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NIEBUR v. TOWN OF CICERO

March 23, 2001

DAVID R. NIEBUR AND PHILLIP T. BUE, PLAINTIFFS,
V.
TOWN OF CICERO, BETTY LOREN-MALTESE, INDIVIDUALLY, MERRICK SCOTT RAYLE, INDIVIDUALLY, THE BOARD OF FIRE, POLICE, AND PUBLIC SAFETY COMMISSIONERS OF THE TOWN OF CICERO, AND CLARENCE GROSS, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Bucklo, District Judge.

MEMORANDUM OPINION AND ORDER

I here consider the admissibility of expert testimony by a former big-city police superintendent as to the reasonableness of the judgment exercised by David Niebur in his capacity as Police Chief of the Town of Cicero, Illinois, and by Phillip T. Bue, Deputy Police Chief. In April 1998, Niebur and Bue began to cooperate with federal authorities who were investigating public corruption in Cicero, including the relations of Town officials to Ram Recovery, Inc., a towing firm under contract to the Town that was apparently stealing and selling some of the cars it towed. The Cicero Town counsel, Scott Rayle, cleared Town officials of wrongdoing. Meanwhile, Betty Loren-Maltese, President of the Town Council, suspended Niebur and Bue when they refused to answer questions about their grand jury testimony, and Rayle then asked the Police Board to fire them, which it did that fall. They sued under various constitutional and state law causes of action.*fn1 The defendants argue that they were fired for legitimate reasons, and now offer the expert testimony of former New York City Police Commissioner Patrick Murphy in support of that claim. The plaintiffs ask me to bar Murphy's testimony, and I do so.

Rule 702, governing the admissibility of expert testimony, now reads:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

This rule essentially codifies the principles enunciated in the line of cases following Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), requiring that expert testimony must be reliable to be admissible. The current version explicitly adds three new statutory requirements: sufficient facts and data, reliable methodology, and reliable application of the methodology. There is a two step procedure for evaluating expert testimony under Rule 702. United States v. Hall, 165 F.3d 1095, 1102 (7th Cir. 1999). First, I must "consider whether the testimony has been subjected to the scientific method; [I] must rule out `subjective belief or unsupported speculation.'" Id. (citation omitted). The Daubert standard applies to all expert testimony, "whether it relates to areas of traditional scientific competence or whether [as here] it is founded on engineering principles or other technical or specialized expertise." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). My focus is on "an examination of the expert's methodology. The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact. . . ." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

Second, I must "determine whether the evidence or testimony assists the trier of fact in understanding the evidence or in determining a fact in issue." Hall, 165 F.3d at 1102. If the testimony would not be helpful, I may not admit it even if it is produced by a reliable method and based on sufficient facts and data. Here, Murphy's testimony passes none of the Rule 702 hurdles.

The issue before me involves specialized knowledge rather than scientific expertise. Murphy has published a small number of scholarly articles on policing and served briefly as professor at John Jay College of Criminal Justice on New York (1985-87). However, his main claim to expertise is his extensive experience rather than his scholarly credentials. So far so good: Rule 702 "specifically contemplates the admission of testimony by experts whose knowledge is based on experience." Walker v. Soo Line Ry. Co. 208 F.3d 581, 591 (7th Cir. 2000); Fed R. Civ. P. 702 (An expert may be qualified by "knowledge, skill, experience, training, or education."). Murphy was, among other things, Police Commissioner of New York City (1970-73) and Detroit (1969-70), Public Safety Director in Washington D.C. (1967-68), and Police Chief of Syracuse, N.Y. (1962-64). Since retiring from active duty, he has been President of the Police Foundation (1973-85); most recently he has been the Director of the American Police Association of College Graduate Officers and Associates. He himself received his B.A. from St. John's University and a Master of Public Administration from City College of New York. He is a graduate of the FBI National Academy in Quantico, Virginia. He is qualified to offer an expert opinion on various technical aspects of policing. However, nothing in his education or experience suggests that he is especially qualified to pronounce on political philosophy, a point the relevance of which will become unfortunately clear. In addition, Murphy offers no evidence that he is especially qualified to discuss the particular issue he addresses here, whether Niebur and Bue acted properly in investigating their elected superiors whom they suspected of corruption and other criminal activity.

