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Expert Witnesses
Monthly Law Journal Article: Expert Witnesses in Police Excessive Force Cases, 2012 (10) AELE Mo. L. J. 501.
While upholding a trial court judgment finding that two officers used excessive force in their apprehension and arrest of the plaintiff and an award of damages, a federal appeals court ruled that the trial court did not abuse its discretion in admitting the deposition testimony of an unavailable medical expert witness. The expert qualified as an expert and had been extensively cross-examined during his deposition, he was unavailable, and defendants had notice. The trial court also did not err in submitting the plaintiff's punitive damage claim to the jury and the award of such damages against one defendant was supported by substantial evidence. Fletcher v. Tomlinson, #16-4399, 2018 U.S. App. Lexis 19171 (8th Cir.).
A lawsuit claimed that a police officer investigating a tip that illegal drugs were being sold at a convenience store “sucker-punched” a store employee for no known reason, and then kept beating and kicking him for about two minutes as he attempted to get away. A store surveillance tape recorded the incident. At his federal criminal trial for willfully depriving the employee of his Fourth Amendment right to be free from excessive force inflicted by a law-enforcement officer, the officer wanted to introduce expert witness testimony from a former officer that his actions were consistent with police department standards. The trial court excluded the testimony, reasoning that departmental policy was immaterial to the Fourth Amendment standard to be applied and that the expert’s proposed testimony might include an improper opinion about the defendant’s state of mind. The jury returned a guilty verdict. A federal appeals court upheld this result, ruling that such expert testimony is sometimes unhelpful and irrelevant, especially when no specialized knowledge was needed to decide whether an officer’s actions were objectively unreasonable. The alleged misconduct in this case was “easily” within the grasp of lay jurors. U.S. v. Brown, #16-1603, 2017 U.S. App. Lexis 17403 (7th Cir.).
An officer and his partner encounter
a woman walking out into traffic with her face covered in blood. She pointed to
her husband, who she said struck her, and one of the officers walked towards
him, ordering him to stop, put his hands behind his back, and stop screaming.
The man ignored these orders and was grabbed. He attempted to twist away,
causing him to fall. After being handcuffed, he continued to struggle and fell
down again. Hours later, at the police station, he complained of pain, and was
taken to a hospital where an arm fracture was diagnosed. He pled guilty to
resisting arrest but sued for excessive force. The trial judge stated a
deadline for the plaintiff to disclose his expert witness. He failed to provide
the expert's report and failed to respond to a motion to strike the expert's
testimony. He was barred from presenting the expert at trial. The federal
appeals court upheld a verdict for the officer. Challenges to evidentiary
rulings were rejected as the plaintiff failed to provide transcripts regarding
tho challenged rulings. Hall v. Jung, #15-2102, 2016 U.S. App. Lexis 6590 (7th
Cir.).
A motorist claimed that
a trooper who stopped him screamed at him, pulled him out of the car, and
injured him by beating him. The trooper claimed, and the motorist denied, that
the motorist bent over as if reaching for something, and that a hammer was
visible on the floor. The motorist claimed that the hammer was under the seat
and not visible. Following the incident, the motorist's face was bruised and an
MRI months later showed "minimal disc bulging, Her claimed neck and upper
back pain. Summary judgment in favor of the defendant trooper was reversed by a
federal appeals court. There were disputed issues of fact, including as to the
seriousness of the plaintiff's injuries. The plaintiff's lack of a medical
expert on the issue was not fatal to his claim as the injuries of the type
claimed were “within the range of common experience.” A jury could weigh the
credibility of the plaintiff's version of the incident versus the trooper's and
compare the plaintiff's medical records and subjective assessment of pain
against the trooper's medical expert testimony. Ziesmer v. Hagen, #14-2229,
2015 U.S. App. Lexis 7713 (8th Cir.).
A 22-year-old an was in his apartment at night
with two friends when police knocked on the door, yelled "police, search
warrant," and started to force open the front door. The man ran upstairs
to his bedroom, grabbed an unloaded shotgun and pointed it at the officers as they
followed him up the stairs. An officer shot him dead. The man's estate, in a
lawsuit claiming that the search was conducted in an unreasonable manner,
argued that there was no need to conduct it after dark because the officers
were only searching for loot of "modest value." It was also argued
that the man, when looking out the front window after the knocking, had seen
one of the officers holding an automatic rifle, dressed in a dark hoodie,
having long hair, earrings, a goatee, and sideburns, and yelled something like
"we are getting robbed again" before fleeing upstairs to get the
shotgun. A federal appeals court upheld summary judgment for the shooting
officer, agreeing that even if he may have exceeded proper constitutional
bounds in leading the search, given his undercover appearance, he was still
entitled to qualified immunity. There was insufficient evidence to support
claims against the county when the plaintiff's lawyer failed to authenticate an
expert witness report that could not be admitted into evidence absent a signed
affidavit. Estate of Brown v. Thomas, #14-1867, 771 F.3d 1001 (7th Cir. 2014).
