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Cazares v. Frugoli

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

March 31, 2017

JOSE ANDRES CAZARES, as Special Administrator of the Estate of ANDREW CAZARES, deceased and FAUSTO T. MANZERA, as Special Administrator of the Estate of FAUSTO A. MANZERA, et al., Plaintiffs,
v.
JOSEPH FRUGOLI, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Virginia M. Kendall, Judge

         On April 10, 2009, Andrew Cazares and Fausto A. Manzera, two college-aged men, were killed when Joseph Frugoli, an intoxicated off-duty Chicago Police Detective, crashed into their car that was stopped on a Chicago expressway. Plaintiffs Jose Cazares and Fausto T. Manzera, as special administrators of the estates of Cazares and Manzera, respectively, sued Frugoli[1] and Frugoli's employer, the City of Chicago (“Chicago” or “the City”).[2] The Plaintiffs argue that Frugoli and Chicago should be held responsible for Cazares' and Manzera's wrongful deaths. Specifically, in Count IV of Cazares' and Manzera's Fifth Amended Complaints, the Plaintiffs allege that the City should be held responsible for the deaths pursuant to 42 U.S.C. § 1983 under a theory of municipal liability. (Dkt. Nos. 86, 87); see Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2036 (1978) (municipal bodies may be sued for constitutional deprivations caused by governmental custom). Plaintiffs allege the City violated the decedents' substantive due process right to bodily integrity through the City's de facto policies of failing to investigate or prosecute police officer misconduct and the Chicago Police Department's code of silence, which led Frugoli to drive drunk without fear of consequences. Under current consideration are Chicago's Motions to Bar the Plaintiffs' three proposed expert witnesses and its Motion for Summary Judgment. Chicago's Motions to Bar Plaintiffs' Expert Witnesses is granted in part and denied in part. For the reasons discussed herein, Chicago's Motion for Summary Judgment is denied.

         FACTS

         In the early hours of April 10, 2009, Joseph Frugoli, an off-duty Chicago Police Department (“CPD”) Detective, got behind the wheel of his Lexus SUV after spending the majority of the evening drinking at two different bars for approximately 4-5 hours. (Def. 56.1 ¶¶ 6-8, 11-12; Dkt. 290 ¶ 8.)[3] Just after entering the Dan Ryan Expressway on Chicago's near south side, Frugoli crashed into the back of a stopped car killing its driver and passenger, Fausto A. Manzera and Andrew Cazares. (Def. 56.1 ¶¶ 20-23, 25.) Frugoli left the scene of the accident on foot, but was found and detained by Chicago Police Officers Adrienne Seiber and Todd Stremplewski approximately 15 minutes after the officers received the call about the accident. (Def. 56.1 ¶¶ 26-28; Dkt. 290-1 at 11:12-19.) When questioned by the officers, Frugoli admitted that he was in an accident and also conceded that he had been at a bar that evening. (Def. 56.1 ¶ 29) During their interview of Frugoli, the officers discovered that he was a Chicago police officer and they called for a supervisor and an ambulance because Frugoli had suffered a head injury in the collision and was bleeding.[4] (Def. 56.1 ¶¶ 30-31, 33.) Despite interviewing, handcuffing, and placing Frugoli in a squad car, Stremplewski stated that he did not notice the odor of alcohol on Frugoli or recognize any signs of his impairment. (Pl. SOAF ¶ 2; Dkt. 285-9 at 12.) Before the ambulance arrived to transport Frugoli, the CPD officers on the scene did not administer any of the usual driving under the influence (“DUI”) tests to Frugoli and neither recalls writing a report. (Def. 56.1 ¶ 34.) Paramedics who transported Frugoli to the hospital, however, noticed an odor of alcohol on Frugoli. (Pl. SOAF ¶ 4.) After arriving at the hospital and being tested, Frugoli's blood alcohol content was .328 mg/dl which is over four times the legal limit. (Dkt. 290-13 ¶ 31.) Two hours later, the Illinois State Police measured Frugoli's blood alcohol level at .24 mg/dl, which is three times the legal limit. (Pl. SOAF ¶ 4.) Frugoli was not drinking with any other CPD officers the night of the accident and testified that he was not encouraged or assisted to drink and drive that evening by any CPD officer. (Def. 56.1 ¶¶ 9, 10, 13.)

