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Patel v. City of Madison

United States District Court, N.D. Alabama, Northeastern Division

April 19, 2018




         I. Introduction

         This case comes before the Court on Defendant City of Madison's and Defendant Eric Parker's (collectively “Defendants”) Joint Motions To Exclude Opinion Testimony. Defendants have moved to exclude the testimony of the following experts:

• Dr. Jeremy R. Cummings (“Dr. Cummings”), the “Cummings Motion” (Doc. 95);
• Jerry Wiley (“Wiley”), the “Wiley Motion.” (Doc. 111).

         II. Procedural History and Relevant Background[1]

         Plaintiff Sureshbhai Patel (“Patel”) initiated this lawsuit against the City of Madison and Parker on February 12, 2015. (Doc. 1). The incident giving rise to this lawsuit is alleged to have taken place on February 6, 2015. (Doc. 2 at 1). Patel claims that he was merely taking a morning walk in his son's neighborhood when Officer Parker, a police officer employed by the City of Madison, illegally stopped him. (Id. 1-3). Patel claims that the “stop was without reasonable suspicion or probable cause.” (Id. at 3). During the course of the stop, Parker searched Patel for weapons. (Id.). None were found, but Patel claims that “[Parker] restrained [his] arms and slammed [him] face first into the ground.” (Id.). It is this use of force that Patel claims was “unnecessary and excessive.” (Id.). Patel says he suffered significant injuries from this event, including partial paralyzation. (Id.).

         Patel has asserted the following claims: illegal seizure under 42 U.S.C. § 1983, unlawful search under 42 U.S.C. § 1983, excessive force under 42 U.S.C. § 1983, illegal search/assault under state law, false arrest/false imprisonment under state law, and assault and battery/excessive force under state law. (Id. at 4-7).

         As a part of his case, Patel wishes to use two retained experts, Dr. Cummings and Wiley. (Doc. 118); (Doc. 123-1).

         III. Standard for the Admissibility of Expert Testimony

         A. General Requirements - Judge as Gatekeeper

         Regarding expert testimony, the Federal Rules of Evidence provide that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702 (2011). Rule 702 must be read in conjunction with three seminal decisions by the Supreme Court related to expert testimony: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

         All rulings on Daubert motions are reviewed under an abuse of discretion standard. See, e.g., Joiner, 522 U.S. at 141, 118 S.Ct. at 517 (“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”). “An abuse of discretion can occur where the district court applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment.” United States v. Estelan, 156 Fed.Appx. 185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th Cir.2005)).

         In Daubert, the Supreme Court established that district judges act as “gatekeepers” for expert testimony. 509 U.S. at 592-93, 113 S.Ct. at 2796. The district court judge must assess the proffered testimony and make a preliminary determination about the scientific validity of the expert's reasoning and methodology. Id.

         As another district court in this Circuit has stated,

Federal Rule of Evidence 702, read together with the trilogy of Supreme Court opinions that led to the Rule's revision in 2011, compels the district courts to perform a “gatekeeping” function when determining the admissibility of expert scientific and technical evidence. See, e.g., United States v. Abreu, 406 F.3d 1304, 1306 (11th Cir. 2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)). “This function inherently requires the trial court to conduct an exacting analysis of the foundations of expert opinions to ensure they meet the standards for admissibility under Rule 702.” Id. (internal quotation omitted).

Broussard-Wadkins v. Maples, 895 F.Supp.2d 1159, 1165 (N.D. Ala. 2012), aff'd sub nom. Broussard v. Maples, 535 Fed.Appx. 825 (11th Cir. 2013).

         The burden under Rule 702 rests squarely with the proponent of the expert witness:

The proponent of the expert testimony carries a substantial burden under Rule 702. “The burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.1999) (citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786). Thus, the proponent must demonstrate that the witness is qualified to testify competently, that his opinions are based on sound methodology, and that his testimony will be helpful to the trier of fact. See, e.g., Frazier, 387 F.3d at 1260 (“The burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion . . . .”); McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002); Maiz, 253 F.3d at 664.

See Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1107 (11th Cir. 2005).

         B. The Eleventh Circuit Test for Admissibility

         The Eleventh Circuit has established a three-part inquiry for district courts to follow in performing their gatekeeper role. For evidence to be admissible under Rule 702, the district court must find that:

(1) the expert is qualified to testify competently regarding the matters he intends to address;
(2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and
(3) the testimony [will] assist[ ] the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Tampa Bay Water v. HDR Engineering, Inc., 731 F.3d 1171, 1183 (11th Cir. 2013). The party offering the testimony must meet each prong by a preponderance of the evidence.

         1. Prong One: The Expert Must Be Qualified To Testify to the Relevant Issue

         To meet Prong One, a party must show that the expert has sufficient “knowledge, skill, experience, training, or education” to form a reliable opinion about the relevant issue. Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193 (11th Cir. 2010). Experience in a particular field is not enough to qualify an expert; the expert must have experience with the issue before the court. See Id. at 1201.

         2. Prong Two: The Expert's Opinion Must Be Sufficiently Reliable

         To meet Prong Two, the party proffering the expert's testimony must show that the expert's opinion is sufficiently reliable. A district court has substantial discretion in deciding how to test the reliability of an expert's testimony. Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005). “This deferential abuse of discretion standard is applied stringently, even if a decision on expert testimony is ‘outcome determinative.'” Chapman v. Proctor & Gamble Distrib., LLC, 766 F.3d 1296 (11th Cir. 2014) (citing Joiner, 522 U.S. at 142-43, 118 S.Ct. at 517).

