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Bianca Jordan, As Guardian of Delbert Van Allen, A Minor v. City Chicago

January 27, 2012

BIANCA JORDAN, AS GUARDIAN OF DELBERT VAN ALLEN, A MINOR, PLAINTIFF,
v.
CITY CHICAGO, A MUNICIPAL CORPORATION, OFFICER THOMAS O'SHAUGHNESSY (STAR # 19271) AND OFFICER CHRISTOPHER RIGAN (STAR # 15589), DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiff has moved to bar the testimony of Defendants' expert, Mr. Richard Ernest, pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Federal Rules of Evidence 702, 402, and 403. Plaintiff has also moved in limine to bar Mr. Ernest from using mannequins, and photographs of mannequins, at trial. For the following reasons, the Court grants Plaintiff's Daubert motion in part and denies it in part, and denies Plaintiff's motion in limine.

BACKGROUND

Plaintiff Bianca Jordan, as guardian of Delbert Van Allen, a minor, brought this lawsuit based on an October 31, 2008 incident at 6922 South Aberdeen Street in Chicago, Illinois involving Defendant Chicago Police Officers O'Shaughnessy and Rigan and the shooting of Van Allen. (R. 50, Amend. Compl. ¶¶ 9-12.) She alleges that Van Allen, a minor, was at his grandmother's home in South Chicago on the night of October 31, when a police squad car pulled up and stopped in front of the property. (Id. ¶ 9.) She further avers that Officers O'Shaughnessy and Rigan got out of the car, chased Van Allen without legal justification, and shot him three times without legal justification. (Id. ¶¶ 10-11.) The Complaint also alleges that Officers O'Shaughnessy and Rigan falsely arrested Van Allen and maliciously prosecuted him. (Id. ¶¶ 12-16.) Plaintiff brings excessive force, false arrest, malicious prosecution, assault, and battery claims.

LEGAL STANDARD

I. Admissibility of Expert Testimony

The admissibility of expert testimony is governed by Federal Rule of Evidence ("Rule") 702 and the Supreme Court's opinion in Daubert. Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. Nov. 18, 2011). "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). District courts must determine whether expert testimony is both relevant and reliable. Bielskis, 663 F.3d at 893. To do so, courts must "ascertain whether the expert is qualified, whether his or her methodology is scientifically reliable, and whether the testimony will 'assist the trier of fact to understand the evidence or to determine a fact in issue.'" Id. (quoting Fed. R. Evid. 702); see also Ortiz v. City of Chicago, 656 F.3d 523, 526 (7th Cir. 2011) ("[E]xpert testimony is admissible if (1) the testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case."). "The 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 v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

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)). In assessing whether an expert's testimony is reliable, Daubert lists a number of considerations - including testing, peer review, error rates, and acceptability in the relevant scientific community. Daubert, 509 U.S. at 593-94. The 2000 Advisory Committee's Notes to Rule 702 suggest additional criteria for gauging expert reliability, including whether:

(1) "maintenance standards and controls" exist; (2) the testimony relates to "matters growing naturally and directly out of research they have conducted independent of the litigation," or was developed "expressly for purposes of testifying"; (3) "the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion"; (4) "the expert has adequately accounted for obvious alternative explanations"; (5) "the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting"; and (6) "the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give." See Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005) (citations omitted), vacated in part on other grounds, 448 F.3d 936 (7th Cir. 2000) (quoting Fed. R. Evid. 702 advisory committee's note (2000)); see also Am. Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 817 (7th Cir. 2010). "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., Ltd v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

The Supreme Court, however, has clearly stated that "the test of reliability is flexible, and Daubert'slist of specific factors neither necessarily nor exclusively applies to all experts or in every case." Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167');">119 S. Ct. 1167 (internal quotation omitted). This is especially true when the expert's opinions are non-scientific in nature and do not follow traditional scientific testing. "[T]he test for reliability for nonscientific experts is 'flexible' and . . . Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." United States v. Romero, 189 F.3d 576, 584 (7th Cir. 1999) (quoting Kumho Tire, 536 U.S. at 141). "[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Kumho Tire, 526 U.S. at 142 (emphasis in original); see also Ortiz, 656 F.3d at 536.

An expert may be qualified to render opinions based on experience alone. "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. The Seventh Circuit has stated repeatedly that "genuine expertise may be based on experience or training." United States v. Conn, 297 F.3d 548, 556 (7th Cir. 2002) (quoting Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996)). "[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 and Decorators Pension, Health and Welfare, and Deferred Sav. Plan Trust Funds v. Royal Int'l Drywall and Decorating, Inc., 493 F.3d 782, 787-88 (7th Cir. 2007) (citations and quotations omitted); see also Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (emphasis in original) (quoting Fed. R. Evid. 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." Trustees of Chicago, 493 F.3d at 788 (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)).

II. Motion in Limine

"Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In limine rulings avoid delay and allow the parties the opportunity to prepare themselves and witnesses for the introduction or exclusion of the applicable evidence. See Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999); United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989). Trial courts have broad discretion in ruling on evidentiary issues before trial. See United States v. Chambers, 642 F.3d 588, 594 (7th Cir. 2011). Regardless of the Court's initial ruling on a motion in limine, the Court may adjust its ruling during the course of trial. See Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 565 (7th Cir. 2006). The Court will only grant a motion in limine when the evidence is clearly inadmissible for any purpose. See Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th ...


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