United States District Court, S.D. Indiana, New Albany Division
APRIL DAMIANI as Administrator for the ESTATE OF JOSE DAMIANI, JR., and on behalf of herself, Plaintiff,
MICHAEL ALLEN, BOBBY TROUTMAN, SHANE STAGGS, PAUL SUDING, TOWN OF WEST BADEN SPRINGS, and TOWN OF FRENCH LICK Defendants.
ENTRY ON THE PARTIES' MOTIONS TO EXCLUDE AND
LIMIT EXPERT TESTIMONY AND ON THE DEFENDANTS' MOTIONS FOR
RICHARD L. YOUNG, JUDGE
September 4, 2015, Trooper Michael Allen and Officer Robert
“Bobby” Troutman responded to a 911 call
concerning a domestic strangulation in French Lick, Indiana.
April Damiani, the 911 caller, summoned law enforcement to
help her husband, Jose Damiani, Jr., calm down after he had
been drinking and acting strangely. Unfortunately,
April's plea for help ended tragically: less than a
minute after arriving, the officers shot and killed Jose.
brought the present action alleging that the officers had
deprived Jose of his constitutional rights and had violated
Indiana law. She also alleges a variety of claims against
different police departments and some of the investigating
personnel. The parties have filed opposing Daubert
motions, and each Defendant has moved for summary judgment.
explained below, none of the proposed experts will be barred
from testifying, but certain opinions will be limited or
excluded. Plaintiff's claim of excessive force and
corresponding state law claims should be resolved by a jury,
but Defendants are entitled to summary judgment on her
remaining claims. Part I sets forth the background facts
related to Jose's death. Part II discusses the
Daubert motions. Part III provides the analysis and
resolution of each motion for summary judgment.
Events leading up to the shooting
1:15 p.m. on September 4, 2015, Plaintiff came home from work
and greeted Jose. (See Filing No. 136, Ex. T-3
Interview of April Damiani (“April Interview”) at
- 3:11). He was working in the backyard and had
been drinking prior to Plaintiff's arrival. (See
Id. at 3:20 - 3:30; April Dep. at 64:1 - 3). The two
finished their conversation, and Plaintiff returned to the
house to change out of work clothes. (April Interview at 3:29
- 3:33). At some point later in the afternoon,
Plaintiff's friend, Mimi Groff, drove her to the bank so
that Plaintiff could cash her check from work. (Id.
at 3:40 - 3:56).
Plaintiff returned home from the bank, Jose had become
intoxicated. (Id. at 4:20 - 4:45). He had consumed a
portion of a pint of vodka and four beers from a
six-pack-both of which he had purchased earlier that day.
(Id.). She tried to have a conversation with him,
but his behavior was noticeably erratic. (Id. at
5:05 - 5:40). At one point, Jose was upset with Plaintiff
explaining that she and the children were ungrateful.
(Id.). At another point, Jose stood up and gave
Plaintiff a hug and told her that he loved her.
(Id.). Eventually, something “flipped his
switch to crazy.” (Id. at 6:00 - 6:17). Jose
stood up and began choking Plaintiff. (Id.). After a
brief struggle, Jose told Plaintiff to call the police, and
he exited the house to the backyard. (Id. at 6:18 -
6:22). Plaintiff went to the bathroom and called 911.
(Id. at 6:34 - 6:37). She told the operator that her
husband had choked her and that he had been drinking.
(Id. at 6:41 - 6:46).
Response from law enforcement
town, West Baden Springs Officer Bobby Troutman and Indiana
State Trooper Michael Allen were side-by-side in their patrol
cars talking. (Filing No. 146-5, Deposition of Michael Allen
(“Allen Dep.”) at 129:7 - 14). They had just
finished handling a previous situation at a local gas
station. (Filing No. 130-1, Affidavit of Bobby Troutman
(“Troutman Aff.”) at 2, ¶ 6). Because of the
limited number of officers on staff at each police
department, West Baden Springs police officers frequently
respond to situations in French Lick, Indiana and vice
versa. (Id. ¶ 7). It is also common
for each department to receive assistance from the Indiana
State Police. (Id.).