An arrestee who appeared intoxicated
actively resisted officers both during the process of being arrested and when
taken into jail. He was handcuffed and pepper sprayed. Then, at the jail, when
he continued to resist, he was held down and a Taser was applied to him three
times in the stun mode. He was held face down, ceased breathing, and was taken
to a hospital where he died. A medical expert for the plaintiff expressed the
opinion that his cause of death was traumatic asphyxia due to compression of
his neck and back while being restrained. A federal appeals court ruled that
the defendant officers were entitled to qualified immunity when there was insufficient
evidence to support the strangulation theory, since only the expert's
conclusory opinion supported it. That opinion was contradicted by other
evidence, including the testimony of all the officers and two EMTs. Burdine v.
Sandusky County, Ohio, #12-3672, 2013 U.S. App. Lexis 7691, 2013 Fed. App.
376N, 2013 WL 1606906 (Unpub. 6th Cir.).
The dismissal of an arrestee's excessive force
claim on the basis that he could not prevail without offering expert witness
testimony on what level of force would have been reasonable was erroneous. In
the immediate case, the court concluded that there was nothing about the
particular use of force that required an expert witness to determine what a
reasonable officer would have done under the circumstances. The officers used a
Taser against the plaintiff twice in stun mode, as well as using direct
physical force while they engaged in a dispute with him over the alleged
violation of a child custody order and he brandished a rake. Allgoewer v. City
of Tracy, #C067636, 2012 Cal. App. Lexis 782 (3rd Dist.).
After officers arrested a man for drinking on a
public way, they found heroin and crack cocaine on him during a search incident
to arrest. Subsequently, after the drinking charge was dropped, a trial judge ruled
that there was no probable cause for the drug arrest. In a false arrest
lawsuit, a verdict for the defendant police officers was returned following
testimony by an assistant prosecutor that it was common for drug charges to be
dismissed if the amount of drugs found was relatively small. A federal appeals
court held that the plaintiff was entitled to a new trial, as that testimony
should not have been allowed without first disclosing that the assistant
prosecutor would be testifying as an expert witness and following the
procedures to present her evidence as such. Tribble v. Evangelides, #10-3262,
670 F.3d 753 (7th Cir. 2012).
A defendant's criminal conviction for driving
while intoxicated was overturned by the U.S. Supreme Court because the Confrontation
Clause of the Sixth Amendment does not allow the introduction of a forensic
report into evidence for the purpose of proving a fact in a criminal trial
using the in-court testimony of an analyst who is not the one who performed or
observed the test reported and who did not sign the certification contained in
the report. Bullcoming v. New Mexico, #09-10876, 2011 U.S. Lexis 4790.
An officer started following a group of young men on
bicycles. Two of the bicyclists then jumped a curb and rode away and the
officer activated his lights and followed them onto the grassy area of a
school's grounds. He allegedly saw one bicyclist pass a gun to the other. The
officer continued chasing the youth with the gun, and the chase ended when the
officer shot and killed him, believing that his own life was in danger. A jury
returned a verdict for the officer in an excessive force lawsuit. The appeals
court found that expert witness testimony that the youth did not have a gun in
his hand in seven images from the school's surveillance cameras was properly
excluded at trial. This opinion would have not aided the jury, but instead told
it what result to reach. Evidence that the youth was a gang member should have
been excluded, but its admission was harmless. Lee v. Andersen, #09-2771, 2010
U.S. App. Lexis 16702 (8th Cir.).