         The fatal accident involving Manzera and Cazares was not the first time Frugoli had been suspected of driving drunk. On January 16, 2005, Frugoli rear-ended another vehicle on the Dan Ryan expressway. (Pl. SOAF ¶ 5.) Illinois State Trooper Kraft, who investigated the 2005 accident, later testified that he detected an odor of alcohol on Frugoli after the accident. (Id.) Frugoli admitted that he drank one beer before the accident, a practice he testified was not uncommon. (Dkt. 299 at 11; Dkt. 285-6 at 93:14-22.) Frugoli, who claimed he was injured in the collision, was transported from the scene of the accident to the hospital by ambulance. (Pl. SOAF ¶ 6.) By the time Trooper Kraft got to the hospital to continue his investigation, Frugoli had left, which prevented Kraft from performing any intoxication tests. (Id.) Trooper Kraft then went to Frugoli's home, where he left two traffic citations. (Id. ¶ 7.) When Kraft went to Cook County traffic court to prosecute the tickets, he saw Frugoli leaving and learned that the tickets had already been dismissed. (Id.) There is no evidence in the record that Frugoli ever reported this incident to the CPD or that the CPD was otherwise aware of the incident. (Def. 56.1 ¶ 42.)

         Frugoli was also in two early morning car accidents in January 2008. On January 26, 2008, Frugoli was involved in a single car accident while on duty at 4:30 a.m. (Pl. SOAF ¶ 9.) Frugoli denied drinking the day of that accident and testified that the accident occurred after he skidded on a patch of ice and hit a curb. (Def. 56.1 ¶¶ 46-47.) CPD Sergeant Stacy Smith-Cotter investigated the crash. (Pl. SOAF ¶ 9.)

         At approximately 5:00 a.m. the next day, Frugoli was involved in another accident. This time, he was off-duty when he broadsided a CPD squad car at a high rate of speed, injuring Natalie Joritz and William Orsa, the two CPD officers inside. (Def. 56.1 ¶¶ 49-50, 52; Pl. SOAF ¶ 10.) Frugoli testified that this accident resulted when he reached for his cell phone and went through a stop sign. (Def. 56.1 ¶ 50.) Frugoli denied drinking before this accident, yet, he had spent the previous six hours at a casino, appeared glassy eyed to one of the police officers he struck, and failed to inquire about their condition, render aid, or call for assistance. (Def. 56.1 ¶¶ 51, 55; Dkt. 285-6 at 25; Pl. SOAF ¶ 11.) After Joritz and Orsa were taken to the hospital by ambulance, CPD Sgt. Smith-Cotter, the same officer who had responded to the accident just 24 hours earlier,, responded to the scene with two other officers who investigated the accident. (Def. 56.1 ¶ 53; Pl. SOAF ¶ 12.) Although Frugoli was cited for the accident, he remained in Smith-Cotter's squad car, and the officer who wrote the tickets gave them to Smith-Cotter, not to Frugoli directly. (Def. 56.1 ¶ 56; Pl. SOAF ¶ 13.) The officers investigating the accident never spoke with or observed Frugoli and did not administer any intoxication tests. (Pl. SOAF ¶ 35.)

         Smith-Cotter, who was the only CPD officer who spoke with Frugoli at the scene, testified that she did not test Frugoli for intoxication but stated that he did not smell of alcohol and did not appear to have been drinking. (Def. 56.1 ¶ 55.) Smith-Cotter eventually drove Frugoli home. (Pl. SOAF ¶ 13.) Neither the investigating officers nor the injured officers were ever notified of a court date for the tickets given to Frugoli. (Pl. SOAF ¶ 14.)

         During the course of his career, Frugoli was also the subject of eighteen complaints regarding his on-duty behavior. (Pl. SOAF ¶ 30.) These complaints comprised 43 distinct allegations for a variety of misconduct, including excessive use of force, verbal abuse, unprofessional behavior, and illegal search. (Dkt. 290-13 ¶ 22.) None of the complaints against Frugoli resulted in any CPD disciplinary action or were otherwise sustained by the CPD. (Reiter Dep. at 143:6-10.)

