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Karolina Obrycka v. City of Chicago et al

June 2, 2011


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


Before the Court is Defendant City of Chicago's motion to exclude the expert testimony of Dr. Peter Manning pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). For the reasons discussed below, the Court grants Defendant's motion.


On April 30, 2007, Plaintiff Karolina Obrycka ("Plaintiff") filed the underlying lawsuit against Defendants City of Chicago ("City"), Anthony Abbate, Jr., Gary Ortiz, and Patti Chiriboga for violating her First and Fourteenth Amendment rights.*fn1 Of particular import to the present motion, Plaintiff also brings a Monell claim against the City. See Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiff alleges that on the night of February 19, 2007, while working as a bartender/waitress at Jesse's Shortstop Inn in Chicago, Defendant Officer Abbate -- an off-duty Chicago police officer who had been drinking at the bar that evening -- approached Plaintiff after she refused to serve him additional alcoholic beverages. With no warning, Defendant Officer Abbate proceeded to viciously beat, kick, and punch Plaintiff. Plaintiff alleges specific facts which, she contends, unequivocally demonstrate that the City conducted a sham investigation into the incident, in bad faith, and designed to protect Defendant Officer Abbate. She also alleges facts which, she argues, demonstrate that other City employees -- including other Chicago police officers -- conspired to prevent her from filing charges against Defendant Officer Abbate or from otherwise bringing the alleged misconduct to light. In Plaintiff's Monell claim, she contends, inter alia, that the City has de facto policies and practices of concealing officer misconduct and of investigating complaints against off-duty police officers differently than it investigates complaints against other citizens, and that a "code of silence" exists within the Chicago Police Department ("CPD"). Plaintiff claims that all of these things, individually and collectively, create a culture within the CPD that permits and encourages Chicago police officers to engage in misconduct with impunity and without fear of official consequences.

Plaintiff has disclosed Dr. Peter Manning as one of four expert witnesses to present testimony in support of her Monell claim against the City. Plaintiff is not proffering Dr. Manning to testify on policing in general. Plaintiff specifically retained Dr. Manning to "examin[e] the issue of whether a culture of impunity and a Code of Silence are endemic to the Chicago Police Department" and, if he determines that such a culture exists, to opine on the ways in which that culture "directly cause[s] violations of the constitutional rights of its citizens," including the violations Plaintiff alleges in this case. (R. 281, Pl.'s Mem. in Opposition to City's Mot. to Exclude, at 1-2, 6.) Plaintiff submits that "Dr. Manning is the perfect man for the job of reliably delivering the important piece that the Chicago Police Culture plays in establishing this point." (Id. at 2.)

Dr. Manning issued his expert report on August 31, 2009. As the Court will discuss below, the majority of Dr. Manning's nine-page report is comprised of sweeping generalizations regarding "police organizations," "police departments," the police "organizational culture," and the attitudes and characteristics of police officers. Dr. Manning offers CPD-specific opinions only sporadically in the report. Nevertheless, at the conclusion of his report, Dr. Manning presents the following summary:

The Chicago Police Department permits wide discretion on the job to officers. Their mode of coping with uncertainty is to back each other up, maintain a code of silence, avoid paperwork that is revealing of errors, and emphasize loyalty rather than "rule-following." The paperwork required is seen as a [sic] minimal and a means to justify the officer's decision(s). Supervision is difficult at best, but the level and kinds of complaints sustained, the ritual of evaluation, job control, and the low visibility of deciding means a high degree of tolerance of officers' misconduct as well as a hesitance to investigate complaints and misconduct. These unwritten rules about backing up each other, the code of silence that protects officers from revelations concerning their conduct and administrative laxity are directly a cause of acting with impunity against citizens, as seen in the beating and level of violence seen in the Abbate case. The history of not sustaining complaints also encourages a context of disregard for citizens' rights on and off duty. Finally, the long standing tolerance of misconduct by the top administration of the police department and city also encourages police misconduct. I can state with a reasonable degree of scientific certainty in my field of expertise that the context of the Chicago Police Department and the occupational culture of the patrol officer[] contributed directly to the pattern of misconduct in the Abbate case.

(R. 270-1, Ex. A ("Manning Rept.") at 27-28.)

