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Roger Fairley and Richard Gackowski v. Dennis andrews

May 31, 2011


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge


Defendants have moved pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to preclude the expert testimony of Steve Martin. For the following reasons, the Court grants Defendants' motion. The Court also grants Defendants' motion to exclude the Rule 1006 summaries of the sustained rates and discipline based on Martin's analysis of the IAD investigation files.


"The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)." Lewis v. Citgo Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). "The Federal Rules of Evidence define an 'expert' as a person who possesses 'specialized knowledge' due to his 'skill, experience, training, or education' that 'will assist the trier of fact to understand the evidence or to determine a fact in issue.'" Banister v. Burton, 636 F.3d 828, 831 (7th Cir. 2011) (quoting Fed.R.Evid. 702). Rule 702 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." Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874, 881 (7th Cir. 2011) (quoting Fed.R.Evid. 702).

Under the expert-testimony framework, federal courts perform the gatekeeping function of determining prior to admission whether the expert testimony is both relevant and reliable. See Banister, 636 F.3d at 831; see also United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) ("To determine reliability, the court should consider the proposed expert's full range of experience and training, as well as the methodology used to arrive [at] a particular conclusion."). In particular, federal courts employ a three-part analysis in making this determination: (1) the expert must be qualified as an expert by knowledge, skill, experience, training, or education; (2) the expert's reasoning or methodology underlying his testimony must be scientifically reliable; and (3) the expert testimony must assist the trier of fact in understanding the evidence or to determine a factual issue. See Myers v. Illinois Central R. Co., 629 F.3d 639, 644 (7th Cir. 2010). As the Seventh Circuit instructs, "[t]he focus of the district court's Daubert inquiry must be solely on principles and methodology, not on the conclusions they generate." Winters v. FruCon Inc., 498 F.3d 734, 742 (7th Cir. 2007) (quoting Daubert, 509 U.S. at 595). "The goal of Daubert is to assure that experts employ the same 'intellectual rigor' in their courtroom testimony as would be employed by an expert in the relevant field." Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167 (1999)).

In Daubert, the Supreme Court offered the following non-exclusive factors to assist courts in determining whether a particular expert opinion is grounded in a reliable scientific methodology: (1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) whether the theory has a known or potential rate of error; and (4) whether the relevant scientific community has accepted the theory. See Happel v. Walmart Stores, Inc., 602 F.3d 820, 824 (7th Cir. 2010).

An expert may be qualified to render opinions based on experience alone. See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) ("An expert's testimony is not unreliable simply because it is founded on his experience rather than on data"). "In certain fields, experience is the predominant, if not the sole basis for a great deal of reliable expert testimony." Advisory Committee Notes to Rule 702. "[W]hile extensive academic and practical expertise in an area is certainly sufficient to qualify a potential witness as an expert, Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience." Trustees of Chicago Painters & Decorators Pension, Health & Welfare v. Royal Int'l Drywall & Decorating, Inc., 493 F.3d 782, 787-88 (7th Cir. 2007) (citations and quotations omitted). As such, courts "consider a proposed expert's full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area." Id. Finally, "[t]he proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard." Lewis, 561 F.3d at 705.


On appeal, the Seventh Circuit narrowed Plaintiffs' First Amendment claims for trial concluding that Plaintiffs' claim based on Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), namely, that the Defendants punished them for defying the code of silence by reporting fellow correctional officers' misconduct, was not protected speech in light of Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). See Fairley v. Andrews, 578 F.3d 518, 522-25 (7th Cir. 2009), and thus is no longer part of this lawsuit. The Seventh Circuit, however, concluded that Garcetti did not bar Plaintiffs' theory of liability that Defendants bullied, harassed, and threatened them to deter them from testifying in the Fields litigation, which concerned the use of excessive force against inmates at the Cook County Department of Corrections ("CCDOC"). See id. at524-25. More specifically, the Fairley court concluded that the "first amendment protects speakers from threats of punishment that are designed to discourage future speech." Id. at 525. To prove their remaining First Amendment claim, Plaintiffs must establish that: (1) Defendants bullied, threatened, or harassed them; (2) Plaintiffs' potential testimony in the Fields litigation was the "but-for" cause of Defendants' assaults and threats; and (3) damages. See id. at 525-26.


Plaintiffs properly designated Steve Martin as an expert in correctional facilities administration under Federal Rule of Civil Procedure 26(a)(2). In the present Daubert motion, Defendants argue that Steve Martin's expert reports and opinions are irrelevant to this lawsuit after the Seventh Circuit's opinion in Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009), because Martin's opinions pertain to Plaintiffs' Monell code of silence claim. Also, Defendants contend that Martin's expert reports and opinions do not have a sufficient basis as required by Daubert and Rule 702.

I. Steve Martin's Background and Opinions

A. Background

Martin has been in the field of criminal justice since 1972 and is a licenced attorney with a background in criminology and correctional administration. In particular, Martin received his juris doctor from University of Tulsa in 1981, his Master of Arts in Correctional Administration from Sam Houston State University in 1974, and his Bachelor of Science in Criminology and Corrections from Sam Houston State University in 1973. Prior to becoming a corrections consultant in 1987, Martin worked for the Texas Attorney General's Office as a consultant to the Chief of the Enforcement Division on litigation involving the Texas Department of Corrections. He also worked for the Texas Department of Corrections in several capacities, including legal counsel, general counsel, and as the Executive Assistant to the Director. ...

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