My "reliability analysis does not end with its conclusion that an expert is qualified to testify about a given matter." Even "`[a] supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method.'" Smith, 215 F.3d at 718. An expert may not "offer[] the court his CV rather than his [technical] skills. Judges should not be buffaloed by unreasoned expert opinions." Mid-State Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333, 1340 (7th Cir. 1989) (citing Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L.Rev. 40 (1901)). An expert opinion "is no better than the soundness of the reasons supporting it." Libas, Ltd. v. United States, 193 F.3d 1361, 1366 (Fed.Cir. 1999) (citations omitted).

Murphy opines that Niebur was an "insubordinate subordinate" who forced Loren-Maltese to initiate his discharge because he would not follow orders. Following orders was necessary, he states, because a police department is a quasi-military organization that requires a clear chain of command. He offers the view that because there are many styles of policing, a police chief should "adjust to a mayor's style rather than vice versa," and that "[a] mature and ethical chief, unable to remain loyal to a [mayor] who is not about to resign or be removed[,] resigns himself."

Murphy states that it was unreasonable of Niebur to regard Loren-Maltese as a suspect on the basis of "rumors, hearsay statements of officers, employees, or reporters, FBI gossip, hunches, suspicion or allegations . . .," although he does not say what would be sufficient basis for investigating suspicions of corruption if that sort of evidence was excluded. Murphy speculates that Niebur (and Bue too) "may also have . . . feared" the FBI because of the fearsome legacy of J. Edgar Hoover. He concludes that when Niebur "separated his administration of the Police Department from the oversight of the Town President he effectively voided his legal ability to command." He describes Niebur's action as an "attempted power grab" and an attempt to "assume the powers of the Town President." Murphy suggests that actions like Niebur's are "a threat to our most fundamental principles of liberty."

Murphy says that his criticisms of Niebur apply as well to Bue, and, referring to Bue's employment contract, states that he was "grossly negligent" in attempting to do his job without reading the Department Rules and Regulations because these vary a great deal across departments. Murphy asserts that in investigating his boss, the Town President, Bue violated his employment contract and the Cicero Code of Ordinances, and showed that he lacked the judgment and maturity required of his job.

As the language of Rule 702 itself suggests, a threshold question is whether Murphy's testimony would be helpful or "will assist the trier of fact to understand the evidence or to determine a fact in issue." If so, I then consider whether it is reliable and sufficiently based on facts or data. In determining whether expert testimony would be helpful, I am to consider two factors: first, "whether the proffer demonstrated that a sufficiently reliable body of specialized knowledge existed." United States v. Hall, 93 F.3d 1337, 1342 (7th Cir. 1996). The Seventh Circuit warns that "it may be more difficult at times to distinguish between testimony that reflects genuine expertise — a reliable body of genuine specialized knowledge — and something that is nothing more than fancy phrases for common sense." Id. Second, I consider whether, "even if . . . the field in general qualifies for expert testimony, the proffered testimony [is] based upon the expert's special skills." Id. at 1343. Otherwise "the expert at best is offering a gratuitous opinion, and at worst is exerting undue influence on the jury that would be subject to control under Rule 403." Id.

In this case, it is possible that police administration is a reliable body of genuine specialized knowledge. I presume that, based on his extensive experience, there is something that Murphy could tell a jury about running a police department that would not be "fancy phrases for common sense." However, he does not attempt to do so here. Instead, he offers "gratuitous opinions," Hall, 93 F.3d at 1343, that are not based on his specialized skills and address matters in which he is not expert and to which he may not testify.

Murphy offers opinions on whether Niebur and Bue acted reasonably or grossly negligently. The Seventh Circuit has in some circumstances upheld a district court's determination that an expert may testify as to legal or professional standards, although it has not required a district court to admit such testimony. But the Court of Appeals is crystal clear that an expert may not "improperly tell[] the jury why [a party's] conduct was illegal." Haley v. Gross, 86 F.3d 630, 645 (7th Cir. 1996). Expert witnesses are not allowed to draw "legal conclusions," ...


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