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Karolina Obrycka v. City of Chicago and Anthony Abbate

September 17, 2012


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


Before the Court is Plaintiff Karolina Obrycka's motion in limine in which she seeks to bar the expert testimony of Richard McCleary, Ph.D., pursuant to Rule 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993). As explained in detail below, the Court grants in part and denies in part Plaintiff's Daubert motion as to Dr. McCleary.*fn1


On April 30, 2007, Plaintiff brought a five-count Complaint alleging that Defendants City of Chicago and former Chicago police officer Anthony Abbate, Jr. violated her constitutional rights in relation to an incident on February 19, 2007 at Jesse's Shortstop Inn in Chicago, Illinois and the subsequent investigation into that incident. Specifically, Plaintiff maintains that the de facto policies of the City of Chicago -- through the conduct of members of the Chicago Police Department's ("CPD") Office of Professional Standards ("OPS") and the Department's Internal Affairs Division ("IAD") in impeding and interfering with the investigation of police misconduct, including police brutality -- deprived her of her Fourteenth Amendment substantive due process liberty interest in bodily integrity. See Monell v. Department of Soc. Servs. of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Plaintiff seeks to establish her Monell claim by presenting evidence that the City has a well-settled, widespread practice or custom of impeding and interfering with police misconduct investigations. Moreover, Plaintiff argues that there is an attendant "code of silence" that exists within the CPD, whereby officers conceal each other's misconduct in contravention of their sworn duties. Plaintiff asserts that this de facto policy and the code of silence are evidenced and caused by the CPD's failure to: (1) sufficiently investigate allegations of police misconduct; (2) accept citizen complaints against police officers; (3) promptly interview suspected officers or take witness statements and preserve evidence; (4) properly and sufficiently discipline officers; and (5) maintain accurate and complete records of complaints and investigations of misconduct. Plaintiff also contends that the CPD fabricates exculpatory evidence or destroys evidence when investigating citizen complaints against its police officers. Further, Plaintiff maintains that this de facto policy and the code of silence encourage Chicago police officers to engage in misconduct with impunity and without the fear of official consequences.

In order to counter Plaintiff's Monell claim, the City has identified Dr. Richard McCleary as an expert. Plaintiff challenges Dr. McCleary's opinions under Rule 702 and Daubert.


"The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert[.]" Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). "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)); see also Lapsley v. Xtek, Inc., ___ F.3d ___, 2012 WL 3055865, at *1 (7th Cir. July 27, 2012) ("The purpose of [the Daubert] inquiry is to vet the proposed testimony under Rule 702's requirements that it be "based on sufficient facts or data," use "reliable principles and methods," and "reliably appl[y] the principles and methods to the facts of the case.") (quoting Fed. R. Evid. 702)). Whether to admit expert testimony rests within the discretion of the district court. See General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997); Lapsley, 2012 WL 3055865, at *6 ("we 'give the district court wide latitude in performing its gate-keeping function and determining both how to measure the reliability of expert testimony and whether the testimony itself is reliable'") (quoting Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011)). "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, 561 F.3d at 705.

Under Rule 702, "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702; see also Ortiz v. City of Chicago, 656 F.3d 523, 526 (7th Cir. 2011).

District courts 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 Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). "The purpose of the Daubert inquiry is to scrutinize proposed expert witness testimony to determine if it has "the same level of intellectual rigor that characterizes the practice of an expert in the relevant field" so as to be deemed reliable enough to present to a jury." Lapsley, 2012 WL 3055865, at *1 (quoting Kumho Tire Co., 526 U.S. at 152).


I. Dr. McCleary's Qualifications

Defendants properly designated Richard McCleary, Ph.D. as an expert criminologist and statistician pursuant to Federal Rule of Civil Procedure 26(a)(2). Specifically, Dr. McCleary is a criminologist with a special emphasis in statistical analysis as it relates to public policy. He has a Ph.D. from Northwestern University in sociology with a concentration in criminology and statistics. Prior to his doctoral studies, Dr. McCleary studied mathematics and social studies in graduate school at Northwestern University, where he received a Masters degree. As an undergraduate student at the University of Wisconsin, Dr. McCleary studied mathematics. Since receiving his doctorate, Dr. McCleary has been a sociology and criminal justice professor at the University of California-Irvine, the University of New Mexico, the State University of New York-Albany, Arizona State University, and the University of Illinois. Presently, Dr. McCleary is a professor of criminology at the University of California-Irvine, where he teaches graduate level statistics courses, crime measurement, and spatial distribution crime. Dr. McCleary has also served on federal and state government task forces, and editorial boards of national peer review journals.

In the past thirty-five years, Dr. McCleary has authored or co-authored numerous books, chapters of books, articles, and reviews in the area of statistical modeling, including, but not limited to (1) "Applied Time Series Analysis for the Social Sciences," (2) "Interrupted Time Series Analysis," (3) "Evolution of Time Series Experiment," (4) "Philosophical and Statistical Foundations of Time Series Experiments," (5) "The Impact of a Crime Wave: Perceptions, Fear, and Confidence in the Police," (6) "Uniform Crime Reports as Organizational Outcomes: Three Time Series Experiments," (7) "Interrupted Time Series Analysis of Crime Statistics: the Case of Organizational Reforms," (8) "How Parole Officers Use Records," and (9) "The Mathematics of Behavioral Change." Dr. McCleary has conducted extensive research in the areas of statistical forecasting, including the forecasting of prison populations and crime rates. In addition, Dr. McCleary has been an expert witness in numerous state and federal lawsuits, especially in cases involving the secondary effects of sexually oriented business, including crime-related hazards. See, e.g., Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, Fla., 630 F.3d 1346, 1351 (11th Cir. 2011); Abilene Retail No. 30, Inc. v. Board of Comm'rs of Dickinson County, Kan., 492 F.3d 1164, 1170 (10th Cir. 2007).

Moreover, Dr. McCleary, as a criminologist, has had experience working with police departments. Dr. McCleary, for example, has lectured at police training academies, including the FBI National Academy. In addition, Dr McCleary has worked with police departments on several of his research projects, including: (1) training police on uniform coding of crimes and excessive force complaints through a grant from the U.S. Bureau of Justice Statistics to the New Mexico Criminal Justice Statistical Analysis Center; (2) studying crime rates in a native village in Alaska pursuant to grants from the United States Department of the Interior and Alaska Department of Public Safety, resulting in a published article entitled "Social Indicators in Native Village Alaska;" (3) conducting time series analysis relative to a policing program in Phoenix, Arizona which resulted in two published articles, "The Impact of a Crime Wave: Perceptions, Fear and Confidence in Police" and "Uniform Crime Reports as Organized Outcomes: Three Time Series Experiments;" (4) training police officers to work with crime victims with developmental disabilities as reported in: "Crime Victims with Developmental Disabilities: Report of a Workshop;" and (5) evaluating the effects of drinking and driving laws in numerous jurisdictions.

II. Dr. McCleary's Opinions

Dr. McCleary's May 24, 2010 expert report sets forth his opinions, the data and information upon which he relied, and the exhibits he expects to use ...

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