Trooper Allen was about to go to another county, Officer
Troutman received a 911 call over the Orange County dispatch
concerning a domestic dispute at 8399 West Ohio Street in
French Lick, Indiana-the Damiani residence. (Id.
¶¶ 6, 10). Trooper Allen also heard the dispatch
because he has a county radio installed in his patrol car.
(See Allen Dep. at 131:2 - 10). The dispatch
I have a pending 1016 . . . Clear signal eight address of
8399 West Ohio Street. 8399 West Ohio Street, Damiani
residence. The female advised her husband 1056 attempted to
strangle her. She's now in the bathroom. Also advised
there are small children there. He's out in the shed at
(Filing No. 130-2, Orange County Dispatch Transcript at 2:7 -
15). A “1016” is a domestic disturbance, and
“1056” means the individual is intoxicated.
(Allen Dep. at 122:19 - 25, 123:1 - 11). Officer Troutman
interpreted “pending 1016” as a strangulation in
progress. (Troutman Aff. at 2, ¶ 8). Trooper Allen
decided to assist Officer Troutman, and so both officers
drove to the Damiani residence. (Id. ¶ 10);
(Allen Dep. at 133:1 - 19). The officers were en
route at 3:52 p.m. and arrived at 3:53 p.m. (Troutman
Aff. at 2, ¶ 13).
Allen ascended the porch with Officer Troutman right behind
him. (Filing No. 146-3, Deposition of Officer Troutman
(“Troutman Dep.”) at 43:1 - 7). After the
officers' knocked and announced their presence, Plaintiff
answered the door and told the officers Jose was out back.
(Allen Dep. at 211:13 - 17); (April Interview at 7:07 -
7:11). She directed them to go around the side of the house.
(See Allen Dep. at 215:1 - 7, 219:1 - 15). While the
officers were moving around the side of the house, they heard
metal clanking sounds emanating from the backyard. (Troutman
Aff. at 3, ¶ 16). Trooper Allen told Officer Troutman to
get his taser ready. (Id.). Plaintiff had gone
through the house and now was standing on a hill as the
officers arrived in the backyard. (See April Dep. at
92:15 - 25, 93:1 - 13). The officers shouted Jose's name
twice as the metal clanking sounds continued. (April
Interview at 7:11 - 7:13); (Allen Dep. at 231:2 - 9).
exactly happens next is disputed. The officers explain that
they saw a male subject moving around and working in the
shed. (Troutman Aff. at 3, ¶ 17; see Allen Dep.
at 233:17 - 24). The officers then asked Jose to come out and
show his hands, but Jose did not respond. (Troutman Aff. at
3, ¶ 18; Allen Dep. at 232:15 - 22). When Jose finally
emerged, he was holding a five-foot iron pipe down by his
side, staring at Officer Troutman. (Troutman Aff. at 3,
¶¶ 19, 20; Allen Dep. at 238:24 - 25, 239:1 - 5).
He began walking toward Officer Troutman, ignoring orders to
drop the pipe. (Troutman Aff. at ¶ 21; Allen Dep. at
243:19 - 25, 244:1 - 23, 247:16 - 18). Jose then raised the
iron pipe above his head as if to strike Officer Troutman.
(Troutman Aff. at ¶ 22). When Jose was
approximately eight feet away, Officer Troutman fired his
taser. (Id. at 4, ¶ 23). The taser was
ineffective, and so Jose continued moving forward.
(Id. ¶ 25; Allen Dep. at 282:6 - 22). Officer
Troutman then pulled out his firearm and fired one shot from
his hip, while at the same time, Trooper Allen fired six
times in rapid succession. (Id. at 5, ¶¶
32, 34; Allen Dep. at 273:16 - 25, 274:1 - 4). Jose was
struck by six shots, all of which were fatal. (See
Filing No. 146-16, Autopsy Report at 2).
