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Becker v. City of Evansville

United States District Court, S.D. Indiana, Evansville Division

October 28, 2016

JAMIE BECKER, Plaintiff,



         This 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.


         Federal 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).

         “Under 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).

         “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; 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, 150, 152).

         Additionally, 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 system.

Richman, 415 F.Supp.2d at 933 (citations and quotation marks omitted).


         Becker 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.

         At the 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 ...

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