The City asks the Court to exclude Dr. Manning's report under Rule 702 and Daubert because it is "an academic mini-treatise on issues in policing in general, not a written report related to the Chicago Police Department or Chicago police officers." (R. 270, Mot. to Bar Peter Manning, at 2.) The City contends that (1) Dr. Manning's opinions are not relevant to Plaintiff's Monell claim and do not assist the trier of fact, (2) his opinions on policing in general "have nothing to do with the City of Chicago and are pure ipse dixit," and (3) his opinions regarding the CPD and Chicago police officers are unreliable and inadmissible because they are based, in large part, on summaries of data prepared by Plaintiff's counsel, and also rely on the report of one of Plaintiff's other proffered experts, Dr. Steven Whitman, whose expert testimony the City is also disputing. (Id. at 6-7.)*fn2

The Court has carefully reviewed Dr. Manning's report, as well as the parties' submissions regarding his report and the transcript of Dr. Manning's November 17, 2009 deposition. The Court also held a Daubert hearing on May 26, 2011, during which Dr. Manning testified for approximately six hours. Based on its comprehensive review of all of the evidence submitted in connection with the City's motion to exclude Dr. Manning's testimony, the Court grants the City's motion.


"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).

"The district court functions as a gatekeeper with respect to testimony proffered under Rule 702 to ensure that the testimony is sufficiently reliable to qualify for admission." Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). District courts must employ a three-part analysis before admitting expert testimony: (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's testimony must assist the trier of fact in understanding the evidence or to determine a factual issue. See Myers v. Illinois Central R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010); 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."). 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. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2007) (quoting Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002)). "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., 526 U.S. at 152).

In Daubert, the Supreme Court offered the following non-exclusive factors to aid 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); Winters, 498 F.3d at 742. Further, the 2000 Advisory Committee Notes to Rule 702 list additional factors for gauging an expert's reliability, including whether: (1) the testimony relates to matters growing naturally and directly out of research that was conducted independently from the instant litigation; (2) the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion; (3) the expert has adequately accounted for obvious alternative explanations; (4) the expert is being as careful as she would be in her regular professional work outside of paid litigation consulting; and (5) whether the expert's field of expertise is known to reach reliable results for the type of opinion the expert is giving. See American Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 817 (7th Cir. 2010); Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005), vacated in part on other grounds, 448 F.3d 936 (7th Cir. 2006).

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"); Trustees of Chicago Painters & Decorators Pension, Health & Welfare v. Royal Int'l Drywall & Decorating, Inc., 493 F.3d 782, 787-88 (7th Cir. 2007) ("[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.") (citations and quotations omitted). Indeed, "[i]n 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. 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. Ultimately, "[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.


I. Dr. Manning's Report

Dr. Manning is a professional sociologist with nearly 40 years of experience observing police departments in the United States, England, and Canada. (Manning Rept., at 20.) He obtained a Ph.D. in sociology from Duke University in 1965. (R. 281-1, Curriculum Vitae ("CV"), at 3.) From 1965-1966, Dr. Manning worked as an assistant professor of sociology at Missouri University. (Id. at 3.) Between 1966-2000, Dr. Manning was a professor in the Departments of Sociology and Psychiatry and in the School of Criminal Justice and Sociology at Michigan State University. (Id.) During that time, Dr. Manning also spent time as a visiting research scholar at the University of Surrey in Guilford, England, as a visiting fellow, research fellow, and senior principal scientific officer at Oxford University, and in other visiting positions at universities nationwide. (Id.) Since 2001, Dr. Manning has held the Eileen and Elmer V.H. Brooks Trustees' Chair in Criminal Justice at Northeastern University in Boston, Massachusetts. (Id. at 4.)

Dr. Manning has authored and edited approximately eighteen books, including Police Work: The Social Organization of Policing (1977), Police Work (1997), Encyclopedia of Police Sciences (2007), and Policing: A View from the Street (2d ed. 2008). Dr. Manning has written numerous chapters on policing and sociology, see id. at 7-13, and his works have been published in a litany of scholarly journals, see id. at 13-20. Among those works are articles entitled The Social Context of Police Lying; The Occupational Culture of Corrections and Police Officers; and The Study of Policing. Dr. Manning serves on the editorial boards of various sociology- and criminal ...

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