Plaintiff presents a very different account. She explains
that Jose was working in the shed with the radio on. (April
Dep. at 123:9 - 12). When the officers reached the backyard,
Officer Troutman yelled Jose's name, and he appeared
inside the shed holding an iron pipe. (Id. at 124:13
- 24). As Jose was walking out of the shed, but before he
reached the doorway, one shot was fired. (Id. at
141:11 - 22). After the first shot was fired, Jose continued
to walk forward and stepped out of the shed. (Id. at
126:5 - 6; 142:4 - 20). Six more shots were then fired, and
Jose collapsed over. (Id. at 130:17 - 21). The
officers did not fire the taser before shooting Jose.
(See April Interview at 7:22 - 7:37; see
Filing No. 146-52, Officer Troutman's Taser Log at 20)
(noting taser was deployed at 3:58 p.m. which was
approximately four minutes after shooting). At no time did
Jose lunge at the police officers or raise the pipe in a
threatening manner. (April Dep. at 130:3 - 16; Filing No.
146-8, Rex Martin Dep. Ex. at 1, ¶ 4; Filing No. 146-10,
Morgan Wilcoxen Dep. Ex. 2 at 1 ¶ 4).
Events post-shooting and subsequent investigation
after the shooting, Officer Troutman advised dispatch that
shots had been fired and requested an ambulance. (Troutman
Aff. at 5, ¶ 37). He also advised that he had deployed
his taser, and it was ineffective. (Id.). Trooper
Allen told Officer Troutman not to move or touch anything
until others arrived to the scene. (Troutman Dep. at 105:24 -
25, 106:1 - 2). Soon after the shooting, the officers heard
screaming from neighbors behind them. (Allen Dep. at 155:15 -
25). One of these neighbors, Morgan Wilcoxen, came out of her
house to see what had happened. (Wilcoxen Dep. Ex. 2 at 2
¶ 5). The officers told her “to take [her] ass in
the house before [she got] shot.” (Id.). Rex
Martin, another neighbor, approached officers but was told
“to get back in the house before [he] get[s]
shot.” (Martin Dep. Ex. at 2, ¶ 5; see
also Troutman Dep. at 108:13 - 15). During this time,
neither officer checked Jose or administered first-aid.
(See Id. at 106: 6 - 10); (Allen Dep. at 155:15 -
five minutes, an ambulance arrived at the scene, and
paramedics tended to Jose. (Troutman Aff. at 5, ¶ 38).
Michael Owen, a paramedic with IU Health Emergency Medical
Transport Services, along with others, administered chest
compressions, bag valve mask ventilations, and multiple IVs
to try and resuscitate Jose. (Filing No. 130-15, Deposition
of Michael Owen at 10:1 - 2, 45:5 - 20; 104:14 - 18). After
Jose had been in a pulseless electrical activity rhythm for
thirty minutes and noticing no return of pulse, Owen
discontinued resuscitation at the direction of the ER doctor.
(Id. at 54:3 - 14).
after medical personnel arrived to the scene, other law
enforcement personnel arrived. (See Allen Dep. at
161:6 - 16). Trooper Allen and Officer Troutman were escorted
away and taken separately back to French Lick Police
Department. (Allen Dep. at 152:12 - 20, 166:18 - 21, 169:7 -
20); (Troutman Dep. at 134:8 - 19, 138:2 - 6). Mark Green,
the lead crime scene investigator, drove to the police
department and collected both officers' clothes and
weapons. (See Filing No. 146-15, Report of Mark
Green at 1). Green then drove to the Damiani residence to
collect additional evidence, which included the taser's
wires, Jose's clothes, and the iron pipe. (Id.
Staggs, a detective with the Indiana State Police, was
assigned as the lead detective of the investigation shortly
after the shooting. (Filing No. 146-20, Deposition of Shane
Staggs (“Staggs Dep.”) at 6:10 - 13, 171:23 - 24,
172:1 - 13). After arriving to the scene, he met with crime
scene technicians. (Filing No. 146-33, Deposition of Mark
Green (“Green Dep.”) at 203:4 - 15). Staggs told
the crime scene technicians the officers' account of what
had happened. (Id. at 204:8 - 22). He also
interviewed Groff, who was inside the house during the
shooting. (Staggs Dep. at 85:24, 86:1 - 6).
