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Cage v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

September 24, 2013

DEAN CAGE, Plaintiff,
v.
CITY OF CHICAGO, Chicago Police Employees ANDREW JONES, JOHN ERVIN, CECILIA M. DOYLE, PAMELA FISH, as-yet unidentified employees of the CITY OF CHICAGO, Defendants

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For Dean Cage, Plaintiff: Arthur R. Loevy, Cindy Tsai, Daniel Moore Twetten, Elizabeth N. Mazur, Elizabeth C. Wang, Jonathan I. Loevy, Michael I Kanovitz, Loevy & Loevy, Chicago, IL.

For City Of Chicago, Defendant: Josh Michael Engquist, Matthew Alan Hurd, LEAD ATTORNEYS, Anne Katherine Preston, Lindsay Erin Wilson Gowin, City of Chicago (30 N LS), Chicago, IL; Craig Alan Roeb, Chapman, Glucksman, & Dean, Los Angeles, CA.

For Andrew Jones, John Ervin, Cecilia M. Doyle, Chicago Police employees, and other as-yet unidentified employees of the City of Chicago, Defendants: Josh Michael Engquist, Matthew Alan Hurd, LEAD ATTORNEYS, Anne Katherine Preston, Lindsay Erin Wilson Gowin, City of Chicago (30 N LS), Chicago, IL.

For Pamela Fish, Defendant: Shelly Byron Kulwin, LEAD ATTORNEY, Jeffrey R. Kulwin, Kulwin, Masciopinto & Kulwin, LLP, Chicago, IL.

OPINION

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MEMORANDUM OPINION AND ORDER

Virginia M. Kendall, United States District Court Judge.

In 1995, Plaintiff Dean Cage was accused and convicted of raping Loretta Zilinger, a teenage girl. After serving 12 years in prison, DNA testing proved Cage did not commit the rape. The State of Illinois thereafter agreed to vacate his conviction. After his exoneration, Cage filed suit against the City of Chicago, Chicago Police employees Andrew Jones, John Ervin, Ceclia M. Doyle, and Pamela Fish, alleging claims under 42 U.S.C. § 1983. Specifically, Cage alleges that the Defendants denied him a fair trial in violation of his Due Process rights by withholding exculpatory evidence, fabricating evidence and false reports, misleading and misdirecting the his criminal prosecution, and using unduly suggestive identification procedures. Cage also asserts constitutional claims for false imprisonment, malicious

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prosecution, failure to intervene, and conspiracy to deprive him of his constitutional rights, as well as state law claims for malicious prosecution, intentional infliction of emotional distress, civil conspiracy, respondeat superior, and indemnification. Finally, Cage seeks recovery against the City under Monell v. Dept. of Soc. Svcs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1976), alleging that municipal customs, policies, and practices at the Chicago Police Department Crime Lab caused the alleged constitutional violations.

On February 11, 2013, the Court commenced Daubert hearings to evaluate the proposed testimonies of Plaintiff's expert witnesses Gary Harmor and Charles Alan Keel, and Defendants' expert Witnesses Lucy Davis, Barry Spector, and Dan Bergman. The Court informed the parties that their filings were sufficient to arrive at a determination regarding the proposed testimony of Plaintiff's expert witness Dr. Brian Cutler. At the conclusion of the hearings, the parties resolved amongst themselves all then-outstanding objections related to the testimony of Dan Bergman. (Tr. 2/13/13, pp. 219-20.) Additionally, the parties were able to resolve through the briefing process two of Cage's three Daubert objections related to the proffered testimonies of Lucy Davis and Barry Spector. In the aftermath of all of this, the following motions remain pending before the Court: (1) Defendants' Motion to Bar the Testimony of Gary Harmor (Dkt. 163); (2) Defendants' Joint Motion No. 1 to Bar Plaintiff's Expert, Charles Alan Keel's, Testimony and Opinions (Dkt. 169); (3) Defendants' Joint Motion No. 2 to Bar Plaintiff's Expert, Charles Alan Keel's Testimony Regarding Defendant Pam Fish's Alleged Fraudulent Intent/Credibility in Testifying Concerning Serological Analysis Performed in Unrelated Criminal Cases (Dkt. 171); (4) Plaintiff's Motion to Bar Testimonies of Lucy Davis and Barry Spector (titled " Plaintiff's Daubert Motions" ) (Dkt. 165); and (5) Defendants' Motion to Exclude the Testimony of Dr. Brian L. Cutler (Dkt. 162.)

