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Gregory Terry v. Edward Woller

December 7, 2010


The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge


Tuesday, 07 December, 2010 02:23:20 PM

Clerk, U.S. District Court, ILCD


The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the Court are the Plaintiff's Motion to Bar (#67); the Plaintiff's Motion for Partial Summary Judgment (#77); the Defendant's Motion to Bar (#88); and the Defendant's Motion for Summary Judgment (#92) . The motions are fully briefed, and the Court has carefully considered the arguments and evidence of the parties.


Plaintiff Gregory Terry is a citizen of the State of Michigan. Defendant Edward Woller is a citizen of the State of Illinois. The amount in controversy exceeds $75,000. This Court therefore has jurisdiction over the subject matter of this dispute pursuant to 28 U.S.C. 1332(a)(1).


Both parties have filed motions seeking to bar an opposing expert witness. Federal Rule of Evidence 702 governs the admissibility of expert testimony. It states, in relevant part, that "[i]f scientific, technical or other specialized knowledge will assist the trier of fact ... a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion..." It also requires that: (1) the testimony must be based upon sufficient facts or data; (2) it must be the product of reliable principles and methods; and (3) the witness must have applied the principles and methods reliably to the facts of the case. Id.

Rule 702 requires the district court to perform a "gatekeeping" function before admitting expert scientific testimony in order to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). See, Gayton v. McCoy 593 F.3d 610, 616 (7th Cir. 2010).

Under the Daubert framework, the district court must determine whether a given expert is qualified to testify in the case in question and, if so, whether his testimony is reliable. Daubert 509 U.S. at 592-93. "Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony." Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir.1990).

In determining reliability, Daubert sets forth the following non-exhaustive list of guideposts:

(1) whether the scientific theory can be or has been tested; (2) whether the theory has been subjected to peer review and publication; and (3) whether the theory has been generally accepted in the professional community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. The court should also consider the proposed expert's full range of experience and training in the subject area, as well as the methodology used to arrive at a particular conclusion. Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.2000).


Defendant has disclosed Sergeant Michael Britt as an expert witness. Plaintiff moves to bar Britt's testimony for the following reasons: (1) he was not timely disclosed; (2) he is not qualified as an "expert"; and (3) his opinions are speculative, not based on facts and data. There are any number of problems with Plaintiff's motion.

As a threshold matter, the Motion to Bar is untimely filed. The deadline for Daubert challenges was May 14, 2010. (See Discovery Plan, Doc. #31). In an Order granting Defendant's motion to extend the deadline for Defendant to disclose his experts to May 1, 2010, the Court expressly stated: "No further extension of any deadline at the request of either party will be allowed without a showing of good cause." Plaintiff's Motion to Bar was filed on June 15, over one month late. At no time did Plaintiff seek an extension of the Daubert deadline. He simply assumed that the deadline was extended for 6 weeks because that was the period of time allowed in the original discovery schedule. This assumption was not based on any reasonable belief, especially in light of the explicit direction in the Order just cited. The motion should be denied on that basis alone.

Plaintiff's pro forma challenge to the content of the Defendant's disclosure of Britt is deemed waived*fn1 , because of its lack of timeliness. In the interests of justice, however, and because the Court is ultimately the gatekeeper for the substance of expert testimony, the Court will consider Plaintiff's substantive challenges to Britt's testimony.

Plaintiff first insists that Britt is not qualified to testify about police practice and procedure in drug interdiction cases. This argument is without merit. Britt's CV reveals that his 25 year career as a police officer was focused nearly exclusively on drug investigations and arrests. His service included a number of years on several drug task forces. He received awards for that service. Fed.R.Evid.702 and Daubert permit opinion testimony by a witness who is qualified by reason of experience, training or education. Britt clearly meets that requirement.

Much of Plaintiff's remaining arguments do not go to the admissibility of Britt's testimony but rather to the weight that should be accorded to it. Where an opinion has "a reliable basis in the knowledge and experience of (a relevant] discipline," it is admissible. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999). Here, there is such a "reliable basis."

For example, Plaintiff argues that Britt's opinion is not based on any "formal studies" and is therefore inadmissible. As Fed.R.Evid. 703 makes clear, an expert may base an opinion on facts or data "of a type reasonably relied upon by experts in the particular field." The Rule does not limit the "facts or data" to "formal" studies, whatever that might mean. Whether there are "formal studies" and, if so, whether Britt's opinions are consistent with them are questions properly pursued on cross examination; the lack of citation to any such "studies" does not make Britt's testimony inadmissible.