         When asked about the fatal accident involving Cazares and Manzera, Frugoli denied that his decision to drink and drive had anything to do with an absence of discipline from the CPD for any prior incident. (Def. 56.1 ¶ 62.) Frugoli also denied that there was any CPD policy that gave him reason to believe he could drink and drive. (Id. ¶ 63.) Frugoli testified that he believed that he had the same chances as any other intoxicated person of getting a DUI. (Id. ¶ 64.) Frugoli further testified that he knew of two other CPD officers who had been arrested for DUI and believed that one of the officers had been terminated as a result of the arrest. (Id. ¶¶ 58, 59.)

         In December 2015, Chicago Mayor Rahm Emanuel, publicly acknowledged that a code of silence exists within the CPD, and explained that the code includes “the tendency to ignore, deny or in some cases cover-up the bad actions of a colleague or colleagues.” (Pl. SOAF ¶ 37; Dkt. 290-18 at 69.) Additionally, the City created a Police Accountability Task Force to review the CPD's system of training, oversight, discipline, and transparency. (Pl. SOAF ¶ 40; Dkt. 290- 18.) The Task Force released a report with its recommendations for reform in April 2016. (Dkt. 290-18.) In its report, the Task Force “found that the code of silence is not just an unwritten rule, or an unfortunate element of police culture past and present. The code of silence is institutionalized and reinforced by CPD rules and polices that are also baked into the labor agreements between the various police unions and the City.” (Dkt. 290-18 at 70.) After briefing was concluded, on January 13, 2017, the Department of Justice and the U.S. Attorney's Office for the Northern District of Illinois published a report detailing their investigation of the CPD for alleged civil rights violations.[5] In its report, the DOJ found that “[i]nvestigative fact-finding into police misconduct and attempts to hold officers accountable are also frustrated by police officers' code of silence. The City, police officers, and leadership within CPD and its police officer union acknowledge that a code of silence among Chicago police officers exists, extending to lying and affirmative efforts to conceal evidence.” (DOJ Report at 8, 75-77.)

         I. CHICAGO'S DAUBERT MOTIONS

         In conjunction with their Motion for Summary Judgment, Chicago has moved to exclude the testimony of Plaintiffs' proposed expert witnesses: Kristi Allgood, Dr. Geoffrey Alpert, and Lou Reiter, who were all retained to provide evidence in support of the Plaintiffs' Monell claims. In responding to Chicago's Motion for Summary Judgment, Plaintiffs have relied on their experts' reports. As such, the Court will evaluate the admissibility of their opinions before addressing Chicago's Motion for Summary Judgment.

         EXPERT TESTIMONY 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 (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 (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, 809 (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 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.” Id. 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 (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, 536 (7th Cir. 2011). Rule 702 calls for a conjunctive test and thus expert testimony must meet all four 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.” Cage v. City of Chicago, 979 F.Supp.2d 787, 799 (N.D. Ill. 2013).

         Thus, as a practical matter, district courts apply the Daubert framework described above using a three-part analysis. Myers 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 Myers, 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 *2 n.1 (N.D. Ill. Jan. 18, 2013).

         DISCUSSION

         A. Chicago's Motion to Bar Kristi Allgood (Dkt. 272)

         Kristi Allgood was retained by Plaintiffs to analyze data related to CPD Complaint Registers (“CR”) from alcohol-related incidents involving CPD personnel and asked to determine whether: (1) CPD employees, and in particular Frugoli, had reason to believe in 2009 that they could drink and drive with impunity or without fear of meaningful punishment; and (2) a code of silence existed in the CPD. (Dkt. 279 at 3-4.) Ms. Allgood's report analyzes the CR data in a number of ways and answers both questions in the affirmative. Chicago argues that Ms. Allgood should be barred from testifying because: (1) she is unqualified to opine on these matters; (2) her methodology is unreliable; and (3) her testimony will not aid the trier of fact, nor will it determine a factual issue. (Dkt. 273 at 12-13.) For the reasons state below, Chicago's Motion to Bar Ms. Allgood is granted in part and denied in part.

