Court held that Miller and Spaulding’s objection to the admissibility of Daugaard’s opinions did not obviate their obligation to pay Daugaard a reasonable fee under Rule 26.

    Expert witness deposition preparation fees that were awarded to Sawant were reasonable and their award did not result in manifest injustice

    Miller and Spaulding also argued that the district court erred when it granted Sawant’s motion for expert witness deposition fees for Gilbertson’s and Daugaard’s time spent preparing for their depositions. That is, Miller and Spaulding maintained that Rule 26(b)(4)(E) permitted expert fees only for time spent during a deposition, and not for time spent preparing for a deposition.

    The Court held that Miller and Spaulding’s suggestion that such fees are never recoverable cannot be squared with Rule 26’s plain text, which requires the “party seeking discovery” to “pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A).”

    Moreover, Miller and Spaulding raised several policy concerns based on “costs and incentives” and “the potential for abuse” if deposition preparation fees are recoverable. But the policy concerns they raised are addressed by Rule 26’s existing textual limitations on recoverable fees: namely, that fees must be “reasonable,” and their award must not result in “manifest injustice.” Gilbertson spent only 2.5 hours preparing and Daugaard only 2.2 hours, and Miller and Spaulding did not contest the fairness of Gilbertson’s and Daugaard’s hourly rates.

    Held

    In conclusion, the appellate court concluded that the district court did not err when it granted Sawant’s motion for recovery of her expert witnesses’ deposition fees.

    Key Takeaway:

    Therefore, the plain text of Federal Rule of Civil Procedure 26 allows for the recovery of reasonable expenses for the time an expert witness, whose opinions may be presented at trial, spends preparing for a deposition. Plaintiffs’ objection to the admissibility of the expert’s opinions did not obviate their obligation to pay the expert a reasonable fee under Rule 26.

    Case Details:

    Case Caption: Scott Miller V. Kshama Sawant
    Docket Number: 2:18cv506
    Court: United States Court of Appeals for the Ninth Circuit
    Order Date: August 22, 2024
  • Law Enforcement Expert Witness’ Testimony About Defendants Deviating from Nationally Accepted Principles Excluded

    Law Enforcement Expert Witness’ Testimony About Defendants Deviating from Nationally Accepted Principles Excluded

    On May 26, 2020, South Bend police officers began clearing a homeless encampment on city property after prior notice and concerns about crime and COVID-19. Tracy Leliaert, a person with a home who protested the clearing, refused to leave even when warned repeatedly. Officer Joshua Morgan and Officer Ryan Williams eventually arrested her and two others for trespassing. She pursued excessive force claims under the Fourth Amendment and a First Amendment right-to-assembly claim, though only one claim remains today. 

    Leliaert retained Chet Epperson to review the evidence and opine on police practices and standards. Chet Epperson opined that the City of South Bend, Indiana, Officers Joshua Morgan, Ryan Williams, and Police Chief Scott Ruszkowski deviated from Nationally Accepted Principles of First Amendment Right to Assembly, Use of Force in Their Interactions with Leliaert, Internal Affairs Investigations and Early Identification Systems in the Complaint of Tracy Leliaert.

    Defendants argued that Epperson did not have the necessary facts or knowledge to reach his conclusions, that some of his opinions did not fit the case, and that he at times supplanted the jury’s role.

    Law Enforcement Expert Witness

    Chet Epperson earned a bachelor’s degree in sociology and anthropology, and then a master’s degree in public administration from Rockford University. He has published and taught seminars on police standards. He has served as a police practices consultant and appointed court monitor for police practices since 2015.

    Discover more cases with Chet Epperson as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    The Court held that the opinions neither fit nor serve the legitimate purpose of educating the jury, much less without substantial and overweighing confusion.

    Epperson also proposed to opine about the First Amendment claim (first opinion), but this claim too cannot survive summary judgment as a matter of law. Whether the City had a plan in place to remove and then safely house the homeless has no bearing on the First Amendment claim (or Eighth Amendment claim); and that proves truer still when no such claim survives at summary judgment.

    Epperson also acknowledged that whether the land was a public forum would make a difference to a First Amendment claim, but he admitted that he has no information to determine whether it was. He admitted he hasn’t done any investigation and doesn’t have any facts that would make the tent city a public forum.

    When Epperson opined that Officer Morgan deviated from nationally accepted principles of use of force, the Court held that the jury is well positioned to decide whether Officer Morgan acted reasonably.