point before the crime scene was released, Staggs was
relieved of his duties as lead detective. (Staggs Dep. at
113:8 - 12, 176:18 - 24; Filing No. 146-19, Deposition of
Stacy Brown at 178:5 - 25, 179:1 - 22). Paul Suding assigned
the investigation to Stacy Brown, a detective from another
district. (Id.). Paul Suding is the District
Investigative Commander for Indiana State Police's
Bloomington District. (Filing No. 134-14, Deposition of Paul
Suding at 40:20 - 24). Accordingly, Staggs did not further
investigate the shooting, with the exception of a follow-up
interview with EMT Owen-a task which he was assigned
approximately two months later. (Staggs Dep. at 102:12 - 18,
130:7 - 10, 177:7 - 17).
April 4, 2016, Plaintiff brought the present action. On
November 15, 2016, she filed an Amended Complaint (Filing No.
59), which is now the operative pleading.
September of 2017, each defendant moved for summary judgment.
(Filing Nos. 128, 131, and 133). Plaintiff and Defendants
then filed Daubert motions seeking to exclude or
limit the testimony of the opposing experts. (Filing Nos.
163, 165, 166, and 167). All of the motions are fully briefed
and ripe for decision.
often the case in excessive force disputes, each side has
presented expert witnesses. See Lapsley v. Xtek,
Inc., 689 F.3d 802, 808 - 809 (7th Cir. 2012) (noting
that determining the true facts of a case often requires
expert knowledge). The court must therefore first determine
what expert testimony is admissible before resolving the
motions for summary judgment. See Estate of Robinson ex
rel. Irwin v. City of Madison, No. 15-cv-502-jdp, 2017
WL 564682, at *7 (W.D. Wis. Feb. 13, 2017).
Rule of Evidence 702 and the Supreme Court's decision in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993) establish the framework for analyzing the
admissibility of expert testimony. Naeem v. McKesson Drug
Co., 444 F.3d 593, 607 (7th Cir. 2006). Expert witnesses
and their testimony must satisfy four requirements under Rule
(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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. The district court is initially charged as
a gatekeeper to determine whether a qualified expert's
opinions are sufficiently reliable and relevant. See
Daubert, 509 U.S. at 589 - 592; Lapsley, 689
F.3d at 809.
expert's opinions are sufficiently reliable when they are
based on a sound methodology and can be properly applied to
the facts. See Daubert, 509 U.S. at 592 - 93. This
inquiry is “necessarily flexible” and the court
has broad latitude in its determination of reliability.
Robinson, 2017 WL 564682 at *8. At a bare minimum,
though, the expert must be able to “explain the
‘methodologies and principles' that support his
opinion.” Metavante Corp. v. Emigrant Sav.
Bank, 619 F.3d 748, 761 (7th Cir. 2010) (quoting
Minix v. Canarecci, 597 F.3d 824, 835 (7th Cir.
expert's opinions must also be relevant.
Lapsley, 689 F.3d at 809. This means the testimony
must “help the jury understand a matter beyond the
knowledge and experience of a layperson.”
Robinson, 2017 WL 564682, at *8 (citing
Daubert, 509 U.S. at 591 - 592).
Dennis K. Waller
has offered Dennis K. Waller as an expert in law enforcement
policy, practices, and procedures. (See Filing No.
163-1, Expert Report of Dennis Waller (“Waller
Rep.”)). Waller has a bachelor's degree in police
administration from Michigan State University and a
master's degree in public administration from Florida
International University. (Id. at 1). He has over
3600 hours of law enforcement training and has served as a
police officer, field training officer, detective, sergeant,
lieutenant, department training officer, and chief.
(Id. at 1 - 2).
offers a number of opinions on Trooper Allen's and
Officer Troutman's actions. (Id. at 5 - 15). He
opines that the use of deadly force by both officers was
extremely excessive, their actions deviated from nationally
accepted standards of police practices, they recklessly
approached the situation without obtaining more information,
they conspired to present a “sanitized” version
of the events to the public in order to avoid scrutiny, and
the officers inexcusably failed to provide medical care to
Jose after the shooting. (See id.).