         1. Ms. Allgood's Qualifications

         Ms. Allgood has a master's degree in public health from the University of Illinois at Chicago and a bachelor's of science degree in exercise science from Miami University. (Dkt. 279-1 at 1.) She has worked at Sinai Urban Health Institute since 2004 as an epidemiologist where she has collected, managed, and analyzed complex community healthcare data. (Id.; Dkt. 273-1 at 1.) Ms. Allgood has received professional training in statistics software and has provided technical guidance for data analysis to other researchers. (Dkt. 279 at 2-3; Dkt. 279-1 at 11.) Since 2009, Ms. Allgood has also performed data analysis for various civil rights attorneys, including four cases involving the CPD, at least one of which went to trial. (Dkt. 279 at 2; Dkt. 279-1 at 1; Pl. SOAF ¶ 16.) This data analysis included evaluating complaints against CPD officers, including for excessive force and DUI. (Dkt. 279-1 at 13.) In each of these cases she analyzed CR files and associated outcomes of internal investigations. (Id.) Despite her previous analytical work, Ms. Allgood has never been retained as an expert in any case involving the police, other than the instant one. (Id.) Aside from her prior work in civil rights litigation, Ms. Allgood does not have any background, education, publications, or experience in criminal justice, criminology, law enforcement, administrative investigations, or police practices. (Dkt. 273 at 3-4, 12.)

         2. Ms. Allgood's Data and Methodology

         Ms. Allgood characterized her report as a statistical one and asserts that she was retained for her expertise in data management and analysis. (Dkt. 273 at 5; Dkt. 273-1 at 1.) Plaintiffs' counsel provided her with eighty-five files, comprising sixty-five CR files involving DUI or alcohol related complaints against CPD personnel between May 10, 2003, and April 28, 2009, and all twenty CR files involving Frugoli. (Id. at 4-5.) The CR files ranged from nineteen to 1, 115 pages and included details about the investigations and also included evidence, communications, arrest reports, and other information. (Dkt. 279 at 3.) Ms. Allgood extracted certain data from the CR files using a data collection tool and then analyzed the data using a statistical software program called SAS. (Dkt. 279 at 8.) In analyzing and tabulating the data, Ms. Allgood employed the Wilcoxson signed-ranked test to compare medians and the Mantel- Haenszel chi-square test to compare percentages. (Id. at 3; Dkt. 273-1; Dkt. 273-3 at 27.) These tests indicate whether certain occurrences are statistically significant. Her statistical analysis compared the alcohol-related incidents in a variety of ways, including comparing alcohol-related incidents involving CPD officers that happened inside of the Chicago with those that occurred outside of the city. (Dkt. 273-1.) Ms. Allgood also categorized certain incidents as involving a “Failure to Report, ” where there is no evidence in the CR that the subject of the investigation filed a written report regarding the DUI allegation. (273-1 at 9.) In addition to all alcohol-related incidents involving CPD officers, Ms. Allgood also analyzed all complaints against Frugoli.

         3. Ms. Allgood's Opinions

         From her statistical analysis, Ms. Allgood determined that between May 2003 and April 2009, DUI complaints against CPD officers took a median of 557 days to complete. (Pl. SOAF ¶ 17.) DUIs issued against CPD officers in Chicago mostly occurred when there was a vehicular collision with injuries and rarely occurred following routine traffic stops, while most DUIs citations against CPD officers that occurred outside of Chicago were largely the result of routine traffic stops. (Allgood Dep. 240:12-240:17.) When CPD officers were arrested for DUI outside of Chicago, it took, on average, less than one hour for the administration of an intoxication test, while it took, on average, three and a half hours inside of Chicago. (Dkt. 273-1 at 17.) When the arresting officer knew that the arrestee was a CPD officer, it took more than twice as long to measure the level of intoxication (three and a quarter hours) compared to circumstances when the arresting officer was unaware of the arrestee's status with the CPD. (Dkt. 273-1 at 13.) In 2009, CPD officers were cited with DUI at less than 10% of the rate that the general population received DUIs. (Allgood Dep. 155:10-161:10.) Ten percent of the incidents that Ms. Allgood reviewed resulted in a DUI conviction, while more than 25% resulted in a guilty finding of a lesser charge, and 38% had an unknown disposition. (Dkt. 273 at. 13.) Ms. Allgood's analysis indicates that 81% of the CRs she reviewed had evidence of “Failure to Report, ” which primarily involved the arrested officer failing to report the incident. (Id.) Ms. Allgood also found that over 80% of the alcohol related CRs were administratively sustained against the officer. (Dkt. 273 at 5.) Of those complaints that were sustained, 46% of the officers received a final discipline consisting of thirty days or more suspension/separation, with 9% receiving no discipline, and 35% receiving less than thirty days of suspension/separation. (Dkt. 273 at 5.) Outside of the incident at the center of this lawsuit, there were eighteen complete CRs involving Frugoli. (Dkt. 273-1 at 19.) These CRs consisted of forty-three total allegations for conduct including excessive force, verbal abuse, unprofessional behavior, and illegal search. (Id.) None of the non-DUI complaints against Frugoli were sustained. (Id.)