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 Pharms., 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) (citing Naeem v. McKesson Drug Co., 444 F.3d 593, 607 (7th Cir. 2006)). Rule 702 charges trial judges with the responsibility of acting as " gatekeeper[s] 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)). " 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.' " Lapsley v. Xtek, Inc., 689 F.3d 802, 804 (7th Cir. 2012) (quoting Fed.R.Evid. 702). In evaluating whether an expert's proposed testimony meets the Daubert standard, the Court is to " scrutinize the 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, 689 F.3d at 805 (quoting Kumho Tire, 526 U.S. at 152). Whether to admit expert testimony rests within the discretion of the district court. See Gen. Elec. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508

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(1997); Lapsley, 689 F.3d at 810 (" [W]e '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; see also Fed.R.Evid. 104(a) (" The court must decide any preliminary question about whether a witness is qualified ...." ); Fed.R.Evid. 702 advisory committee note (2000 Amends.) (" [T]he admissibility of all expert testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence." ).

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). Rule 702 calls for a conjunctive test and thus expert testimony must meet all five requirements to be admissible; failure on any prong is fatal to admissibility. Each requirement has been thoroughly explored in the case law and each requires a separate analysis, although the last two--reliability of principles and methods and reliable application--are closely related.

Thus, as a practical matter, district courts apply the Daubert framework described above using a three-part analysis. Meyer v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). First, the Court must determine whether the proposed witness is qualified as an expert by knowledge, skill, experience, training, or education. If so, the Court must then decide whether the reasoning or methodology underlying the expert's testimony is reliable. If these two requirements are met, the Court must assess whether the expert's proposed testimony will assist the trier of fact in understanding the evidence or to determine a factual issue. See Meyer, 629 F.3d at 644 (citing Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007)). In addition, the Court will only address those opinions brought to the Court's attention and will not separately probe each expert's report and issue sua sponte determinations regarding the admissibility of each statement under Daubert. See, e.g., Goldberg v. 401 North Wabash Venture LLC, No. 09 C 6455, 2013 WL 212912, at *1 n.1 (N.D. Ill. Jan. 18, 2013).

DISCUSSION

Police crime laboratories operated by state and municipal governments are tasked with forensic examination (fingerprints, blood typing, DNA analysis, etc.) regarding crime-related evidence. This includes clothing and bodily fluids such as semen, sperm, and saliva. Forensic analysts known as " criminalists" perform these tests and relay their findings in the form of signed laboratory reports to prosecutors, defense attorneys, and courts. Before the proliferation of DNA analysis, most testing of bodily fluids involved blood typing or serological analysis, the purpose of which was to determine whether the

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bodily fluid revealed a blood type that matched that of the alleged perpetrator. In some situations, there were insufficient bodily fluids from which to reach a blood type conclusion. In such cases, the criminalist would report a negative finding.

In the mid-1990s, DNA analysis became prominent. As a result, crime laboratories continued to employ serological tools to locate and recover bodily fluids from crime evidence but also attempted, if possible, to create DNA profiles from such fluids. The DNA profile, if generated, would then be compared to the DNA profile of the alleged perpetrator. However, where the initial serological tests failed to reveal bodily fluid on the crime evidence, no DNA analysis is conducted and the resulting reports are the same as a negative pre-DNA serological report.