         Pursuant to the second Daubert prong, the court should consider the following factors: “(1) whether the expert's methodology can be tested; (2) whether the expert's scientific technique has been subjected to peer review and publication; (3) whether the method has a known rate of error; and (4) whether the technique is generally accepted by the scientific community.” Rink, 400 F.3d at 1292 (citing Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)). However, these factors are not exhaustive and a court “should consider any additional factors that may advance its Rule 702 analysis.” Quiet Tech, 326 F.3d at 1341.

         “The same criteria that are used to assess the reliability of a scientific opinion may be used to evaluate the reliability of non-scientific, experience-based testimony.” Frazier, 387 F.3d at 1262.

         3. Prong Three: The Expert's Opinion Must Be Helpful

         “The final requirement for admissibility of expert testimony under Rule 702 is that it assist the trier of fact.” Frazier, 387 F.3d 1262. That means that “ expert testimony is admissible if it concerns matters that are beyond the understanding of the average lay person.” Id. (citing United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985)). “Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.” Id. at 1262-63 (citing 4 Weinstein's Federal Evidence § 702.03[2] [a]).

         C. Lack of Necessity of a Daubert Hearing

         Whether a Daubert hearing is necessary is a decision within the sound discretion of a district court. Cook, 402 F.3d at 1113. The abuse of discretion standard “applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion . . . [i]ndeed, the Rules seek to avoid unjustifiable expense and delay as part of their search for truth and the just determination of proceedings.” Kumho, 526 U.S. at 139, 152-53 (internal citations omitted). There is no requirement that a Daubert hearing always be held. See United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001); Frazier, 387 F.3d at 1264.

         In this case, Patel requested a hearing, merely arguing (without specificity) that “some of the issues raised by [D]efendants are not straightforward.” (Doc. 118 at 3); (Doc. 123-1 at 5). The Court disagrees. After extensively reviewing the parties' briefs and the record, the Court determines that a Daubert hearing is not necessary.

         IV. Analysis

         A. Dr. Cummings

         Patel offers the opinions of Dr. Cummings into evidence in this case. Dr. Cummings has offered an expert report. (Doc. 84-3, the “Cummings Report”).[2] Dr. Cummings also offered a supplemental expert report and declarations; however, both of those documents were stricken in separate orders. (Doc. 85) (striking the supplemental report); (Doc. 132) (striking the supplemental declarations). Dr. Cummings was deposed on May 17, 2017, and the deposition transcript was filed into the record. (Doc. 101-16, 101-17, the “Cummings Deposition”).[3]

         On September 8, 2017, Defendants filed their Joint Motion To Exclude Dr. Cummings's testimony and brief in support. (Doc. 95); (Doc. 96). Patel responded on October 2, 2017. (Doc. 118). Defendants replied on November 15, 2017. (Doc. 133). Defendants challenge Dr. Cummings's “qualifications and methods” under Federal Rule of Evidence 702. (Doc. 95 at 4-5) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)). Defendants move to exclude this testimony “from consideration on summary judgment or introduction at trial.” (Doc. 95).

         i. Dr. Cummings's Qualifications

         Dr. Cummings has been offered by Patel to give his calculations regarding Patel's head's velocity, “the biomechanical aspects of the takedown, ” and to assist the jury with understanding what they would see on the video. (Doc. 118 at 1-3). Dr. Cummings is a two-time graduate of the University of North Carolina at Chapel Hill. (Cummings Report at 49). He has a Ph.D. in biomedical engineering and a B.S. in applied and materials science with minors in physics and chemistry. (Id.). Among other jobs, he has worked as a post-doctoral fellow, biomedical engineer, accident reconstructionist, and most recently as the principal consulting scientist and biomedical engineer at Cummings Scientific, LLC. (Id.). He claims that his work is split close to evenly for plaintiffs and defendants. (Id.). Among his skills he includes injury causation, biomechanics, computer based accident reconstructions and simulations, and photogrammetry.[4] (Id. at 50-51). He claims membership in the Biomedical Engineering Society, American Society of Biomechanics, American Society of Safety Engineers, Society of Automotive Engineers, and the Association for the Advancement of Automotive Medicine. (Id. at 51). He has participated in numerous conferences, published writings, and given talks. (Id. at 51-54). Finally, his Rule 26 list names numerous cases in which he has participated as an expert within the last four years. (Id. at 53-62). At his deposition, he estimated that he has been deposed “probably about a hundred times.” (Cummings Deposition at 6). He also estimated that he has testified in court “50 times or so.” (Id.).

         ii. Dr. Cummings's Opinions

         In the Cummings Report, Dr. Cummings offers the following opinions:

1) Mr. Patel's neck underwent an extension injury as his head was slammed into the ground.
2) Mr. Patel was 57 years of age at the time of this incident.
3) A 57 year old male would require a torque of approximately 20 N*m to cause the extension type injury to C6-C7 that Mr. Patel suffered in this event.
4) A 57 year old male would require a torque of approximately 17.7 N*m to cause the extension type injury to C5-C6 that Mr. ...

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