In a lawsuit claiming that officers used
excessive force during an arrest, causing injuries that required an arrestee's
hospitalization, the trial court did not commit reversible error in excluding the
testimony of a doctor who treated the arrestee's injuries at the hospital. The
trial court reasoned that the testimony would have amounted to expert testimony
on causation under Federal Rile of Civil Procedure 26(a)(2)(B), which requires
submission of an expert report. While the appeals court noted that the trial
court had failed to explain why the treating doctor's testimony would
constitute expert testimony, since it would only concern his diagnosis and
treatment of the injuries, any error was harmless. The doctor, who was not
employed or retained to provide testimony, did not have to provide an expert
report to testify. But it was plain from his deposition that he remembered
nothing other than what was recorded on the plaintiff's hospital chart. That chart
was allowed into evidence, and nurses provided first hand testimony concerning
the plaintiff's condition when he arrived at the hospital. Blameuser v.
Hasenfang, #08-1650, 2009 U.S. App. Lexis 20421 (Unpub. 7th Cir.).
In a lawsuit claiming that excessive force was
used against a suspect shot and killed by police, judgment for the defendants
was upheld on appeal, based in part on expert witness testimony indicating that
the suspect's conduct was consistent with trying to commit "suicide by cop."
The suspect's alleged resistance to the officers was made more probable by a
number of facts, including his prior lawsuits against the police department,
knowledge that his family might collect significant damages from a lawsuit if
he was killed by police, and his writing of "rap" music lyrics in
favor of the murder of police officers. The decedent had a criminal history,
including two attempted kidnappings that resulted in a high-speed chase, and
that indicated that he might receive a long sentence if prosecuted rather than
killed. The expert witness testimony concerning "suicide by cop"
satisfied legal standards for the admission of such evidence. The expert
testified on his knowledge of approximately ten peer-reviewed articles and four
other articles on the subject. The court found that the "suicide by
cop" theory seems to be "generally accepted" in the relevant
professional community. The literature indicates that persons attempting
"suicide by cop" frequently have deep resentment and hatred towards
police officers. Boyd v. C. & C. of San Francisco, #07-16993, 2009 U.S.
App. Lexis 17615 (9th Cir.).
A state trooper sued the manufacturer of a Taser,
claiming that it had failed to provide warnings of an alleged risk that
exposure to it could cause fractures, resulting in him suffering a fractured
spine during a training exercise. A trial court did not abuse its discretion in
excluding expert witness testimony by the trooper's treating physician that his
injury was caused by exposure to the Taser. The doctor's opinion regarding the
cause of the injury was "unreliable" because a spinal compression
fracture is not the type of injury that ordinarily results from a Taser shock,
and the doctor did not show that his opinion that such a shock could cause this
kind of injury was testable. In the absence of admissible expert medical
witness testimony on causation, the defendant manufacturer was entitled to
summary judgment. Wilson v. Taser International, Inc., No. 08-13810, 2008 U.S.
App. Lexis 25252 (Unpub. 11th Cir.).
In lawsuit claiming that officers used excessive
force, including a chokehold, in attempting to place a man under arrest,
resulting in his death, trial court found not to have abused its discretion in
barring expert testimony concerning excessive force. The Plaintiff sought to
introduce such testimony by a police department Office of Professional
Standards inspector and a police sergeant who investigated the claim of
excessive force during the arrest, and to ask them whether the officer used
excessive force or violated departmental General Orders, policies or
procedures. The appeals court upheld a trial court ruling that the
"probative value" of such evidence was "substantially
outweighed" by the danger of unfair prejudice, and that it would not assist
the jury in reaching a decision, but rather would cause "confusion."
Court also upholds ruling barring evidence concerning the department's General
Orders on the appropriate use of force, since the issue of whether or not the
officer violated a departmental regulation was different from whether his use
of force was unconstitutional. Thompson v. City of Chicago, No. 04-3177, 2006
U.S. App. Lexis 31138 (7th Cir. December 20, 2006) [N/R]
It was no abuse of discretion to exclude an
expert witness's testimony in an excessive force case involving a police
shooting when the court found that the expert's opinion that a reasonable
officer would have been able to tell that the plaintiff was not holding a gun,
bur rather a cell phone, had "no basis." Hickey v. City of New York,
No. 05-1933-CV, 173 Fed. Appx. 893 (2nd Cir. 2006). [N/R]
Court did not abuse its discretion in excluding
plaintiff's expert witness in a lawsuit over state trooper's alleged excessive
use of deadly force against her son when she failed, for approximately a year,
to disclose requested information about his qualifications, publications, and
prior testimony in other cases. Appeals court also upholds summary judgment for
state troopers who shot and killed suspect, who had fired at them and at other
police officers, and who was sought under two arrest warrants and an order for
a mental health examination. Carr v. Deeds, No. 05-1472, 05-2186, 2006 U.S.