Allen and Detective Staggs (collectively the “State
Defendants”) have moved to exclude Waller's
testimony entirely, arguing that his analysis lacks a
coherent methodology and that his conclusions rest
exclusively with the jury. (See Filing No. 164, State
Defendants' Brief in Support of Motion to Exclude, at 4 -
their first challenge, Waller's methodology consists of
developing an understanding of the facts, analyzing the
actions of the police officers, comparing those actions with
the standards of police training and practice, and finally,
explaining any consistencies or inconsistencies. (Waller Rep.
at 2 - 3). The State Defendants argue that this is not a
“testable” methodology. That may be correct
insofar as Waller's methodology is not a product of the
scientific method, but it is well established that experts
may base their opinions on experience. See Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 148 - 149 (1999).
There is nothing unreliable about Waller's methodology:
he familiarizes himself with the facts, draws conclusions
based on his knowledge and experience, and then explains
those conclusions. Robinson, 2017 WL 564682, at *10
(finding Waller's methodology sufficiently reliable). The
State Defendants rely on cases that have excluded
Waller's testimony, but those cases have primarily
excluded his testimony for reasons other than a flawed
methodology. E.g. Davis v. Duran, 277 F.R.D. 362,
367 (N.D. Ill. 2011) (“Mr. Waller's opinions in
this case are either irrelevant, go beyond his expertise, are
conclusory, or would not be helpful to the jury.”).
their second challenge, the State Defendants' argument is
more persuasive. Expert witnesses may not draw legal
conclusions. United States v. Sinclair, 74 F.3d 753,
757 n. 1 (7th Cir. 1996) (stating experts cannot testify
about legal issues on which the judge will instruct the
jury). Permitting such testimony “may cause the jury to
accord too much weight to that testimony, and may infer that
the jury should look to that witness for legal
guidance.” Naeem, 444 F.3d at 610 (citations
of Waller's opinions are problematic because they are
legal conclusions and would not be helpful to the jury.
First, Waller is not permitted to testify that Trooper Allen
and Officer Troutman used excessive force (first opinion).
Thompson v. City of Chicago, 472 F.3d 444, 458 (7th
Cir. 2006) (upholding district court's decision to
exclude expert testimony in excessive force case because
“[i]ntroducing two experts to testify that Officer
Hespe used excessive force would have induced the jurors to
substitute their own independent conclusions for that of the
experts”); see also In re Estate of Lee v. City of
Washington, No. 3:09-cv-00016-RLY-WGH, 2010 WL 4778725,
at *3 (S.D. Ind. Nov. 16, 2010) (“[A]n expert's
opinion that a defendant law enforcement officer used
unreasonable or unnecessary force is an impermissible legal
conclusion and should be excluded.”) (citation
omitted). Likewise, Waller is also not permitted to testify
that the officers and detectives conspired to present a
“sanitized” version of the events to avoid public
scrutiny (fourth opinion). This opinion is not relevant to
proving plaintiff's conspiracy to use excessive force
claim because the alleged conspiring acts came after the
shooting. To the extent that it is relevant to prove
Plaintiff's right to judicial access claim, the opinion
is not helpful: a jury is more than capable of hearing the
evidence and determining whether law enforcement covered up
the shooting. See Naeem, 444 F.3d at 610 (citations
omitted). Lastly, Waller is not permitted to testify that the
officers failed to provide Jose medical care (fifth opinion).
This is a legal question, and permitting this opinion would
invite the jury to decide the case on an improper basis.
See Thompson, 472 F.3d at 458.
Waller will be permitted to testify that the officers
deviated from generally accepted police practices (second
opinion). Whether the officers violated accepted police
practices does not determine the outcome of Plaintiff's
constitutional claims. See Naeem, 444 F.3d at 610.
It will also be helpful for the jury to hear what constitutes
generally accepted police practices since the case involves
both the use of a taser and a firearm. See Kennedy v.
Schlosser, No. C11-1032, 2012 WL 6128439, at *4 (N.D.