    Epperson intended to opine that Officer Morgan deviated from a nationally-accepted practice on less lethal encounters in using a knee over Leliaert’s neck. The Court held that the Fourth Amendment standard for excessive force is an objective standard, and his testimony about standards of police practice are immaterial to determining what is objectively reasonable under the Fourth Amendment.

    Held

    The Court granted the motion to exclude the testimony of Chet Epperson.

    Key Takeaway:

    Epperson’s opinion has a glaring factual gap at the start that renders it unreliable—it assumes Leliaert was homeless when she was not. Whether the City had a plan in place to remove and then safely house the homeless has no bearing on a First Amendment claim (or Eighth Amendment claim) for someone who was not homeless.

    Epperson just assumes Leliaert had a right to be there because, simply stated in his words, she was there and it was property owned by the City. His factual gaps thus reveal gaps in his methodology, and reveal his opinion to be barely more than his say-so.

    Case Details:

    Case Caption: Leliaert V. City Of South Bend Et Al
    Docket Number: 3:22cv359
    Court: United States District Court for the Northern District of Indiana, South Bend Division
    Order Date: August 20, 2024
  • Law Enforcement Expert Witness Deemed Qualified To Opine On Law Enforcement’s Reaction to High-Stress Situations

    Law Enforcement Expert Witness Deemed Qualified To Opine On Law Enforcement’s Reaction to High-Stress Situations

    This civil rights action arises out of an October 23, 2020 traffic stop involving Plaintiff, Kary Jarvis and Daytona Beach Police Department officers Marville Tucker and James Mackenzie. As a result of the traffic stop, Plaintiff was injured and filed a complaint alleging false arrest.

    Plaintiff sought to exclude Defendants’ expert witness Dr. Richard Hough from testifying during the trial. Defendants retained Hough to provide expert witness testimony concerning police practices in Florida and to rebut the opinions of Plaintiff’s expert witness Thomas J. Tiderington.

    Law Enforcement Expert Witness

    Richard Hough holds master’s degrees in public administration and a Doctor of Education degree with a concentration in public administration. He was previously employed for more than twenty years in law enforcement, including work at the Florida Department of Juvenile Justice, Florida Sheriff’s Office, and police departments throughout the state of Florida. He has also held academic appointments at various universities, where he taught courses focused on criminal justice, policing, and criminology.

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

    Discussion by the Court

    Plaintiff sought to exclude Hough’s opinions contending they are “not based on credible methodology in policing, unreliable, and will not assist the trier of fact as to the ultimate issue in this case.”

    Competence

    Plaintiff sought to exclude certain opinions of Hough, contending that Hough lacks competence to render those opinions.

    In his report, Hough opines about the high crime rate in Daytona Beach, law enforcement’s reaction to high-stress situations, the investigation at issue, industry standards, and whether a “Response to Resistance/ Blue Team Report” was required “in all arrest incidents.”

    The Court found Hough qualified to testify about the “high-stress circumstances police officers must evaluate when investigating a suspect that may be involved in criminal activity” on account of his extensive educational background and experience.

    Helpfulness

    Plaintiff argued that certain opinions offered by Hough “will not be helpful to the jury” and comprise “purely legal conclusions.”

    The Court held that Hough’s opinions are sufficiently helpful under Daubert as they relate to law enforcement’s practice, procedures, and training. A lay juror would not know this information.

    As for Hough’s opinions concerning whether Defendants Tucker and Mackenzie’s “tactics . . . were reasonable” and in accord with “constitutional guidance,” and whether a “pattern or practice of intentional behavior or official misconduct” or “a violation of established law” exists, the Court excluded them as legal conclusions. Whether Defendants Tucker and Mackenzie acted in a “objectively reasonable” manner “is the very question that a jury would decide should this case go to trial.”

    Hough opined “[t]he official report of [the] officers in this matter are consistent and agree on the facts and do not contradict physical evidence in the case.” The Court found that this opinion is not helpful to the jury, as the jury does not need an expert to determine whether the officers’ reports are consistent with each other and the physical evidence in the case. In other words, a jury can compare the reports and the evidence in this case and make consistency determinations without Hough’s assistance.

    Federal Rules of Evidence Rule 403

    Plaintiff further argued that Hough’s “testimony should be excluded pursuant to Rule 403.” The Court did not find that Hough’s remaining opinions warrant Rule 403 exclusion as they constituted probative evidence and were not substantially outweighed by unfair prejudice, confusion of the issues, or the likelihood of misleading the jury.