I. Defendants' Motion to Bar the Testimony of Gary Harmor (Dkt. 163)

During the course of the criminal investigation following Zilinger's rape, physical evidence was collected from Zilinger's underwear and tested by Defendant and then-Chicago Police Department Crime Laboratory (" CPD Crime Lab" ) analyst Cecilia M. Doyle. The specific test Doyle conducted is called an acid phosphatase test (" AP test" ). Doyle conducted this test by swabbing a sample of fluid from Zilinger's underwear and performing a chemical test on that sample. The resulting March 9, 1995 lab report (the " Zilinger Report" ), created by Doyle and reviewed by Defendant Pamela Fish, states in relevant part that " [c]hemical tests for the presence of semen [were] conducted on extracts of," among other things, the victim's underwear, but " yielded negative results." (Zilinger Report, Dkt. 163, Ex. 2.) Cage argues that by using the term " extracts" in the Zilinger Report, Doyle misrepresented the type of tests performed on the Zilinger's clothing because the term " extracts" in this context implied the use of Prostate Specific Antigen (" P30" or " PSA" ) [1] testing, which Doyle did not perform.

Gary Harmor, the Chief Forensic Serologist [2] and Executive Director at the Serological Research Institute (" SERI" ) in Richmond, California, along with his colleague, Dr. Brian Wraxall, [3] analyzed the evidence and performed the same AP test performed Doyle in 1995. (Tr. 2/13/13, pp. 22, 32.) In addition, Harmor and Dr. Wraxall conducted P30 on pieces of the victim's underwear. The P30 test was developed after scientists discovered that the P30 protein is present in seminal fluid but not in other body fluids. (Tr. 2/13/13, p. 28.) In addition, the P30 protein is more stable and has a longer life in dried stains than the AP enzyme. (Harmor Report, ¶ 16.) Harmor and Dr. Wraxall's tests on Zilinger's underwear detected the presence of the P30 protein, which in turn implies the presence of semen or DNA.

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(Dkt. 163, Ex. 3, Harmor Rep. ¶ ¶ 17-18.) Harmor, whom Cage seeks to call as an expert witness at trial, opines, inter alia, that Doyle also would have obtained a positive result in 1995 had she performed chemical tests on extracts in the manner her report suggests. ( Id. ¶ ¶ 18-20.) According to Harmor, the phrase " chemical tests for the presence of semen conducted on extracts" was understood in 1995 to refer to chemical and microscopic testing through the use of slides. Because the test that would have been performed on extracts in 1995 is the P30 test, Cage argues that Doyle's report gave the false impression to those who read it -- Doyle's supervisor and reviewer, Pamela Fish, prosecutors, and Cage's criminal defense attorneys -- that the negative results were the product of a type of testing that had in fact never been performed. According to Harmor, had Doyle actually conducted the P30, the results would have revealed the presence of P30 protein, and therefore semen, in Zilinger's underwear. Harmor further opines that if the semen had been detected, the follow-up DQ Alpha DNA test, which was available in 1995, would have generated a DNA profile that would have excluded Cage as the attacker and prevented his wrongful conviction.

A. Opinions Pertaining to the Use of the Term " Extract"

Harmor offers four separate but related opinions regarding the Zilinger Report. First, Harmor opines that the term " extracts" as used in the report would have indicated to a DNA practitioner that slides were created and searched microscopically for sperm. (Harmor Report, Dkt. 163, Ex. 3, ¶ 8). Second, Harmor opines that Doyle misrepresented the actual testing performed on the semen sample because she used the term " extract" in the Zilinger Report. ( Id. ¶ 12.) Third, Harmor concludes that Fish's review of Doyle's report did not comport with industry standards. ( Id. ¶ ¶ 10-13). Specifically, Harmor states that " [l]aboratory reports and supporting documentation should be reviewed to verify that the conclusion(s) drawn are supportable by the tests that were performed and [that] the results obtained ... are appropriate." ( Id. ¶ 10.) Harmor determined that the administrative review Fish claims to have performed in the Zilinger case-- which included checking the RD number, comparing the list of exhibits in the submission documents to the report, and ensuring that the pages in the case file were numbered--" does not meet the minimum standards that [he] would expect from a laboratory doing examinations for biological fluids on items of evidence for use in a court of law." ( Id. ) Harmor asserts that " it is scientifically unacceptable for any laboratory to conduct the testing in this manner and then report their findings inaccurately in a criminal matter." ( Id. ¶ 13.) Fourth, Harmor opines that Fish would have discovered and prevented the misreporting if she had conducted a proper substantive review by comparing Doyle's actual work and underlying documentation to the way her findings were conveyed in the Zilinger Report. ( Id. ¶ ¶ 10, 12).

