United States District Court, E.D. Virginia, Richmond Division
JOTAYNUN LEE, as Administrator of the Estate of Jataynun Trayvon Fleming, Deceased, as Next Friend of J.F., K.F., N.T., N.K., and J.W., Minor Children of Jataynun Trayvon Fleming, Deceased, and Individually, Plaintiff,
CITY OF RICHMOND, VIRGINIA, et. al., Defendants.
ROBERT E. PAYNE, Senior District Judge.
This matter is before the Court on Defendant Bevington's MOTION TO EXCLUDE PLAINTIFF'S EXPERT WITNESS DR. PHILIP P. HAYDEN (Docket No. 107), DETECTIVE BEVINGTON'S MOTION TO EXCLUDE DR. KENNETH OKAFOR (Docket No. 109), DETECTIVE BEVINGTON'S MOTION TO EXCLUDE CHAD L. STALLER & JAMES MARKHAM (Docket No. 111), DETECTIVE BEVINGTON'S MOTION TO EXCLUDE DR. ALI Z. HAMELI (Docket No. 113), Defendant Moore's MOTION TO EXCLUDE CHAD L. STALLER AND JAMES MARKHAM (Docket No. 115), Defendant Moore's MOTION TO EXCLUDE DR. KENNETH OKAFOR (Docket No. 117), Defendant Moore's MOTION TO EXCLUDE DR. ALI Z. HAMELI (Docket No. 119), and Defendant Moore's MOTION TO EXCLUDE DR. PHILIP P. HAYDEN (Docket No. 121). For the reasons set forth below, the motions are granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
The facts, which are derived from the Amended Complaint (Docket No. 38), are alleged to be as set forth below. At approximately 3:00 p.m. on July 14, 2010, unidentified officers of the Richmond Police Department ("RPD") arrived at a private residence on Beaufont Hill Drive in Richmond, Virginia, to arrest Jataynun Trayvon Fleming ("Fleming") on a warrant for robbery accomplished by use of a firearm and a homicide. The officers were armed and dressed in a manner consistent with that conventionally associated with members of the RPD's SWAT team.
Fleming, who was lawfully inside the residence, retreated to an upstairs bathroom and barricaded himself therein. Also present in the residence was Fleming's son and his son's mother, who were escorted outside by RPD personnel. Fleming's father, the plaintiff Jotayun Lee ("Lee"), arrived at the residence and informed the officers that Fleming did not have a firearm. And, indeed, it turned out that Fleming did not have a firearm in the bathroom or elsewhere inside the residence. Lee requested that the RPD officers, including defendants Bevington and Moore, allow him to enter the residence and convince Fleming to surrender peacefully; Lee was not allowed to do so.
After considerable, but unsuccessful, efforts to induce Fleming to leave the bathroom and surrender, the RPD officers threw a "tear gas canister" into the bathroom where Fleming had barricaded himself. Approximately two minutes later, Fleming came out of the bathroom while exhibiting symptoms common to exposure to tear gas (such as coughing and stumbling). The Amended Complaint alleges that Fleming fell to the floor outside the bathroom. At that point, Bevington and Moore fired a total of nine rounds at Fleming, who was struck multiple times in his hands, arms, torso, and chest. Fleming subsequently died. A forensic investigation revealed several bullet holes in the floor near the body, but no bullet holes in the walls. There were also bullet holes in the ceiling of the room below the one where the shooting occurred. Some of the bullets were recovered from that room and some were found in Fleming's body.
In response to questions from RPD investigators, Bevington and Moore claimed that Fleming had emerged from the bathroom, with his arms extended, and brandishing what they thought was a weapon towards the officers. Moore reported that he had fired one round at Fleming while Fleming was standing and that, when Fleming failed to comply with verbal commands, additional rounds were fired by Bevington. Bevington reported that he had only fired at Fleming while Fleming was standing and stopped firing after Fleming fell to the floor. Bevington subsequently claimed that he had, in fact, fired at Fleming again when it appeared that Fleming was attempting to stand up. There was no firearm recovered from Fleming's person or the residence.
In the Amended Complaint, Lee asserted three claims, all under 42 U.S.C. § 1983, and named Moore, Bevington, the City of Richmond and several John Does as defendants. On March 19, 2013, the City of Richmond was dismissed as a defendant in the case. (Docket No. 77). Subsequently, Counts II and III of the Amended Complaint were dismissed as to the defendants Bevington and Moore. (Docket Nos. 79 and 80). Therefore, the sole remaining claim against Bevington and Moore is Count I, wherein Lee alleges a claim against each of them for an unlawful use of deadly force in violation of the Fourth Amendment of the Unites States Constitution.
As part of his case, the Plaintiff intends to use evidence proffered in the reports of five expert witnesses: Philip P. Hayden (Ed.D); Kenneth C. Okafor (Ph.D); Ali Z. Hameli (M.D., P.A.); Chad L. Staller (J.D., M.B.A., M.A.C.) and James Markham (Ph.D.; J.D., CPCU). The experts submitted reports and some were deposed.