Iowa Dec. 10, 2012) (finding that Waller could testify
generally regarding proper police practices but could not
testify that the officers' actions constituted excessive
force). Additionally, Waller may testify that the officers
recklessly approached the situation without first gathering
information (third opinion). This opinion helps the jury by
providing them with context concerning the events leading up
to the shooting. Williams v. Indiana State Police
Department., 797 F.3d 468, 483 (7th Cir. 2015),
cert. denied, 136 S.Ct. 1712 (2016) (citation
omitted) (“The sequence of events leading up to the
seizure is relevant because the reasonableness of the seizure
is evaluated in light of the totality of the
as a housekeeping matter, the State Defendants argue that
Waller resolves credibility issues by opining on the
credibility of the officers. “Determining the weight
and credibility of witness testimony” is a
responsibility that “belongs to the jury.”
United States v. Scheffer, 523 U.S. 303, 313 (1998)
(citation omitted). Though Waller may have opinions different
than those of the officers, he is precluded from opining on
their credibility, or any other witness for that matter. This
prohibition applies to all of the parties' witnesses.
Jonathan Arden, MD
has designated Dr. Arden as an expert in forensic pathology.
(See Filing No. 163-2, Expert Report of Jonathan
Arden). Dr. Arden received his doctor of medicine from the
University of Michigan in 1980 and has been certified in both
anatomic and forensic pathology by the American Board of
Pathology since 1985. (Id. at 1). He is currently
licensed to practice medicine in four different states and
has spent the better part of his career as a
government-employed medical examiner. (Id.).
Arden's report contains five opinions, but the court will
only discuss the one that is being challenged by the State
Defendants: his analysis of the bullet trajectories. (See
Id. at 5 - 6). Dr. Arden opines that the autopsy
evidence and Trooper Allen's statement of Jose's body
positioning are inconsistent. (Id.). He explains
Jose's arm could not have been positioned as Trooper
Allen demonstrated in his video deposition based on the
bullet trajectory of one of the gunshots. (Id. at
6). The State Defendants argue that this opinion goes beyond
his scope of expertise as a forensic pathologist.
court disagrees. It is within a forensic pathologist's
expertise to opine on the manner in which fatal gunshots
entered the body. McKinney v. Duplain, No.
1:04-cv-294-RLY-TAB, 2007 WL 1128852, at *5 (S.D. Ind. Apr.
16, 2007) (finding forensic pathologist competent to testify
as to deceased's body position when struck with bullets);
Robinson, 2017 WL 564682 at *11 - 12 (permitting Dr.
Arden to opine on bullet trajectories). Dr. Arden's
qualifications and experience also permit him to compare the
physical evidence with the officer's account of the
shooting. Taylor v. Shields, No. 13-2241, 2017 WL
2633427, at *10 (E.D. Pa. June 19, 2017 (“Dr.
Arden's medical background qualified him to opine as to
the trajectory of the bullet inside the human body and his
training as a forensic pathologist, along with his extensive
experience with gunshot cases, qualified him to opine as to
the path of the bullet trajectory.”). Moreover, while
there may be discrepancies between the conclusions of the
State Defendants' expert and Dr. Arden, those
discrepancies go towards the weight of the testimony, not the
admissibility. See United States v. Al-Awadi, 873
F.3d 592, 600 (7th Cir. 2017).
Dr. Arden is permitted to offer his opinion on the bullet
has designated Samuel Marso as an expert in forensic science
with specialties in firearm and tool mark identification as
well as crime scene investigation and shooting scene
reconstruction. (See Filing No. 163-4, Expert Report
of Samuel Marso). Marso has over has 15 years of experience
leading laboratory and field investigative operations in
support of law enforcement agencies. (Id. at 1). He
is certified by the Colorado Bureau of Investigation in
firearm and tool mark examiner training, and he is also
trained as a forensic photographer and crime scene
reconstructionist. (Id.). He has received
specialized training and certification in firearm
instruction, including Glock and Sig Sauer pistols-the
firearms used in this case. (Id.).
opines that the officers' stated location when they shot
Jose is inconsistent with the forensic evidence-namely the
location of the firearm casings. (See Id. at 4 - 5).
He further explains that the officers were not within
striking distance, even assuming Jose was threatening the
officers. (Id. at 4). The State Defendants argue
that this opinion is not reliable because Marso did not
examine or test the actual firearms and ammunition that were
used. They also argue that examining similar firearm ejection
patterns is not a sufficiently reliable methodology.