1. Qualifications

Harmor is qualified to offer the opinions described above. He received his Bachelor's degree in Forensic Science from the California State University in 1976 and began working at SERI in 1978 as a Senior Forensic Serologist. (Tr. 2/13/13, p. 23.) In that capacity, Harmor was responsible for the technical review of lab analyses and reports and for the interpretation of laboratory protocols. (Harmor CV, Dkt. 184, Ex. A, p 8.) In 2012, Harmor became SERI's Chief Forensic Serologist and Executive Director. ( Id. at 7.) As Chief Forensic Serologist, Harmor oversees " quality assurance, safety, and

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proficiency testing." ( Id. ) He is also responsible for the evaluation of analysts, the technical review of analyses and reports, and evaluating other analysts' testimony. ( Id. ) Harmor held the positions of Quality Assurance Manager between 2003 and 2011 and Assistant Director between 2008 and 2011. ( Id. at 8.) In addition, he has reviewed the analytical work of several other laboratories. (Harmor Report, ¶ 10.) Harmor is a fellow of the American Board of Criminalistics in forensic biology, with subspecialities in forensic biochemistry and forensic molecular biology. (Harmor CV, at 8.) He has testified as an expert witness in forensic serology over 400 times in over 20 states and has qualified as a DNA expert in approximately 240 cases in 14 states. ( Id. at 9.) Harmor has also been involved with a significant amount of post-conviction work, which requires that he conduct DNA testing in old cases. (Tr. 2/13/13, pp. 47-48.) [4]

Based on this experience, which encompasses the relevant time period and includes the review of countless lab reports, Harmor is qualified to offer opinion testimony regarding (1) the meaning of the term " extract" to DNA practitioners; (2) whether Doyle's use of the term was misleading given the actual testing performed; (3) whether Fish's review of Doyle's report comported with generally accepted standards in the field of serology; and (4) whether Fish would have been able to detect the misrepresentation by comparing report to the testing performed.

2. Methodology

Next the Court must decide whether the reasoning or methodology underlying Harmor's opinion is scientifically reliable. In this case, Harmor's conclusions pertaining to Fish's review of the Zilinger Report and the meaning of the term " extract" are based primarily on his experience in the field of forensic serology and in part on the American Society of Crime Laboratory Directors Laboratory's (" ASCLD-Lab" ) 1994 Accreditation Criteria Standards, which set forth the criteria for administrative and conclusion review. (Harmor Report, ¶ ¶ 10, 13.) These opinions are not derived from any formula, test, survey, statistical analysis, or technical evaluation.

" Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience." Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000); accord Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010); see also Kumho Tire Co., 526 U.S. at 153 (" [N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience." ); Jordan v. City of Chi, No. 08 C 6902, 2012 WL 254243, at *3 (N.D. Ill. Jan. 27, 2012) (" An expert may be qualified to render opinions based on experience alone." ). Indeed the Advisory Committee Notes to Rule 702 provide:

[s]ome types of expert testimony will not rely on anything like a scientific method .... Nothing in this amendment is intended to suggest that experience alone--or experience in conjunction with other knowledge, skill, training or education--may not provide a sufficient foundation for expert testimony. To the contrary, the text of rule 702 expressly contemplates that an expert may be

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qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.

Fed.R.Evid. 702. Thus, " expert[] testimony is not unreliable simply because it is founded on his experience rather than on data." Metavante Corp., 619 F.3d at 761; see, e.g., Peoples State Bank v. Stifel, Nicolaus & Co., Inc., 2013 WL 1024917, at *5 (N.D. Ind. Mar. 14, 2013) (finding the methodology and reliable-facts-and-data factors of the Daubert inquiry " not very helpful" where expert relied principally on twenty-five years of experience in the industry; in such cases, the " relevant reliability concerns ... focus upon personal knowledge or experience" ) (quoting Kumho Tire, 526 U.S. at 150); Goldberg, 2013 WL 212912, at *5 (rejecting defendant's argument that expert's " methodology is unreliable because he applies personal experience and knowledge of industry customs and practices to actions taken by defendants," finding that the expert's opinion is " not inherently unsound because it is founded on his experience rather than on data" ).