App. Lexis 17461 (4th Cir.). [2006 LR Sep]
Experts in the use of deadly force could not
provide testimony based on medical evidence or opinions because this was found
by the court to be outside the area of their expertise, and there was no
showing that such medical reports were the kind of materials that excessive
force experts relied on. Richman v. Sheahan, No. 98C7350, 415 F. Supp. 2d 929
(N.D. Ill. 2006). [N/R]
Trial judge did not abuse his discretion in
excluding the testimony of a medical expert in a detainee's lawsuit seeking
damages for eye injuries allegedly caused by a police officer during the
detention. The plaintiff failed to file the expert's report in a timely manner,
and the report failed to provide a complete statement of the basis and reasons
for the expert's opinion or state his qualification. Further, admission of the
testimony at a late date had to be excluded to avoid prejudice because
admitting the testimony and giving the defendant officer time to depose the
expert would have resulted in the postponement of the trial. Brooks v. Price,
No. 03-4608, 121 Fed. Appx. 961 (3rd Cir. 2005). [N/R]
Erroneous admission of expert witness testimony
which commented on the credibility of police officers involved in shooting
required a new trial in case where jury returned a verdict against a suspect
shot and paralyzed from the waist down. Nimely v. City of New York, No.
04-3240, 2005 U.S. App. Lexis 12712 (2d Cir.). [2005 LR Aug]
Expert witness's proposed flat rate fee for a
deposition at his office in a federal civil rights lawsuit concerning alleged
excessive use of force was "exorbitant and unreasonable," without an
explanation as to why he blocked out a full day for a deposition, which might
be a short one. Additionally, the court finds that the issues on which he was
to render an opinion were not complex, and that the flat fee would amount to
over $600 per hour. A reasonable fee, the court rules, would be $250 per hour.
Massasoit v. Carter, No. 1:04CV00151, 227 F.R.D. 264 (M.D.N.C. 2005). [N/R]
Jury could properly find that officer's use of
police dog to detain suspect following high-speed pursuit of car was proper
when he then believed she was a burglary suspect and was attempting to flee
arrest. Exclusion of testimony of expert witness was not an abuse of discretion
when his testimony would be irrelevant to whether the officer acted in a
reasonable manner. Marquez v. City of Albuquerque, No. 02-2294, 2005 U.S. App.
Lexis 3299(10th Cir.). [2005 LR Apr]
A Florida Highway Patrol traffic homicide
investigator was properly allowed to testify as an expert witness in accident
reconstruction in a wrongful death lawsuit brought by a deputy sheriff's estate
against the owner and operator of a truck that struck the deputy. He testified,
based on his work at the accident scene, that the deputy pulled out into the highway
when the truck was so close that the truck driver did not have time to avoid
the collision. The court rejected the plaintiff's argument that the
investigator should have been barred as an expert because a jury would give a
law enforcement officer's testimony undue weight. "When a law enforcement
officer has been properly qualified as an expert, the officer may testify to
matters that are within the officer's expertise." Alexander v. Penske
Logistics, Inc., No. 3D02-2793, 867 So. 2d 418 (Fla. App. 3d Dist. 2003),
rehearing denied, 2004. [N/R]
Trial court was not required to make a detailed
analysis of the reliability of psychiatric expert testimony, and it could take
judicial notice of the admissibility of expert testimony in "well-known
areas" of accepted expertise, such as psychiatry. Psychiatrist's
testimony, therefore, that an arrestee falsified or exaggerated some of her
symptoms stemming from force used during her arrest was admissible. Judgment in
favor of defendant city and officers upheld. Samaniego v. City of Kodiak, No.
S-10378, 80 P.3d 216 (Alaska 2003). [N/R]
Psychiatrists were qualified to testify as expert
witnesses as to the psychological impact on juveniles attending a basketball
tournament of allegedly unlawful detentions and searches of them by police
officers. Since psychiatrists did not need forensic training or
board-certification in child psychology to treat juveniles, their lack of these
qualifications did not bar them from testifying. Psychiatric team leader who
relied on data collected by a team member and did not himself personally
examine the civil rights plaintiffs could testify as to his opinion. Williams
v. Brown, 244 F. Supp. 2d 965 (N.D. Ill. 2003). [N/R]
Federal appeals court upholds criminal conviction of
officer for violating suspect's civil rights by allegedly releasing police dog
to bite him without any warning while he had his hands up, was not resisting
police orders, and had not made any sudden moves. Trial court did not abuse its
discretion in admitting evidence of officer's alleged subsequent involvement in
the misuse of police dogs, or in allowing the government to present rebuttal
expert witness testimony that the officer's use of her dog in the immediate
case was improper. U.S.A. v. Mohr, #01-5002, 318 F.3d 613 (4th Cir. 2003).