State Defendants' arguments go to the weight of
Marso's testimony, not the admissibility. First, there is
no requirement that an expert test the exact product
or item; an expert who has tested similar ones may be
sufficiently qualified under Daubert. See e.g.
Jones v. National Cart Co., Inc., No. 12-1186, 2015 WL
5050265, at *2 - 3 (C.D. Ill. Aug. 26, 2015) (finding expert
reliable where he had tested similar carts but not the exact
cart at issue). Second, while the State Defendants argue that
the use of ejection casing patterns to determine a
shooter's location is fraught with uncertainty and has
not been peer-reviewed or generally accepted, this ignores
Marso's experience as a reconstruction
specialist. Schultz v. AkZo Nobel Paints, LLC, 721
F.3d 426, 431 (7th Cir. 2013) (citation omitted) (noting that
Daubert's guideposts apply to scientific
experts, but experiential experts are also permissible).
Marso's combined experience with firearms- including the
Glock and Sig Sauer firearms used in this case-and with crime
scene reconstruction qualifies him to opine on any
inconsistencies between the forensic evidence and the
officers' account of the shooting, even if his opinions
are not infallible. Robinson, 2017 WL 564682, at *12
- 13 (finding Marso qualified to render opinion on location
of officer when shots were fired); Gayton v. McCoy,
593 F.3d 610, 616 (7th Cir. 2010) (noting even
“shaky” expert testimony may be admissible). As
such, Marso is permitted to offer his opinion.
Jayme Albin, LCSW
last expert witness the State Defendants challenge is Jayme
Albin. (See Filing No. 163-6, Plaintiff's
Supplemental Rule 26(a)(2) Disclosures
(“Plaintiff's Sup. Disclosures”)). Albin has
a bachelor's degree in Psychology from Purdue University
and a master's degree in Social Work from Indiana
University. (Filing No. 174-3, CV of Jayme Albin). She has
one year of experience as a social worker at IU Health Arnett
in Lafayette, Indiana and three years of experience as a
licensed clinical therapist at Southern Hills Counseling
Center in Paoli, Indiana. (Id.).
served as one of Plaintiff's treatment providers, and so
Plaintiff has designated Albin as a non-retained expert
witness under Rule 26(a)(2)(C). Accordingly, Plaintiff has
only disclosed the subject matter of Albin's testimony
and a brief summary of her facts and opinions. See
Fed. R. Civ. P. 26(a)(2)(C). Albin plans to testify about her
observations during Plaintiff's counseling sessions after
the shooting. The State Defendants seek to exclude, or at
least limit, her testimony because (1) she was disclosed
after Plaintiff's expert deadline, (2) the summary
provided is not adequate, and (3) she is not qualified to
make a diagnosis of Post-Traumatic Stress Disorder (PTSD).
true that Plaintiff disclosed Albin one month after the
deadline, the disclosure was delayed, at least in part, by an
earlier discovery dispute that was not resolved until June
16, 2017, and so the late disclosure was substantially
justified. (See Filing No. 93); see Fed. R.
Civ. P. 37(c)(1). In any event, the one month delay was
harmless as the State Defendants had adequate time to prepare
a rebuttal witness if necessary. See Mid-America
Tablewares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d
1353, 1363 (7th Cir. 1996) (citation omitted) (“The
determination of whether a Rule 26(a) violation is justified
or harmless is entrusted to the broad discretion of the
State Defendant's contention that Albin's summary
disclosure is inadequate is likewise unpersuasive. With
respect to a non-retained expert, a party need only disclose
the subject matter of the expert's testimony and a
summary of the facts and opinions to which the expert is
expected to testify. See Fed. R. Civ. P.
26(a)(2)(C). While Albin's disclosure could have included
more information, it is sufficient under Rule 26(a)(2)(C).
The disclosure explains that Albin will testify to matters
reflected in her notes and reports contained within
Plaintiff's counseling records (which were produced).
(Plaintiff's Sup. Disclosures at 1). She will also
testify about her observations during Plaintiff's
counseling sessions. This ...