United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE.
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).
Procedural History and Relevant
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.).
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
part of his case, Patel wishes to use two retained experts,
Dr. Cummings and Wiley. (Doc. 118); (Doc. 123-1).
Standard for the Admissibility of Expert Testimony
General Requirements - Judge as Gatekeeper
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
(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).
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)).
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.
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
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).
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).
The Eleventh Circuit Test for Admissibility
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
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.
Prong One: The Expert Must Be Qualified To Testify to the
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.
Prong Two: The Expert's Opinion Must Be Sufficiently
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
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.
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.
Prong Three: The Expert's Opinion Must Be
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 [a]).
Lack of Necessity of a Daubert Hearing
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.
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.
offers the opinions of Dr. Cummings into evidence in this
case. Dr. Cummings has offered an expert report. (Doc. 84-3,
the “Cummings Report”). 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
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).
Dr. Cummings's Qualifications
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. (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.).
Dr. Cummings's Opinions
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
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.