         Based on her statistical analysis of the CR files, and the complaints filed against Frugoli, Ms. Allgood opined that CPD officers, including Mr. Frugoli had reason to believe that they could act with impunity. Additionally, Ms. Allgood concluded that there was a code of silence at the CPD based on her identification in many of the CRs that there were no communications indicating an administrative report of the alcohol related incident. (Dkt. 279 at 4.)

         4. Discussion

         i. The City primarily focuses its attack on Ms. Allgood's qualitative conclusions and largely does not challenge the results of Ms. Allgood's statistical analysis and tabulation of data. Chicago argues that Ms. Allgood lacks the background and qualifications to render her opinions, and that her conclusions were derived without scientific methodology and cannot be tested, rendering them unreliable. (Dkt. 273 at 12-13.) The City also challenges Ms. Allgood's opinions because they were solely based on the questions and data provided to her by Plaintiff's counsel. (Dkt. 273 at 13.) For the reasons discussed herein, Ms. Allgood's statistical analysis passes the threshold test of reliability under Daubert and Rule 702 but her conclusions regarding the existence of a code of silence in the CPD or that CPD officers felt they could drive with impunity do not.Ms. Allgood's Statistical Analysis

         As described above, the key questions in determining whether Ms. Allgood's statistical findings are admissible involve determining whether she is qualified to perform the analysis, whether her methodologies are reliable, and whether the results are relevant. Myers, 629 F.3d at 644; see also Fed.R.Evid. 702.

         Ms. Allgood is qualified to perform the statistical analysis. Ms. Allgood performed relatively basic statistical tests, which included extracting data from qualitative reports and running standard and widely accepted statistical tests on the data to determine whether certain patterns involving CPD internal investigations of alcohol-related incidents were statistically significant or due to chance. Ms. Allgood has advanced training in the use of statistics software, her job as an epidemiologist requires the regular analysis and evaluation of data, and she has performed similar analysis using similar data in the past, which was found to be admissible by other courts in this district. Furthermore, the City primarily attacks her qualitative conclusions, not her ability to perform basic statistics.

         Chicago also challenges the reliability of Ms. Allgood's statistical methodology in two ways: (1) her use of statistical software to perform her analysis; (2) her categorization of certain data as a “failure to report.” Chicago's attempt to undermine Ms. Allgood's statistical analysis because she employed statistics software is misplaced. Chicago asserts that “[t]he computer software . . . tells her if it statistically significant or not” and that “[i]t would not be any different from anyone who purchased the SAS software and did it themselves, ” insinuating that any lay person could perform the tests, while later arguing that she is unqualified to reach her conclusions. (Dkt. 273 at 5.) SAS, the software used by Ms. Allgood, is a widely-accepted statistics software program that is commonly used by statisticians to perform analyses. See, e.g., Obrycka v. City of Chicago, No. 07 C 2372, 2011 WL 2600554, at *4 (N.D. Ill. June 29, 2011).

         Further, Ms. Allgood received training in SAS and used it to run widely accepted and standard statistical tests: the Wilcoxson signed-ranked test to compare medians and the Mantel-Haenszel chi-square test to compare percentages. Her use of statistics software does not convert her testimony into that of a lay person but demonstrates widely accepted and reliable methodology. Indeed, it would be more surprising if she had failed to utilize statistics software to perform her analysis.