    Held

    In conclusion, the Court granted in part and denied in part the Plaintiff’s Daubert motion to exclude the testimony of Defendant’s expert Richard Hough.

    Key Takeaways:

    • When Hough opined that the official report of the officers in this matter are consistent, the Court held that the jury can make consistency determinations without Hough’s assistance.
    • A lay juror would not know about Hough’s area of expertise which is law enforcement’s practice, procedures, and training.
    • With more than twenty years of extensive experience in law enforcement and academic appointments at various universities, the Court considered Hough qualified to opine about the high crime rate in Daytona Beach, law enforcement’s reaction to high-stress situations, the investigation at issue and industry standards.

    Please read about the Daubert Challenges filed against Thomas Tiderington in the following blog: Law Enforcement Expert Witness’ Testimony on Certain Customs and Practices Excluded

    Case Details:

    Case Caption: Jarvis V. City Of Daytona Beach Et Al
    Docket Number: 6:23cv508
    Court: United States District Court for the Middle District of Florida, Orlando Division
    Order Date: August 08, 2024
  • Law Enforcement Expert Witness’ Supplemental Report on Deviation from Police Practices Admitted

    Law Enforcement Expert Witness’ Supplemental Report on Deviation from Police Practices Admitted

    Plaintiff Kevin Strickland filed this lawsuit against the Kansas City, Missouri, Board of Police Commissioners and five Kansas City police officers for alleged unconstitutional conduct that resulted in his wrongful conviction.

    On June 21, 2024, Plaintiff issued its police practices expert, Russell Fischer’s supplemental report. The supplemental report is 2.5 pages long, and the revisions are made based on three third-party deposition transcripts that Fischer states were not available to him at the time of his initial report dated April 5, 2024. The relevant deposition transcripts are those of Pete Edlund (deposed on April 3); Alfred Gordon (deposed on May 13); and Bridgett Gordon (deposed on May 13). Pete Edlund was a KCPD homicide detective who investigated the 1978 triple homicide. Alfred and Bridgett Gordon were both interviewed by the KCPD during the triple homicide investigation.

    Defendants moved to strike the supplemental report, arguing it contained new opinions untimely disclosed in violation of Rule 26(e).

    Law Enforcement Expert Witness

    Russell Fischer retired as the Chief of the Criminal Investigations Division specifically in charge of all investigative matters relating to homicide, robbery, sex crimes, domestic crimes and related functions task force operations.

    Get the full story on challenges to Russell Fischer’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    The Court held that the parties’ pretrial disclosures under Rule 26(a)(3) were not yet due, so the issue was whether the Supplemental Report contained “entirely new opinions” as Defendants alleged or rather newly discovered information that merely “completed” the initial report. To begin with, Defendants failed to provide specific examples of how the Supplemental Report provided “entirely new opinions,” and the Court found none. Both reports opined on whether officers deviated from minimally acceptable police practices during the homicide investigation. The Supplemental Report merely considered Alfred and Bridgett Gordon and Pete Edlund’s version of events in opining on the same.

    Defendants also took issue with the fact the Supplemental Report was disclosed after the discovery deadline passed and after Defendants’ deadline to depose Fischer. While the timing was not ideal, Plaintiff maintained two of the three deposition transcripts were not available until the day discovery closed, making it impossible to provide the Supplemental Report beforehand. Plaintiff also added that Defendants have never attempted to take Fischer’s deposition to date.

    The Court denied the Defendants’ motion since finding supplementation will best serve the purposes of Rule 26.

    To ensure Defendants were not disadvantaged in any way, the Court permitted Defendants to depose Fischer out of time.

    Held

    The Court denied the Defendants’ motion to strike as untimely and improper the supplemental report of Plaintiff’s expert witness, Russell Fischer.

    Key Takeaway:

    Rule 26(e)(1) provides that “a party who has made a disclosure under Rule 26(a) must supplement or correct its disclosure in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” 

    However, Rule 26(e) does not provide a vehicle for parties to merely “revise or change its disclosures,” “to bolster an expert’s opinion,” or “to present entirely new theories.”

    Case Details:

    Case Caption: Strickland V. Kansas City, Missouri Board Of Police Commissioners Et Al
    Docket Number: 4:23cv313
    Court: United States District Court, Missouri Western
    Order Date: July 19, 2024
  • Law Enforcement Expert Witness’ Testimony Based on His Review of Relevant Materials

    Law Enforcement Expert Witness’ Testimony Based on His Review of Relevant Materials

    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.

