The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Following the May 28, 2010 approval and issuance of the jointly submitted final pretrial order ("FPTO") in this action, each side has deluged this Court with a host of motions in limine. With defense counsel now having tendered their inadvertently omitted responses to Motions 5 and 6 advanced by plaintiff Larry Scott ("Scott"), Scott's entire set of 15 motions (plus a few subparts) is ready for consideration. This memorandum opinion and order addresses them, with an opinion that will deal with defendants' motions in limine to follow later.
It should be remarked at the outset--and with regret--that too much of defense counsel's work product, both in their positions that triggered some of Scott's motions and in their responses to those motions, seeks to defeat this action by stressing that Scott is a bad man as evidenced by his extensive criminal record. This Court holds no brief for the criminal element in our society--much of its time and effort as a federal judge are devoted to the conviction and sentencing of defendants charged with federal crimes--but this Court also recognizes that criminals too have constitutional rights, as defense counsel seem to question.
We have all witnessed a deterioration in society's regard for law enforcement personnel because of some bad apples who proceed from the premise that suspected or actual criminals have no rights and thus, by their own lawless actions, poison the environment for the large majority of law-abiding law enforcement officers. Although the most notorious example of that phenomenon here in the Chicago area has been provided by the recent conviction of former Police Commander Jon Burge, this case itself shows how shortsighted that premise can be: Scott's conviction on charges of first-degree murder and armed robbery was overturned because the Illinois Appellate Court held that the unlawful conduct of Detective John Fassl ("Fassl," one of the defendants in this action) had violated Scott's Fourth Amendment rights, tainting his confession and requiring its suppression (People v. Scott, 366 Ill.App. 638, 852 N.E.2d 531 (1st Dist. 2006)).
As a society we are entitled to expect more from those who are entrusted with the powers that we accord to law enforcement personnel. And a fortiori we are entitled to expect more from the lawyers in the public law offices. It is no accident that Illinois criminal prosecutions are brought in the name of the "People of the State of Illinois," reflecting the concept that prosecutors are not merely advocates but are rather expected to serve as instruments of justice (in that respect, see Illinois Supreme Court Rule of Professional Conduct 3.8(a)), which expands Comment  to the ABA's Model Rule of Professional Conduct 3.8 by adding to that Comment's description of the duties of a prosecutor the following underlined language):
The duty of a public prosecutor or other government lawyer is to seek justice, not merely to convict. Although that language may be viewed as oriented toward the criminal practice, it hardly seems amiss to impose a like standard on the lawyers who represent government agencies or employees in civil matters.*fn1
That said, this opinion turns to plaintiff's motions themselves. Mention should first be made of those that are not in dispute (all part of Dkt. 141):
1. Motion 7 has been withdrawn by Scott and is therefore moot.
2. Motions 10, 15(c), 15(f) and 15(h) have been agreed to by defendants and are therefore granted.
Now on to the contested motions.
Scott's Motion 1 seeks to bar from admission at trial
(1) his videotaped confession, (2) the transcript of that confession and (3) what is called "the graphic demonstrative exhibit showing a transcription within the videotaped confession." In essence Scott's counsel argues that such a bar is supported by our Court of Appeals' very recent decision in Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010), which upheld the decision by this Court's colleague Honorable Jack Darrah to bar a videotaped confession in a case having great similarity to this one.
Here is what Fox, id. at 840 said on the subject: But there are no allegations of physical harm that the video could verify, and all of the allegations of coercion stem from events leading up to the video--events that the defendants chose not to record. Most importantly, the video represents just 23 of the 870 minutes or so of Kevin's*fn2 interrogation, and thus cannot provide a complete picture of either the interrogation itself or Kevin's level of distress.
Under those circumstances, we cannot say that the court abused its discretion in concluding that the video's prejudicial effect and potential for confusing the jury outweighed its probative value with respect to the issue of coercion or Kevin's demeanor following the interrogation.
And here is Scott's argument as to why Fox should control here (Motion at 4, emphasis in original):
The striking resemblance between what the Fox plaintiff experienced and what the Plaintiff in this matter alleges is uncanny. They both claim to have been subjected to emotional/psychological coercion, they both deny physical abuse, they both allege that their requests for an attorney were ignored, they both volunteered to take a polygraph examination to clear themselves, they both claim that their repeated denials of involvement in the murder fell on deaf ears, they both were offered a quid pro quo in exchange for confessing, and they both agreed to confess to have the police officers stop what they were doing. Critically, and most importantly, they both allege that the coercive interrogation tactics all occurred off camera. Because defense counsel really cannot dispute the just identified parallels between the two cases, and because it is obvious that the content of the confession is really not relevant (and even it if were, it poses a major danger of unfair prejudice so as to bring Fed. R. Evid. ("Evid. R.") 403 into play), a good deal of defendants' response to the motion is unpersuasive. But on the other hand, there is force to the defense contention that the video's depiction of Scott's physical appearance at the time of the confession could be found probative by the jury.
Accordingly the video (but not the audio or the transcript, or the third item to which Scott objects, which sounds like the equivalent of closed captioning on a TV program) will be a permitted exhibit. For that purpose the bowdlerized tape will have to be submitted to this Court for review and approval materially in advance of trial, so that any other necessary changes may be decided upon.
That degree of access on the part of the jury effectively satisfies the legitimate aspects of defendants' response, while at the same time taking heed of the Rule 403 dangers that would be implicit in full access. Motion 1 is thus denied in principal part but is granted to a limited extent.