Britt's Report explains that his opinions about drug trafficking come not only from his own experience but also from "specialized training to identify drug traffickers on the highways." He states that there are specific indicators that troopers are trained to look for. His application of those "specific indicators" to the information he was provided about Terry's and Sanders' arrests are based on the types of facts and data that law enforcement officers - or, more specifically, drug interdiction agents - utilize. Any shortcomings as to the facts or data on which Britt relied may be explored with vigorous cross examination, but the lack of reliance on formal studies does not make Britt's testimony unreliable.

The contribution of Britt's testimony to the jury's comprehension comes from his identification of indicators of drug trafficking - a matter about which the ordinary juror would have little or no knowledge - and from explaining how those indicators correlate to facts surrounding the trip taken by Sanders and Terry and the subsequent arrest. The cumulative effect of those indicators enables Britt to testify, subject of course to cross examination, to his conclusion that Terry was no innocent passenger.

The Court is, however, troubled about a few of Britt's opinions that lead up to that conclusion, namely his opinions regarding what Terry "knew" or "must have known" about the purpose of the trip, or about "why" Sanders tried to take the fall for the drugs. Nothing in Britt's experience qualifies him to testify specifically about Terry's knowledge or Sanders' state of mind.

To that extent, the motion to bar is allowed. Knowledge and state of mind are matters the jury will have to decide, based on all of the evidence, including but not limited to Britt's opinions. Britt cannot testify directly about the matters of Terry's knowledge or Sanders' state of mind. The fact that part of Britt's testimony is barred does not make his opinions on other matters suspect. See, e.g., Shreve v. Sears, Roebuck & Co., 166 F.Supp. 2d 378, 393 (D .Md.2001) (expert's lack of expertise in area of human resources precluded some of his opinions, but expertise as to construction market permitted opinions in that area).

Accordingly, the Motion to Bar Britt's testimony is GRANTED as to his opinions about knowledge and state of mind and DENIED in all other respects.


Defendant moves to bar the testimony of Plaintiff's expert Richard S. Kling, whose states his opinion as follows: Woller deprived Terry "of the effective assistance of counsel to which he was constitutionally entitled and engaged in legal malpractice but for which it is reasonably certain that Mr. Terry, whom the actual evidence showed was innocent of the charges, would not have been convicted."

Kling is a Clinical Professor of Law at IIT Chicago-Kent College of Law, where he has taught Evidence and Professional responsibility since 1985. During that time, he has also been a criminal defense practitioner, defending over 800 felony trials in the state and federal courts in the northern part of Illinois. He is certainly qualified to testify about the rules of professional conduct that govern attorneys in Illinois.*fn2

Defendant asserts that, while Kling may be an expert generally speaking about the ethical concerns of practicing law, his qualifications do not extend so far as to opine about the effects in a Henry County case of the failure to call Sanders as a witness or to seek admission of Sanders' statements. During his deposition, Kling admitted that he has never handled a case in Henry County or in the Central District of Illinois. He has no specific knowledge of statistics about drug cases in Henry County and he knows no judges, prosecutors or defense attorneys in Henry County. In other words, according to Defendant, Kling's expertise does not qualify him to testify as to tendencies in local courts as opposed to courts in Cook County or in the Northern District of Illinois.

Defendant asserts that geographic considerations may be relevant in determining whether a witness is qualified as an expert under Fed.R.Evid. 702, citing U.S. v. Pugliese, 712 F.2d 1574 (2d Cir. 1983); Taylor v. Ouachita, 648 F.2d 959 (5th Cir. 1981). Even if one assumes that these cases are apposite to the case at bar (which is questionable), this Court is not inclined to bar a witness based on 25 year old cases from other Circuits. Moreover, as Plaintiff points out, the Rules of Professional Conduct apply to all lawyers practicing in Illinois, so to that extent, the geographical division created by Defendant is immaterial. Finally, to the extent that Kling's lack of specific knowledge of Henry County practices or statistics is important at all, it goes to the weight of his testimony and not to its admissibility.

Defendant also believes that some of Kling's testimony violates earlier Court Orders (#66 and #79) that limited ths scope of his testimony. In particular, those Orders prohibited opinions on causation, commentary about the Defendant's expert's testimony, and any opinion other than the one that had been timely disclosed, ...

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