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Potter v. City of Dothan

United States District Court, M.D. Alabama, Southern Division

September 6, 2018

DAVID POTTER, Plaintiff,
v.
CITY OF DOTHAN, ALABAMA, et al ., Defendants.

          MEMORANDUM OPINION AND ORDER

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE

         Pending before the court are the Defendants' Motion to Exclude the Opinion of Plaintiff's Expert Charles Drago (Doc. 61) and Plaintiff's Motion to Strike Exhibit F to Defendants' Motion to Exclude the Opinion of Plaintiff Expert Charles Drago. Doc. 66.

         Potter has secured the expert opinion of Charles W. Drago of Drago Professional Consultants, LLC for use in this case. Drago offers Opinion A regarding the use of excessive force and Opinion B regarding the efficacy of the investigation of complaints by the Dothan Police Department. The defendants have moved to exclude Drago's opinions. They do not challenge Drago's qualifications but state that portions of Drago's report are based upon insufficient facts which render his opinion unreliable. Potter, in turn, has moved to strike some of the documents attached to the defendant's motion to exclude this testimony.

         I. STANDARD OF REVIEW

         The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which provides:

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.

         Rule 702, as interpreted by the Supreme Court, “assign[s] to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587 (1993). This “gatekeeping function is important to ensure that speculative, unreliable expert testimony does not reach the jury under the mantle of reliability that accompanies the appellation expert testimony.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (quotation and citation omitted).

         II. DISCUSSION

         In determining the admissibility of expert testimony under Rule 702, this court must conduct a rigorous three-part inquiry, considering whether: (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 assists the trier of fact through the application of scientific, technical, or specialized expertise, to understand the evidence, or to determine a fact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998).

         In determining reliability, the court may ask: “(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community.” McCorvey v. Baxter Healthcare Corp.,298 F.3d 1253, 1256 (11th Cir. 2002). Other factors which may be relevant to a determination of reliability are (1) whether the expert has developed his opinions expressly for the purpose of testifying, (2) whether there is an analytical gap between an accepted premise and a conclusion, (3) the expert's consideration of alternative ...


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