More specifically, an expert witness may opine on the accepted meaning (or lack thereof) of a word or phrase within a particular industry based his or her experience and training. See Lakeside Feeders, Inc. v. Producers Livestock Marketing Ass'n, 666 F.3d 1099, 1111 (8th Cir. 2012) (" Courts have frequently recognized the value of expert testimony defining terms of a technical nature and testifying as to whether such terms have acquired a well-recognized meaning in the business or industry." ) (quoting Nucor Corp. v. Neb. Pub. Power Dist., 891 F.2d 1343, 1350 (8th Cir. 1989)); see, e.g., Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 2013 WL 2096356 (5th Cir. 2013) (expert witness allowed to opine on the software industry's understanding of certain terms based on his experience and training in the software industry); Van Straaten v. Shell Oil Products Co. LLC, 678 F.3d 486, 489 (7th Cir. 2012) (admitting expert testimony " that the payment-card industry understands 'account number' and the ISO's 'primary account number' to be the same thing" ); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 818 (7th Cir. 1999) (noting that parties submitted " competing expert testimony regarding the industry definition of 'wax' " ); cf. Bank of China, New York Branch v. NBM LLC, 359 F.3d 171, 182 (2d Cir. 2004) (witnesses testimony regarding definitions of banking terms reflected specialized knowledge based on his extensive experience in international banking and thus should not have been admitted pursuant to Rule 701 but " [o]f course, these opinions may, nonetheless, have been admissible pursuant to Rule 702 ..." ). Similarly, experts may rely on their professional experience to offer opinion testimony regarding the standard of care and generally-accepted industry standards. See, e.g., WH Smith Hotel Servs., Inc. v. Wendy's Int'l, Inc., 25 F.3d 422, 429 (7th Cir. 1994) (affirming admission of expert testimony on customs in the commercial real estate industry); Baldonado v. Wyeth, 04 C 4312, 2012 WL 3234240, at *3-6 (N.D. Ill. Aug. 6, 2012) (denying Daubert challenge to expert who would opine on the standard of care in the pharmaceutical industry where expert " [brought] to bear her experience and training on the issue" and " repeatedly emphasized during her testimony that her opinions are not subjective, but are instead based on training and experience and having done the same process" ); In re Yasmin and Yaz (Drospirenone) Mktg. Litig., MDL No. 2100, 2011 WL 6740391, at *12 (S.D. Ill.Dec. 22, 2011) (plaintiffs " may ask a witness, who has familiarity with other pharmaceutical companies, if

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that witness is familiar with custom and practice in the industry" ); Fed. Ins. Co. v. Arthur Andersen, LLP, No. 03 C 1174, 2006 WL 6555232, at *3 (N.D. Ill. Jan. 18, 2006) (" An expert may properly testify as to 'the customs and standards of an industry, and [] opine as to how a party's conduct measured up against such standards." ) (quoting Lippe v. Bairnco Corp., No. 96 C 7600, 2002 WL 15630, at *2 (S.D.N.Y. Jan. 7, 2002)); Harms v. Lab. Corp. of Am., 155 F.Supp.2d 891, 903-04 (N.D. Ill. 2001) (" [T]estimony on the general standards of care in the industry would come from [the expert's] professional knowledge, not from his observations of [the defendant's] testing procedures as related to the current case. This is classic expert testimony." ).

Accordingly, Harmor's reliance on the 1994 ASCLD-Lab standards and his thirty years of experience as a serologist, which includes interpreting and overseeing laboratory protocol and reviewing lab reports generated by SERI and other laboratories, constitutes a sufficient basis for his opinions regarding the meaning of the term " extract" and Fish's review of the Zilinger Report.