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

    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
  • Law Enforcement Expert Witness’ Testimony on Certain Customs and Practices Excluded

    Law Enforcement Expert Witness’ Testimony on Certain Customs and Practices Excluded

    This civil rights action arises out of an October 23, 2020 traffic stop involving Plaintiff, Kary Jarvis and Daytona Beach Police Department officers Marville Tucker and James Mackenzie. As a result of the traffic stop, Plaintiff was injured and filed a complaint alleging false arrest.

    Defendants, City of Daytona Beach as well as Marville Tucker and James Mackenzie filed respective Daubert motions to exclude the testimony of Plaintiff’s expert Thomas Tiderington. Tiderington opined that the Daytona Beach Police Department has consistently demonstrated a custom and practice of inadequately supervising, training, and disciplining its personnel.

    Law Enforcement Expert Witness

    Thomas J. Tiderington has served as a full-time law enforcement officer with three different police departments and as a Group Supervisor for the United States Drug Enforcement Administration’s South Florida Regional Task Force. He has trained over 10,000 federal, state, and local law enforcement officers on police practices and criminal investigations.

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

    Discussion by the Court

    Opinion One

    Tiderington stated that Defendants’ actions were unreasonable, unjustifiable, and deviated from acceptable law enforcement standards. Defendants Marville Tucker and James Mackenzie argued that Tiderington’s opinion should be excluded because it is a legal conclusion and will mislead the jury.

    The Court held that Defendants’ motion to exclude opinion one was granted to the extent that Tiderington may not opine that Defendants’ application of force was unreasonable or unjustifiable. Defendants’ motion was otherwise denied as to opinion one.

    Opinion Two

    Tiderington stated that the Daytona Beach Police Department has a custom and practice of inadequately supervising, training, and disciplining its personnel and but for this pattern Plaintiff would not have been detained and incarcerated. 

    Defendants Marville Tucker and James Mackenzie argued that Tiderington’s opinion should be excluded because it is a legal conclusion that encroaches on the purview of the jury.

    The Court held that Tiderington’s report discussed his experience but failed to establish “how that experience led to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” 

    Opinion two discussed the custom, practice, and patterns of the Daytona Beach Police Department, but the report only cited one example beyond the present case. Tiderington confirmed this limited basis for the opinion in his deposition. 

    The Court excluded Tiderington’s opinion two as unreliable because it lacked a reasoned analysis supported by data, identified standards, or comparison with practices in other sheriff’s offices.

    Held

    Defendant, City of Daytona Beach’s, motion to exclude expert opinions of Thomas Tiderington was fully granted by the Court. However, the Court granted in part Defendant Marville Tucker and Defendant James Mackenzie’s motion to exclude certain opinions of Tiderington.

    Key Takeaway:

    Tiderington’s opinion concluding that Defendants’ application of force was unreasonable or unjustifiable was excluded as to opinion one since it is a legal conclusion and could mislead the jury. Tiderington’s opinion in opinion two concerning Defendant’s custom and practice was also excluded because it lacked a reasoned analysis supported by data, identified standards, or comparison with practices in other sheriff’s offices.

    Case Details:

    Case Caption: Jarvis V. City Of Daytona Beach Et Al
    Docket Number: 6:23cv508
    Court: United States District Court, Florida Middle
    Order Date: July 08, 2024
  • Law Enforcement Expert Witness’ Report Criticizing the Actions of SPD Deemed Conclusory

    Law Enforcement Expert Witness’ Report Criticizing the Actions of SPD Deemed Conclusory

    A district judge in Washington refused to admit the Law Enforcement Expert Witness’ testimony with regard to the claims of outrage, negligence and assault filed against the Seattle Police Department.

    On May 30, 2020, organizers planned two demonstrations in downtown Seattle to protest the May 25, 2020 killing of George Floyd in Minneapolis: (1) “The March for George Floyd,” scheduled from 12:00 p.m. to 6:00 p.m. on Fifth Avenue, and (2) “The Defiant Walk of Resistance Against Injustice,” scheduled to begin at 3:00 p.m. and to go from Westlake Park to the federal courthouse at Seventh Avenue and Stewart Street. Sergeant Sean Moore served as the leader of Platoon 1’s West Bikes #3 at The Defiant Walk of Resistance Against Injustice. 

    After learning about the demonstrations through his parents or his church, Avery decided to attend the events along with his young son J.A., other family members, and church members.

