United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Judge United States District Court.
pending before the Court is Plaintiff Nathan Phillips'
Motion to Strike Defendants' Expert Witness Report and to
Exclude the Professed Expert Testimony of Jeffrey A.
Patterson. [Filing No. 71.] Mr. Phillips claims that
on June 20, 2016, Defendant Julian C. Wilkerson tendered an
“Expert Witness Report” of Officer Jeffrey A.
Patterson who is currently employed by the Indianapolis
Metropolitan Police Department (“IMPD”).
[Filing No. 72 at 1.] Mr. Phillips moves to strike
that report and exclude Officer Patterson from testifying at
trial as an expert. [Filing No. 72 at 1.] Detective
Wilkerson has filed a Response in Opposition to
Plaintiff's Motion to Strike, [Filing No. 73],
and Mr. Phillips has filed a Reply in Support of Motion to
Strike Expert Witness Report and to Exclude the Proffered
Testimony of Jeffery A. Patterson, [Filing No. 74].
For the reasons stated below, the Court GRANTS Mr.
factors the Court must consider in determining the
admissibility of expert testimony are governed by Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 592-95 (1993). “Expert
testimony is admissible when the testimony is reliable and
would assist the trier of fact to understand the evidence or
determine a fact at issue in a case.” Lewis v.
CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009)
(citing Fed. R. Evid. 702; Daubert, 509 U.S. at
589-91). The proponent of the expert bears the burden of
demonstrating that the expert's testimony is admissible
by a preponderance of the evidence. Lewis, 561 F.3d
at 705; Fed.R.Evid. 702 advisory committee's note (2000
Amendments) (“[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.”). The Court has
“great discretion” regarding the manner in which
it evaluates the applicable factors. Lewis, 561 F.3d
Daubert and Rule 702, courts use “a three-step
analysis: the witness must be qualified as an expert by
knowledge, skill, experience, training, or education; the
expert's reasoning or methodology underlying the
testimony must be scientifically reliable; and the testimony
must assist the trier of fact to understand the evidence or
to determine a fact in issue.” Ervin v. Johnson
& Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007)
(citing Daubert and Rule 702). In determining
reliability, Daubert “sets forth the following
non-exhaustive list of guideposts: (1) whether the scientific
theory can be or has been tested; (2) whether the theory has
been subjected to peer review and publication; or (3) whether
the theory has been generally accepted in the scientific
community.” Ervin, 492 F.3d at 904 (citing
Daubert, 509 U.S. at 593-94).
Phillips argues that Officer Patterson does not qualify as an
expert because he does not meet the standards for
admissibility set forth by Federal Rule of Evidence 702 and
the criteria set forth in Daubert. [Filing No.
72 at 2-3.] He claims that Detective Wilkerson has
failed to identify Officer Patterson's qualifications and
credentials as an expert, and that his experience in law
enforcement does not qualify him to give an opinion regarding
whether Detective Wilkerson used excessive force. [Filing
No. 72 at 4-5.] He claims that there is no evidence that
Officer Patterson used scientific methodology in forming his
opinions, that his methodology is accepted by intellectual
rigor, or that he has formal legal training. [Filing No.
72 at 5.] Lastly, Mr. Phillips contends that Officer
Patterson's opinions are “nothing more than his own
subjective beliefs.” [Filing No. 72 at 5.]
response, Detective Wilkerson argues that Officer
Patterson's expert testimony is admissible. [Filing
No. 73 at 1.] He claims that he filed an expert report
that contains Officer Patterson's qualifications and that
Officer Patterson is fully aware of the facts of the case.
[Filing No. 73 at 1.] He further claims that Officer
Patterson has nearly two decades of experience with the IMPD
and that his testimony would help the jury understand the use
of force in this case. [Filing No. 73 at 2-3.]
Lastly, he argues that Mr. Phillips' claim that Officer
Patterson's testimony is biased is not enough to strike
it altogether given that there are other conventional methods
that could be used, such as cross-examination, as appropriate
safeguards. [Filing No. 73 at 3.]
reply, Mr. Phillips claims that Detective Wilkerson has not
offered any substantive responses to his arguments.
[Filing No. 74 at 1.] He argues that Detective
Wilkerson's witness report fails to comply with nearly
all of the requirements of Federal Rule of Civil Procedure
26(a)(2)(B). [Filing No. 74 at 2-3.] In particular,
he claims that the report contains an opinion without
pinpoint citations to the record, that it does not list the
relevant authority or the methodology that he claims he used,
that it fails to assess “each stage of the
encounter” between Detective Wilkerson and Mr.
Phillips, and that it does not contain his qualifications or
relevant court cases where he testified as an expert.
[Filing No. 74 at 3-4.] He further reiterates that
Officer Patterson's testimony is not reliable and that
the risk of prejudice and confusion to the jury would far
outweigh any probative value. [Filing No. 74 at
outset, the Court agrees that Officer Patterson's report
fails to comply with Federal Rule of Civil Procedure
26(a)(2)(B), which sets forth the requirements that a party
must disclose to the opposing party in a written report if it
retains an expert witness to assist in the case. In
particular, the report does not provide the basis or reasons
that support Officer Patterson's opinion; second, it does
not list any exhibits that Officer Patterson will use to
summarize or support his opinion; third, although the report
contains a vague list of his qualifications, it does not
contain a list of all publications that Officer Patterson
authored in the previous ten years; lastly, it does not
provide a statement of the compensation that Officer
Patterson will be paid for the testimony in this case.
See Fed. R. Civ. Proc. 26(a)(2)(B)(i), (iii),
(iv), (vi). These procedural deficiencies alone support
provide sufficient basis to grant Mr. Phillips' Motion to
the Court will address the substantive objections raised by
Mr. Phillips. Following the standard set forth above, the
Court will first determine whether Officer Patterson
qualifies to testify as an expert. Officer Patterson's
report states that he has eighteen years of experience as a
police officer and it contains a list of his qualifications
and another list of his accomplishments. [Filing No.
71-1.] Although testimony from an expert whose knowledge
is based on experience is admissible, Metavante Corp. v.
Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010),
his listed qualifications and accomplishments contain no
description and shed no light on what makes him an expert
qualified to testify in cases relating to whether an officer
used excessive force. As Mr. Phillips contends, Detective
Wilkerson does not provide further documentation, such as
Officer Patterson's curriculum vitae, publications, or
other academic credentials, that help support his credentials
as an expert. Thus, the Court finds that Detective Wilkerson
has not provide a sufficient basis to establish that Officer
Patterson is qualified to testify as an expert.
Officer Patterson's opinion contains no reliable basis.
His report has a section called “Materials
Studied” that he reviewed when he drafted his opinion.
[Filing No. 71-1 at 3.] The list includes court
orders and documents related to the underlying federal case.
However, each listing has no explanation or description, and
it appears that the materials are not based on any
methodologies or principles. He then begins his opinion by
stating, “After reviewing the Materials Studied[, ] it
is my opinion that the officers used appropriate levels of
force on Mr. Phillips.” [Filing No. 71-1 at
5.] This is not admissible expert testimony. An
expert's testimony must explain the methodologies and
principles that support his or her opinion; he cannot simply
assert a “bottom line” conclusion. Metavante
Corp., 619 F.3d at 761 (quoting Minix v.
Canarecci,597 F.3d 824, 835 (7th Cir. 2010)). Moreover,
the testimony may not ...