         The fact that Plaintiffs' counsel provided Ms. Allgood with her data or that she decided to categorize the data in certain ways, including creating a category of data titled “failure to report, ” does not render her methodology unreliable. “Reliability, however, is primarily a question of the validity of the methodology employed by an expert, not the quality of the data used in applying the methodology or the conclusions produced.” Manpower, Inc. v. Ins. Co. of Pennsylvania, 732 F.3d 796, 806 (7th Cir. 2013). “The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on summary judgment.” Id. (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)). As discussed above, her statistical methodology is sufficiently reliable to pass muster under Daubert and Rule 702, including the straightforward decision to create a category in the data called “failure to report” when certain information was missing in the CR.[6] The Seventh Circuit gives wide latitude to statisticians in employing “proven statistical methodolog[ies], ” such as those employed by Ms. Allgood. Id. at 808. As such, “the selection of the variables to include” in a statistical analysis “is normally a question that goes to the probative weight of the analysis rather than to its admissibility.” Id.; see also Bazemore v. Friday, 478 U.S. 385, 400 (1986) (reversing lower court's exclusion of statistical analysis based on its view that the analysis did not include proper selection of variables); Cullen v. Indiana Univ. Bd. of Trustees, 338 F.3d 693, 701 & n.4 (7th Cir. 2003) (citing Bazemore in rejecting challenge to expert based on omission of variables in statistical analysis). Her decision to rely on data provided by Plaintiffs' counsel can very well be a subject of cross-examination or the testimony of a rebuttal expert but it is not so egregious as to render her testimony inadmissible. Similarly, her classification of the lack of certain documentation as “failures to report” can also be explored during cross examination, as it was during her deposition.

         Lastly, the statistics found in Ms. Allgood's report are relevant to the Plaintiffs' case in chief. Statistical evidence that CPD officers under investigation for alcohol-related incidents were treated differently when investigated by CPD officers is relevant to establishing that a code of silence existed in the CPD. The fact that Frugoli had eighteen CRs and none of them were sustained could be relevant to the jury determining that he felt he could act with impunity as a result of the lack of investigation or discipline. Courts have regularly permitted similar types of statistical evidence when considering Monell claims, including in cases in which Ms. Allgood has performed analysis. See, e.g., Obrycka, 2011 WL 2600554, at *8 (admitting statistical analysis on which Ms. Allgood worked to support Plaintiff's Monnell claim that Chicago “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”). Additionally, statistical evidence of disparate treatment in other but analogous circumstances has been found to be highly relevant by the Seventh Circuit. See, e.g., Adams v. Ameritech Servs., Inc., 231 F.3d 414, 427 (7th Cir. 2000) (noting that “ruling out chance [in disparate treatment case] was an important step in the plaintiffs' proof, even if it was not a single leap from the starting line to the finish line”).

         ii. Ms. Allgood's Qualitative Opinions

         Although she is qualified to present her statistical analysis, Ms. Allgood lacks the foundation, expertise, background, or education to opine that CPD officers, including Frugoli, felt they could drive with impunity, and that there was a code of silence within the CPD. “‘Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony.'” Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010) (quoting Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990)). Ms. Allgood was retained for her expertise in data management and her analytic skills, and she characterizes her report as a statistical one. (Dkt. 272-1 at 2.) It is undisputed that outside of her prior litigation experience, Ms. Allgood has no training, knowledge, education, or experience regarding police departments, law enforcement policy, administrative investigations involving law enforcement, the CPD, or codes of silence. (Dkt. 273 at 3-4.) For these reasons, she lacks the foundation and expertise to support her qualitative conclusions. Courts, including this one, have regularly excluded testimony for similar reason. See, e.g., Cage v. City of Chicago, 979 F.Supp.2d 787, 831 (N.D. Ill. 2013) (finding that an expert who was qualified to conduct a technical review nevertheless lacked the “requisite knowledge, skill, experience, training, or education to consider the multitude of intervening factors” relevant to some of the opinions he proffered, and barred those opinions); Obrycka, 2011 WL 2600554, at *6 (accepting statistical analysis but rejecting qualitative conclusions of Dr. Whitman, an expert with whom Ms. Allgood worked, because “he knows nothing about police departments, police misconduct, investigations into police misconduct, or the process by which the CPD disciplines its police officers-the subjects that lie at the heart of this case”); United States v. Evans, 892 F.Supp.2d 949, 955-57 (N.D. Ill. 2012) ...


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