[2003 LR Apr]
No hearing was required to resolve a plaintiff
arrestee's objections to the admission of an expert psychiatrist's report and
testimony about his mental state at the time of his arrest when the basis for
the objection was disagreement with disputed factual evidence on which the
expert relied. The plaintiff, who claimed excessive use of force during the
arrest, could explore, during cross-examination, the reliance that the expert
put on the disputed evidence in drawing his conclusion that the plaintiff had
been psychotic at the time so that his perception of events were impaired and
unreliable. He could also argue to the jury that, if it rejected the underlying
factual premises of the expert's report, it should also reject the expert's
opinion. Walker v. Gordon, #01-4106, 46 Fed. Appx. 691 (3rd Cir. 2002). [N/R]
Instructors at college's police academy, who had
testified against police as expert witnesses in an excessive force case had no
constitutionally protected property interest which was violated by chiefs of
police and sheriffs allegedly seeking non-renewal of their contractors in
retaliation for the testimony. Police chiefs and sheriffs were not, however,
entitled to qualified immunity on instructors' claim that they kept their
personnel out of the instructors' classes, in violation of their First
Amendment rights, in retaliation. Plaintiffs also asserted a valid claim under
Texas state law for tortious interference with instructors' contract
relationship with the academy, and the defendants were not entitled to official
immunity from that claim. Kinney v. Weaver, #00-40557, 301 F.3d 253 (5th Cir.
2002).[N/R]
Trial judge rules, in excessive force case
involving off-duty officer, that expert witness could provide testimony
concerning the proper police procedures to be followed and how and when an
officer should decide to go from off-duty to on-duty status, but could not
state a specific opinion about the specific facts of the case. The jury, the
judge ruled, could determine on its own whether or not the officer kicked the
plaintiff in the head. McCloughan v. City of Springfield, 208 F.R.D. 236 (C.D.
Ill. 2002). [2002 LR Sep]
The trial court did not abuse its discretion in
allowing expert witness testimony on the ultimate issue in the case of whether
a deputy's use of force was proper against a Vietnam veteran who was fatally
shot by a deputy responding to a domestic violence call. Crawford v. Bundick,
No. 01-2864, 32 Fed. Appx. 785 (8th Cir. 2002). [N/R]
Expert witness testimony that officers should not
have shot a fleeing suspect was admissible in excessive force lawsuit, even
though the question of whether the officers actually saw the suspect possessing
a weapon did not determine whether they could use deadly force. Expert's
opinion could help the jury decide whether the officers' use of force was
reasonable under the circumstances. Wilson v. City of Des Moines, 160 F. Supp.
2d 1038 (S.D. Iowa 2001). [N/R]
279:38 Expert witness testimony on
"hedonic damages" (the enjoyment value of human life) barred by trial
court in lawsuit over police shooting of individual. Ayers v. Robinson, 887
F.Supp. 1049 (N.D.Ill. 1995).
Federal rules of civil procedure allow admission
of scientific evidence/expert testimony regardless of whether Frye
"general acceptance" test is met; federal trial judge must ensure
that expert testimony is relevant and is based on a "reliable"
foundation Daubert v. Merrell Dow Pharmaceuticals, Inc, 113 S.Ct. 2786 (1993).
Federal trial court bars expert testimony on the
reasonableness of officer's use of force; holds that such testimony "would
interfere inappropriately" with jury's judgment process Wells v. Smith,
778 F.Supp. 7 (D.Md 1991).
Police expert's testimony on proper level of
force to be
used in disarming suspects was properly admitted
in excessive force lawsuit, although plaintiff had not been armed Kladis v.
Brezek, 823 F.2d 1014 (7th Cir. 1987).
Defendant officers entitled to advance knowledge
of substance of expert witness testimony to be offered against them at trial
Williams v. McNamara, 118 F.R.D. 294 (D. Mass 1988).
Legal expert should not have been allowed to
testify as to what legal conclusions he would draw from evidence in civil rights
case. Spect v. Jensen, 853 F.2d 805 (10th Cir. 1988), en banc, reversing 832
F.2d 1516 (10th Cir. 1987).