3. Helpfulness to the Trier of Fact

The Court must also assess whether Harmor's proposed opinions will assist the jury in determining a factual issue. See Meyer, 629 F.3d at 644. This is essentially a relevance inquiry. Porter v. Whitehall Labs., Inc., 9 F.3d 607, 613 (7th Cir. 1993) (" Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." ) (quoting Daubert, 509 U.S. at 591); see also Roman v. Western Mfg., Inc., 691 F.3d 686, 694 (5th Cir. 2012) (" To be 'helpful' under Rule 702, the evidence must possess validity when applied to the pertinent factual inquiry .... Principally this is a matter of relevance." ) (internal quotations omitted); Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1184 (9th Cir. 2002) (" Whether testimony is helpful within the meaning of Rule 702 is in essence a relevancy inquiry." ); United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985) (" An additional consideration under Rule 702-- and another aspect of relevancy--is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." ).

Defendants argue that Harmor's testimony regarding the meaning of the term " extract" should be excluded pursuant to Federal Rule of Evidence 403 as unfairly prejudicial and confusing because it does not purport to explain how a layperson (as opposed to a DNA practitioner) would have interpreted the term in 1995. This argument misconceives the purpose of Harmor's testimony and Cage's theory of liability. Defendants are correct that Harmor's understanding of how a DNA practitioner would interpret the word " extract" says very little about how a lay person might interpret the term. However, Cage's allegations against Fish and Doyle do not implicate the layman's understanding of " extract." Rather, Cage alleges that Doyle created a misleading report by using terminology that, when read in the context of a serological report, implies the use of testing that she had not in fact performed and that Fish, Doyle's supervisor, either conducted an in-depth review of the report, recognized the misrepresentation, and ignoring that misrepresentation, allowed the report to be produced anyway, or acted with deliberate indifference by performing a cursory " rubber-stamp" review of the report in a manner that fell short of nationally established standards and thus did not catch the misreporting. Under either theory of liability, Harmor's

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opinion is relevant and helpful to the jury's determination of what Doyle would have understood " extract" to mean when she drafted the report and what Fish would have understood the term to mean when she reviewed Doyle's report. How a layperson would define the term is beside the point.

Defendants next argue that Harmor's conclusions regarding the meaning of " extract" and the duties of crime lab supervisors should be barred as irrelevant and confusing because Harmor contradicted his own conclusions during his deposition. Specifically, the Defendants assert that Harmor: (1) conceded that there are not and were not in 1995 nationally accepted standards governing the language that must be contained in a serology lab report; (2) defined the term " extracting" broadly to mean " tak[ing] biological material [from a] garment," effectively admitting the Defendants' argument that " extract" is not and was not in 1995 as scientifically significant a term as Cage makes it out to be; and (3) conceded that Doyle conducted a technical review of her own report and that the nationally accepted standards in 1995 did not require that technical review be performed by someone other than the report writer, but rather allowed for review by the same person that made the report.

As the Court informed the parties during the Daubert hearing, these objections concern the weight that should be accorded to Harmor's testimony and are not proper bases for exclusion. (Tr. 2/12/13, p. 232-33.) The Defendants will be free to explore on cross-examination any testimony suggesting that Harmor made inconsistent statements or equivocated when confronted with his report at his deposition. At this stage in the proceedings, however, the Court's inquiry is focused on Harmor's qualifications and his methods, not his results. See Lapsley, 689 F.3d at 805 (" A Daubert inquiry is not designed to have the district judge take the place of the jury to decide ultimate issues of credibility and accuracy .... [T]he accuracy of the actual evidence is to be tested before the jury with the familiar tools of 'vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.' " ); see also Wielgus v. Ryobi Technologies, Inc., No. 08 C 1597, 2012 WL 3643682, at *3 (N.D. Ill. Aug. 23, 2012) (" [T]he trial court's role as gatekeeper is not intended to replace cross-examination and the presentation of conflicting evidence as traditional mechanisms for highlighting weaknesses in the expert's testimony." ) (citing Spearman Indus. v. St. Paul Fire & Marine Ins. Co., 128 F.Supp.2d 1148, 1150 (N.D. Ill. 2001)) (internal quotations omitted).

