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Karolina Obrycka v. City of Chicago et al

June 29, 2011

KAROLINA OBRYCKA, PLAINTIFF,
v.
CITY OF CHICAGO ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant City of Chicago's motion to exclude the expert testimony of Dr. Steven Whitman 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 in part and denies in part Defendant's motion.

INTRODUCTION

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.

Plaintiff has proffered Dr. Steven Whitman to provide expert testimony in support of her Monell claim against the City. Dr. Whitman is a statistician and epidemiologist. As discussed below, Plaintiff provided Dr. Whitman with data the City produced during fact discovery concerning excessive force complaints filed against Chicago police officers. Plaintiff asked Dr. Whitman to analyze the data and (1) "[p]resent all evidence that speaks to the question of whether Officer Anthony Abbate had reason to believe that he could act with impunity, that is, that he had reason to believe that he would not be punished regardless of what he did to Karolina Obrycka"; (2) address whether "any of the data speak to whether a 'code of silence' exists in the CPD"; and (3) analyze a small data set of complaints filed against Chicago police officers for driving under the influence of alcohol. (R. 266-1, Whitman Rept., at 8, 16, 19*fn2 .) In his expert report, Dr. Whitman calculates the "sustained" rates for investigations into allegations of police misconduct in the relevant Districts in this case.*fn3 He then compares his findings to analyses that he and others have performed on the "sustained" rates of the CPD citywide, and of other large metropolitan police departments in the United States. Dr. Whitman draws conclusions from those comparisons to answer Plaintiff's questions.

In its motion, the City challenges the reliability of Dr. Whitman's opinions under Rule 702.*fn4 Specifically, the City argues that (1) Dr. Whitman is not qualified to offer expert testimony on police matters, (2) some of his opinions are based on misrepresentations of data and are thus unreliable, (3) some of his opinions are unreliable because he relied on Plaintiff's attorneys' summaries of facts, and (4) his conclusions about the "conduct of police officers" are pure ipse dixit. (R. 255, City Mot. to Exclude Steven Whitman.) Having carefully reviewed Dr. Whitman's report, the parties' briefs, and the transcript of Dr. Whitman's February 5, 2010 deposition, the Court grants in part and denies in part the City's motion.

LEGAL STANDARD

"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). Nevertheless, 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)). 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.

ANALYSIS

I. Dr. Whitman's Qualifications, ...


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