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Karolina Obrycka v. City of Chicago et al

June 16, 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 Thomas D. Smith 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 denies in large part, denies in part as moot, and grants in part 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 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, of failing to sufficiently investigate allegations of officer misconduct, and of investigating complaints against off-duty police officers differently than it investigates complaints against other citizens. In her Monell claim, Plaintiff also alleges that a "code of silence" exists within the Chicago Police Department ("CPD") whereby officers conceal each others' misconduct, in contravention of their sworn duties. Plaintiff claims that all of these policies, practices and customs, individually and collectively, encourage Chicago police officers -- and, specifically in this case, Defendant Officer Abbate -- to engage in misconduct with impunity and without fear of official consequences.


"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).

"Rule 702 allows a witness to be 'qualified as an expert by knowledge, skill, experience, training, or education. . . . An expert's testimony is not unreliable simply because it is founded on his experience rather than on data." Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (emphasis in original) (quoting Fed. R. Evid. 702). Indeed, "[i]n certain fields, experience is the predominant, if not the sole basis for a great deal of reliable expert testimony." Advisory Committee's Notes to Rule 702. To be sure, district courts must still "ensure that the expert testimony at issue both rests on a reliable foundation and is relevant to the task at hand." Trustees of Chicago Painters & Decorators Pension, Health & Welfare v. Royal Int'l Drywall & Decorating, Inc., 493 F.3d 782, 787 (7th Cir. 2007) (quoting United States v. Cruz-Velasco, 224 F.3d 664, 660 (7th Cir. 2000) (internal quotation and citation omitted)). As the Seventh Circuit has repeatedly recognized, however, "while 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." Id. at 787-88 (citations and quotations omitted); see also Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). Ultimately, "[t]he proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard" by a preponderance of the evidence. Lewis, 561 F.3d at 705.


The City has moved to exclude the opinions of Thomas D. Smith, one of four experts Plaintiff has proffered to provide testimony to support her Monell claim against the City. Plaintiff specifically retained Smith to opine on the process by which the City investigates complaints of police officer misconduct.*fn2 The City argues that Smith's opinions are not relevant or reliable under Rule 702. The City specifically contends that (1) Smith's qualifications are insufficient to qualify him as an expert, (2) his opinions "merely parrot the opinions of plaintiff's attorney" and are thus unreliable (R. 264, Mot. to Exclude Thomas Smith, at 10), and (3) his opinions fail to assist the jury in determining any fact at issue (id. at 15).

The Court has carefully reviewed Smith's report, as well as the parties' submissions regarding his report and the transcript of Smith's November 5, 2009 deposition. The Court also held a Daubert hearing on June 10, 2011, during which Smith testified for approximately 4.5 hours. Based on its comprehensive review of all of the evidence submitted in connection with the City's motion to exclude Smith's testimony, the Court denies in large part, denies in part as moot, and grants in part the City's motion.*fn3

I. Thomas Smith's Background and Opinions

Plaintiff disclosed Smith as an expert witness on OPS procedures and excessive force investigations of CPD officers. In his report, Smith opines on the factors which negatively impacted OPS's ability to investigate excessive force complaints against Chicago police officers.

(R. 264-1, Smith Rept., at 21.)

A. Background

Mr. Smith was the Chief Investigator of the CPD's Office of Professional Standards ("OPS") from July 1998 to January 2002. As Chief Investigator, Smith was "responsible for monitoring the most serious and complex investigations," managed the OPS Major Incident Response Team that responded to, inter alia, all serious excessive force incidents involving Chicago police officers, and served as the liaison to other CPD units, outside law enforcement agencies, the Corporation Counsel of the City of Chicago, and the Cook County State's Attorney's Office. (R. 264-1, Thomas D. Smith Curriculum Vitae ("CV"), at 36.) Smith's responsibilities also included reviewing OPS investigations and providing feedback as to whether further investigation was required; reviewing decisions of the Command Channel Review ("CCR") when they conflicted with OPS conclusions; and, at the request of the OPS Chief Administrator, making recommendations regarding OPS operations and excessive force issues. (Id.) During his tenure at OPS, Smith "was present at the scene of over 100 CPD shootings, deaths in custody and serious excessive force cases." (Id.)

Smith came to OPS after spending three years conducting compliance and fraud investigations at a private insurance company. Then-CPD Superintendent Terry Hilliard, a former colleague of Smith's, recruited Smith for the position at OPS. Prior to that, Smith had a twenty-six year career with the U.S. Federal Bureau of Investigation ("FBI"). During his career in the FBI, Smith became a specialist in domestic and international terrorism. He investigated both "reactive" crimes and acts of terrorism, and as he became increasingly experienced, he assumed ...

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