    Plaintiffs Are Injured During the May 30, 2020 Demonstrations

    An escalation between officers and demonstrators ensued after the arrest of one of the demonstrators. Several demonstrators, including two female demonstrators (one wearing a black sweatshirt and one wearing a white t-shirt and bike helmet), moved toward the police line. At one point, Officer Moore ran up to the line from behind and repeatedly yelled “Move back!” with a blast ball in his left hand and OC spray in his right hand. The female demonstrator wearing the bike helmet then shouted “You move back!” while pushing over the line, grabbing an officer’s baton, and pushing back against him.

    At the beginning of this disturbance, Avery moved quickly to his left towards the disturbance, holding J.A. to his right side and approaching until he was immediately behind the female demonstrator. Then, without verbal warning, Officer Moore deployed OC spray in the direction of this demonstrator.

    When Officer Moore deployed the OC spray at the female demonstrator in the bike helmet, Avery had his left arm around her waist as she turned away from the spray, exposing his left side to Officer Moore’s deployment. Avery had his right arm around J.A., who stood behind his father and the female demonstrator. As Avery and J.A. retreated from the altercation, Avery placed his left hand on or near J.A.’s face and kept his arms around him as they walked away. Moments later, J.A. began reacting to the OC spray’s painful effects and received assistance from other demonstrators.

    Motion to exclude

    Avery initiated this action in April 2022, raising claims for violations of the Washington Law Against Discrimination, outrage, negligence, assault, and constitutional violations under 42 U.S.C. § 1983.

    The City moved to exclude the testimony of Plaintiffs’ law enforcement expert, Russ Hicks, because his report consisted of opinions which were “improper legal conclusions and lacked any expert analysis that might be helpful to a jury.”

    Law Enforcement Expert Witness

    Russ Hicks is a retired, 30-year law enforcement officer and former police academy supervisor and trainer. He was a commissioned police officer from 1991-2016. He was also an instructor at the Washington State Criminal Justice Training Commission (WSCJTC) from 2007-2021.

    Discover more cases with Russ Hicks as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Many of Hicks’ Opinions Consisted of Legal Conclusions

    The Court agreed with the City when it contended that many of Hicks’ opinions consisted of legal conclusions. For instance, Hicks repeatedly characterized the actions of Seattle Police Department “SPD” as “negligent,” concluded that Officer Moore’s use of force was “excessive,” and stated that Plaintiffs “were seized” by Officer Moore’s use of force. The Court held that almost all of Hicks’ opinions are supported by nothing more than conclusory statements. 

    Hicks’ Opinions Were Mostly Unsupported

    Hicks speculated that it is more likely than not that if Officer Moore had provided a warning about the pepper spray, she would have let go of the baton and Sgt. Moore wouldn’t have deployed this MK-9 pepper spray. The Court held that Hicks provided no support whatsoever for this opinion, rendering it unreliable. He did not explain how his experience led to the conclusion reached.

    As for Hicks’ opinion that SPD’s failure to “provide or call for aid for Avery and his 7-year-old son” was contrary  to law, training, and policy, the Court held that it did not offer any specialized knowledge and in fact contradicted the video evidence. He asserted that the alleged failure to aid was contrary to training, explaining only that officers “are provided with instruction on providing first aid to subjects injured by law enforcement” at WSCJTC training. The Court held that he did not explain how such training bears on the facts at issue beyond the suggestion that officers knew how to administer first aid.

    The Court found Hicks’ opinion that “Officer Moore deviated from SPD policy regarding providing warnings in advance of deploying pepper spray despite having enough time to give a warning” similarly unsupported because untrained layman would be qualified to determine that issue.

    Finally, Hicks opined that Officer Moore should have used the MK-4 pepper spray instead of the MK-9 because “it is possible that the smaller dispersal area [of the MK-4] would have satisfied the immediate safety goal.” The Court, once again, held that Hicks failed to “back up his opinion with specific facts.”

    Held

    The Court granted the City’s motion to exclude the testimony of Plaintiffs’ law enforcement expert, Russ Hicks.

    Key Takeaway:

    The Court held that almost all of Hicks’ opinions were supported by nothing more than conclusory statements. Conclusory assertions like those contained in Hicks’ report would not assist the trier of fact to understand the evidence.

    Nothing in either Daubert or Rule 702 requires the district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.

    Case Details:

    Case Caption: Avery V. City Of Seattle Et Al
    Docket Number: 2:22cv560
    Court: United States District Court, Washington Western
    Order Date: June 12, 2024
  • 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.”

    Held

    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