Bevington and Moore have moved to exclude the testimony of all experts, some in whole, some in part. After outlining the applicable legal principles which apply to all of the motions, each will be considered in turn.
All of these motions seek to exclude the testimony of expert witnesses proffered by the Plaintiff. Federal Rule of Evidence 702 states 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 tier 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
The current version of the rule, together with Rule 104(a), incorporates and codifies the standards for admissibility of expert testimony that were set forth in Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993), and its judicial progeny. As Daubert announced, the district court "must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert , 509 U.S. at 589. The requirement that the testimony of an expert must pertain to "scientific, technical or specialized knowledge" is intended to establish "a standard of evidentiary reliability." Id. at 590. The requirement that the evidence of testimony will assist the trier of the fact to either understand the evidence or to determine a fact in issue are conditions that go to the question of relevance. Id. at 591. Another aspect of relevance "is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Id . That requirement is sometimes referred to as "fit, " and "fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." Id.
In Daubert, the Supreme Court also provided a non-exclusive checklist of factors that a trial court can consider when evaluating the relevance and reliability of a proffer of expert scientific testimony:
(1) Whether a purportedly scientific theory or technique has been subjected to empirical testing and verification;
(2) Whether the theory of technique has been subjected to peer review and publication;
(3) the known or potential rate of error associated with the theory or technique;
(4) the level of general acceptance of theory or technique within the relevant scientific community.
Id. at 593-94. Finally, Daubert provides a reminder that that relevance and reliable expert testimony can still be excluded pursuant to Rule 403 if the probative value of the testimony is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Id. at 595.
In Kumho, the Supreme Court applied the basic principles that animated its decision in Daubert to testimony that is not scientific in nature but rather based on the expert's knowledge and experience. In Kumho, the Court held that the gatekeeping responsibility, to assure the reliability and relevance of expert testimony, applies with equal force to non-scientific evidence and, indeed, to all expert testimony. Kumho , 526 U.S. 149. To that end, the Court, in Kumho, held that the factors outlined in Daubert can be pertinent to the gatekeeping function. The Court made clear also that those factors constitute a non-exclusive recitation of matters to be considered in determining the reliability of expert testimony. Id. at 150.
The Daubert test's gatekeeping requirement serves to ensure that the expert witness in question employs the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Kumho , 526 U.S. at 152. When a witness testifies on the basis of experience, "the district court must... require an experiential witness to explain how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts.'" Peters-Martin v. Navistar Int'l Trans. Corp., 410 F.App'x 612 (4th Cir. 2011) (quoting United States v. Wilson , 484 F.3d 267 (4th Cir. 2007) (citations omitted)).
The foregoing principles inform the resolution of the motions to exclude expert testimony by the Plaintiffs' expert witnesses.
1. Motions To Exclude Dr. Philip Hayden (Docket Nos. 107, 121)
Dr. Philip P. Hayden tendered two expert reports (one on March 19, 2013; the other on May 28, 2013). According to the Plaintiff's brief, Hayden is to testify as an "expert on use of force, police practices, effective tear gas on humans, firearms and bullet paths." Id. at 2. In Hayden's March report, he expresses fourteen separate opinions. In the May report, he expresses six opinions, many of which are the same as expressed in the March report.
The motions filed by Bevington and Moore seek to exclude all of the opinions to which Hayden proposes to testify. The Plaintiff filed a fairly full brief in response to the motion filed by Bevington and then adopted that brief in response to the motion filed by Moore. (See Docket Nos. 128 and 132).
In all but one instance (the use of force and police practices), Bevington and Moore contend that Hayden is not qualified. In response to the motions, the Plaintiff defends the competence of Hayden as an expert on the ground that he testifies as an expert on the basis of his experience in each category for which he is proffered as an expert, but then defends only the following opinions:
Dr. Hayden's testimony on the effect of gas should not be excluded
Dr. Hayden is competent to opine on the shootings scene and bullet path reconstruction
There is no disagreement by defendants' expert with Dr. Hayden's methodology
Dr. Hayden is qualified to opine on the use of force & SWAT police practices
Therefore, this opinion will attempt to discuss the opinions at issue by hewing closely to the points made in the Plaintiff's brief about the four topics that the Plaintiff does address.
A. Hayden's Qualifications To Testify About The Effect Of Tear Gas On Fleming
Bevington and Moore both argue that Hayden is not qualified to testify about the effect that tear gas had on Fleming. Both note that Hayden is not a toxicologist and has never qualified as an expert in toxicology. Bevington also contends that Hayden has no medical training or experience that would permit him to testify whether, or to what extent, Fleming was affected by tear gas. Moore makes the same argument.
The Plaintiff's brief on the topic consists of one sentence that says: "[t]he basis for Dr. Hayden's testimony on the effect of chemical tear gas on Fleming is his personal experience as well as the research which he conducted while with the FBI." (Docket No. 128, pp. 13-14). However, the record reflects that Hayden has never studied tear gas or any factors that might determine a person's reaction to it. Although he has read some FBI and online materials about tear gas, he said at his deposition that he did not rely on them in forming his opinions. To the contrary, Hayden said that he based his opinions on his observations of ...