Scott's Motion 2 seeks to preclude any trial testimony by Dr. Joel Silberberg, a psychiatrist who is one of defendants' proposed opinion witnesses as to Scott's asserted lack of damages. As Motion at 1 urges, Dr. Silberberg's testimony should be barred: because he is improperly boosting his own opinions (and credibility) by relying upon and basing his opinions on an undisclosed and non-testifying psychologist's opinions; and because it is impossible to determine whether the bases of Dr. Silberberg's opinions satisfy Daubert requirements.
What is at issue are the parties' competing opinions as to the extent of Scott's current state of depression and the cause of that condition, with defendants proffering Dr. Silberberg as a witness who is supported (he says) by a report authored by psychologist Dr. Robert Hanlon, while Scott relies on the opinions reached by Scott's retained damages witness, psychologist Dr. Paul Pasulka. Dr. Pasulka administered and has interpreted the results of a group of the recognized diagnostic tests to support such opinions, while Dr. Silberberg's deposition testimony admits (1) that he is not qualified to opine on that subject (due to a lack of training to administer or to interpret such tests) and (2) that he chose instead to rely on Dr. Hanlon's review of Dr. Pasulka's testing because "there's a code of practice or code of ethics that only psychologists can comment on another psychologist's report."
This Court has an intimate familiarity with the provisions of Evid. R. 703 as to the bases that are permitted to support witnesses' opinion testimony--in its capacity as a member of the Judicial Conference's Advisory Committee on the Rules of Evidence before it was appointed to chair that Committee, this Court headed the subcommittee specially assigned to review and to recommend to the entire Committee revised versions of (1) Evid. R.s 701, 702 and 703 and (2) the Committee Notes to accompany the new versions of those Rules. In that respect it shared the principal draftsmanship of the new revised versions with the Committee's extraordinarily talented and knowledgeable reporter, Professor Daniel Capra of Fordham Law School. And having considered the current motion in depth, this Court finds that defendants' approach to the issue now at hand, which looks to Dr. Silberberg's testimony while excluding that of Dr. Hanlon, fails the required Daubert-Kumho analysis.
There is of course no quarrel with Dr. Silberberg's qualifications in his field. But in this instance that is a vice rather than a virtue, because it would impermissibly coat Dr. Silberberg's opinion with the patina of expertise, even though he acknowledges that he has chosen to credit Dr. Hanlon's opinions over those of Dr. Pasulka without possessing the professional know-how to do so.
Once again Scott's counsel calls upon a Seventh Circuit decision in support of his argument--one that points up the distinction between (1) an opinion witness' permissible use of another's opinion en route to reaching the witness' own opinion and (2) the flawed methodology employed by Dr. Silberberg (Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002)). Because of the comprehensive nature of the analysis there, it bears quotation at length (id. at 613-14, with most citations omitted):
Now it is common in technical fields for an expert to base an opinion in part on what a different expert believes on the basis of expert knowledge not possessed by the first expert; and it is apparent from the wording of Rule 703 that there is no general requirement that the other expert testify as well. The Committee Notes to the 1972 Proposed Rule 703 give the example of a physician who, though not an expert in radiology, relies for a diagnosis on an x-ray. We too do not "believe that the leader of a clinical medical team must be qualified as an expert in every individual discipline encompassed by the team in order to testify as to the team's conclusions." But suppose the soundness of the underlying expert judgment is in issue. Suppose a thoracic surgeon gave expert evidence in a medical malpractice case that the plaintiff's decedent had died because the defendant, a radiologist, had negligently failed to diagnose the decedent's lung cancer until it was too advanced for surgery. The surgeon would be competent to testify that the cancer was too advanced for surgery, but in offering the additional and critical judgment that the radiologist should have discovered the cancer sooner he would be, at best, just parroting the opinion of an expert in radiology competent to testify that the defendant had x-rayed the decedent carelessly. The case would be governed by our decision in In re James Wilson Associates, 965 F.2d 160, 172-73 (7th Cir. 1992), where the issue was the state of repair of a building and "the expert who had evaluated that state--the consulting engineer--was the one who should have testified. The architect [the expert who did testify] could use what the engineer told him to offer an opinion within the architect's domain of expertise, but he could not testify for the purpose of vouching for the truth of what the engineer had told him--of becoming in short the engineer's spokesman."
The Daubert test must be applied with due regard for the specialization of modern science. A scientist, however well credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty. That would not be responsible science. A theoretical economist, however able, would not be allowed to testify to the findings of an econometric study conducted by another economist if he lacked expertise in econometrics and the study raised questions that only an econometrician could answer. If it were apparent that the study was not cut and dried, the author would have to testify; he could not hide behind the theoretician.
Little more really needs to be said. Dr. Silberberg's deposition testimony has acknowledged his inability to comment on Dr. Pasulka's report, not only as an ethical matter but also because he is not equipped to do so professionally. Yet he goes on to vouch for Dr. Hanlon's contrary opinion, even though, as Dura, 285 F.3d at 613 posits, "the soundness of the underlying expert judgment is in issue." As teed up by defendants, Dr. Silberberg's report flunks the Daubert-Kumho gatekeeping test. Motion 2 is granted.
Here too Scott seeks to bar the testimony of an opinion witness, R. Douglas Rhoads ("Rhoads"). According to Rhoads' Fed. R. Civ. P. ("Civ. R.") 26(a)(2)(B) report, he has concluded, and would expect to testify, as to the conduct of the detective defendants in this case:
Their actions meet the standards as taught traditionally and are consistent with reasonable and appropriate law enforcement practices and training nationally.
Rhoads reaches that conclusion on the basis of his Summary of Facts, which reads like a brief written by defense counsel, accepting in its totality the version of events given by those detectives and all other pro-prosecution witnesses.
It is of course permissible for an opinion witness, in arriving at his or her conclusions, to premise that result on one side's view of contested events--as Magistrate Judge Jeffrey Cole said in Richman ...