Relatedly, Defendants maintain that Harmor's second and fourth opinions--that Doyle's report was misleading and that her misrepresentation would have been caught through adequate review, respectively--should be barred because they rest on Harmor's flawed conclusion regarding the meaning of the term " extract." Having found Harmor's opinions regarding the term " extract" relevant and admissible, these objections are also denied.

B. Opinions Pertaining to P30 (or " PSA" ) Testing

The portions of Zilinger's underwear that had not been consumed by the CPD Crime Lab and other laboratories were transferred to SERI for testing in 2011. (Harmor Report, ¶ 16.) R. Wraxall, SERI's then-Chief Forensic Serologist and Executive Director, performed the first tests on the underwear. (Tr. 2/13/13, p. 32.) Dr. Wraxall began by cutting pieces of the underwear that could potentially contain stains. ( Id. ) He identified these

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pieces using both visual observation and alternative light source (" ALS" ) examination, which is the process of " looking for bod[ily] fluids that may fluoresce under different lighting conditions." ( Id. 32, 43.) Dr. Wraxall then examined the cuttings using AP testing " to try to find any seminal fluid that might still be active for [the AP] enzyme." ( Id. 32.) This is accomplished by moistening a piece of paper with distilled water; laying that paper on the garment; and pulling the paper away and testing it with an " AP spot test reagent" that is made fresh every day. ( Id. 72.) The results of the AP test were negative. ( Id. 32.) According to Harmor, this result was " not surprising" because the AP enzyme loses activity with time. (Harmor Report, ¶ 16.)

After performing the AP test, Dr. Wraxall removed seven samples from the underwear and drew from them an " extraction using an aqueous solution." (Tr. 2/13/13, p. 72.) Harmor explained that this process involves " taking a piece of the cutting cloth, putting it into fluid, soaking it and then vortexing it, mixing it really fast, then centrifuging it to remove the biological materials that dissolve into water as well as the cellular material from the fabric." ( Id. ) In July 2011, Dr. Wraxall and another SERI analyst, Marissa Meininger, conducted a PSA Card test on certain parts of the aqueous extract. ( Id. 33.) The PSA Card test is more sensitive than the standard P30 test and was not available to crime laboratories in the mid-1990s. ( Id. ) Dr. Wraxall and Meininger drew their sample from a 6x6 millimeter cutout from a portion of the victim's underwear identified as " 25a" (" Section 25a" ) ( Id. 38.)

PSA Card test results are displayed in the form of a pink line known as the " T line." ( Id. 34.) Harmor explained that " the darker the color pink, the stronger [the result], and the weaker looking, the weaker it is, the less P30 [protein] that is present." ( Id. ) SERI's July 2011 test on Section 25a of Zilinger's underwear returned a " barely visible" pink line. ( Id. ) Dr. Wraxall and Meininger interpreted this as a " very weak positive" result. ( Id. 33-34.) That result was confirmed by Amy Lee, another SERI analyst ( Id. 34.) Harmor testified that even a very weak positive result is considered a positive result from a forensic perspective. ( Id. 35-36.) He added that weak positive result in no way implies a less reliable result but " simply means that there's less [P30] in the sample, so it gives a weaker signal." ( Id. 36.)

After conducting the PSA Card test, Dr. Wraxall engaged in a process known as " differential digest," which is used to separate sperm DNA from vaginal donor DNA. ( Id. 37.) After detecting sperm DNA in two areas of the extract, Dr. Wraxall performed a second PSA Card test on August 24, 2011. ( Id. 37, 78.) The August 2011 test yielded a negative result. ( Id. 37, 79.) On July 16, 2012, Harmor performed a third PSA card test. ( Id. 38.) This third test, like the first, yielded a positive result. [5] ( Id. ) Based on the presence P30 protein in the underwear in 2011 and 2012, it is Harmor's opinion that Doyle would have detected seminal fluid in the underwear had she performed P30 testing in 1995 the way her report indicates. ( Id. 41-42; Harmor Report, ¶ 16-20.)

