United States District Court, S.D. Indiana, Evansville Division
ORDER ON DEFENDANTS' MOTION TO STRIKE
WALTON PRATT, JUDGE
matter is before the Court on Defendants City of
Evansville's and Zachary Elfreich's (collectively,
“Defendants”) Motion to Strike the Expert Report
and Anticipated Testimony of Plaintiff's Expert Dr.
Christopher Chapman (“Daubert Motion”)
(Filing No. 149). Plaintiff Jamie Becker's
(“Becker”) claims for excessive force, battery,
and negligence against the Defendants are set for trial by
jury on November 29, 2016. The Defendants move to strike
Becker's expert report and to exclude his expert from
testifying at trial. For the following reasons, the
Defendants' Motion to strike is granted in part and
denied in part.
Rule of Evidence 702 governs testimony of expert witnesses.
An expert may testify regarding the ultimate issue in a case.
Fed.R.Evid. 704(a). Furthermore, an expert can base her
opinion on inadmissible evidence. F.R.E. 703. However,
“expert testimony as to legal conclusions that will
determine the outcome of the case is inadmissible.”
Good Shepherd Manor Found., Inc. v. City of Momence,
323 F.3d 557, 564 (7th Cir. 2003).
the Daubert gatekeeping requirement, the district
court has a duty to ensure that expert testimony offered
under Federal Rule of Evidence 702 is both relevant and
reliable.” Jenkins v. Bartlett, 487 F.3d 482,
488-89 (7th Cir. 2007) (citing Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999)). “Whether
proposed expert testimony is sufficiently reliable under Rule
702 is dependent upon the facts and circumstances of the
particular case.” Id. at 489. The Court is
given “latitude in determining not only how to measure
the reliability of the proposed expert testimony but also
whether the testimony is, in fact, reliable.”
Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010)
(citing Jenkins, 487 F.3d at 489).
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; and
(3) whether the theory has been generally accepted in the
scientific community.” Id. (citing Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94
(1993)). “The court should also consider the proposed
expert's full range of experience and training in the
subject area, as well as the methodology used to arrive at a
particular conclusion.” Id.
Since the gatekeeping inquiry must be tied to the facts of
the particular case, . . . a trial court may - but is not
required to - consider “one or more of the more
specific factors that Daubert mentioned when doing
so will help determine the testimony's
reliability.” But, the [Supreme] Court stressed, those
factors, which were meant “to be helpful, not
definitive, ” “neither necessarily nor
exclusively apply to all experts or in every case.”
Their applicability will depend on “‘the nature
of the issue, the expert's particular expertise, and the
subject of his testimony.'” The procedure employed
will depend largely on the “particular circumstances of
the particular case at issue.”
Richman v. Sheahan, 415 F.Supp.2d 929, 934 (N.D.
Ill. 2006) (quoting Kumho Tire, 526 U.S. at 142,
the district court must determine whether the proposed expert
testimony will assist the trier of fact in determining a fact
in issue or understanding the evidence. Chapman v. Maytag
Corp., 297 F.3d 682, 687 (7th Cir. 2002).
“Determinations on admissibility should not supplant
the adversarial process; ‘shaky' expert testimony
may be admissible, assailable by its opponents through
cross-examination.” Gayton, 593 F.3d at 616.
Vigorous cross examination, presentation of contrary evidence
and careful jury instructions . . . are the traditional and
appropriate means of attacking shaky but admissible evidence.
The rejection of expert testimony is the exception rather
than the rule, and the trial court's role as gatekeeper
is not intended to serve as a replacement for the adversary
Richman, 415 F.Supp.2d at 933 (citations and
quotation marks omitted).
is a resident of Evansville, Indiana. Defendant Zachary
Elfreich (“Officer Elfreich”) is a police officer
for the Evansville Police Department (“EPD”).
Defendant City of Evansville is a political subdivision of
the State of Indiana for which Officer Elfreich serves as a
police officer. Becker has asserted that Officer Elfreich
used excessive force in effectuating his arrest pursuant to
an outstanding arrest warrant. He further alleges that the
City of Evansville has demonstrated a custom and policy of
deliberate indifference to the constitutional rights of its
citizens. For purposes of ruling on the instant motion, the
Court relies on the following facts.
time of the incident between Becker and Officer Elfreich, the
City of Evansville had in effect a “Canine Unit
Policy” codified as Evansville Police Department
Standard Operating Procedure 359.03, wherein police dogs are
trained to bite and hold when apprehending a suspect and
further authorizes the dog's handler to unleash the dog
resulting in the dog not being under the officer's
complete control and within the line of sight of the officer.
The City of Evansville also has a policy and practice of
training their ...