Defendants do not dispute that Harmor's experience and training qualify him to offer an opinion based on the results the PSA Card test. [6] Instead, Defendants argue

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that Harmor's conclusion is irrelevant--in other words, unhelpful to the trier of fact--because neither CPD Crime Lab protocol nor national standards in 1995 required P30 testing after a negative result from an AP test. Indeed Harmor admitted at his deposition that both in 1995 and the present day, it is appropriate for a forensic lab to stop a semen/sperm search once the presumptive AP test returns a negative result. (Harmor Dep., Dkt. 163, Ex. 4a, pp. 162-64) Relying on this admission and governing standards in 1995, the Defendants argue that Harmor's opinion is irrelevant to the issue of withholding exculpatory evidence and would confuse and unfairly prejudice the jury by suggesting that the CPD Crime Lab should have conducted all possible tests rather than those required under nationally accepted standards.

The Defendants' argument again unduly simplifies Cage's theory of liability. Cage's claim is not simply that Doyle failed to conduct tests that would have excluded him as a suspect. Rather, Cage alleges that Doyle, Fish, and others engaged in malicious prosecution and conspired to deprive him of his constitutional rights by " endeavor[ing] to stretch and manipulate the facts and evidence to fit the false hypothesis that he was guilty of the crime." (Second Amended Complaint, ¶ 27.) At trial, Cage seeks to prove this allegation by showing that Doyle and Fish issued a misleading report that gave prosecutors and Cage's criminal defense attorneys the false impression that P30 testing had been performed when in fact it had not. Thus in Cage's view, Doyle and Fish are liable not because the CPD Crime Lab did not test Zilinger's underwear for the P30 protein, but because they " fabricated false reports" that led his criminal defense attorneys to believe the evidence against him was more ironclad than her actual lab work suggested. ( Id. ¶ 48.) Under this theory of liability, whether P30 testing was required in 1995 is neither here nor there.

The Court nevertheless recognizes Defendants' concern that Cage's criticism of Doyle for failing to perform the P30 test, taken together with Harmor's opinion that the test could have excluded Cage as a suspect, may mislead the jury into believing the Defendants should be held liable for failing to perform all available testing. However this concern does not warrant exclusion under Federal Rule of Evidence 403 for two reasons: first, testimony that P30 testing would have excluded Cage as a suspect is, for the reasons described above, highly probative to Cage's malicious prosecution and conspiracy claims; and second, a proper jury instruction can effectively mitigate any prejudicial, misleading, or confusing impact of the testimony. Accordingly, the Defendants may, at the appropriate time, propose a limiting instruction to narrow the jury's consideration of this evidence.

Defendants next contend that Harmor's conclusion is speculative because the PSA Card tests Dr. Wraxall and Harmor performed in 2011 and 2012 were more sensitive than any P30 test available in 1995. Because SERI's test was more technologically advanced, argue the Defendants, the fact that Harmor and Wraxall obtained positive results does not support the inference that Doyle would have obtained the same result, especially given that even the more sensitive PSA Card test SERI employed

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could yield no better than a " weak positive."

In observance of its gatekeeper's duty, the Court must assess not only the expert's methodology but also the reliability of the expert's application of that methodology to the facts of the case. See Fed.R.Evid. 702(c)-(d); Joiner, 522 U.S. at 146; Fuesting v. Zimmer, Inc., 421 F.3d 528, 536 (7th Cir. 2005), vacated in part on other grounds, 448 F.3d 936. Defendants' speculation objection, properly understood within the Daubert framework, is essentially a challenge to Harmor's application of SERI's PSA Card test results to the facts. [7] The inquiry here requires the Court to assess the manner in which the expert has attempted to " bring it all together" ; the question is whether the expert has " bridged the analytical gap" between the mere existence of his principles and methods in theory and his application of them to the specific facts of the case before the Court. See Howell v. CSX Transp., Inc., No. 2:11-CV-079 JD, 2013 WL 1149599, at *6 (N.D. Ind. Mar. 18, 2013) (citing Fuesting, 421 F.3d at 536); see also Joiner, 522 U.S. at 146 (" A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." ). Thus, " any step that ...


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