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Damiani v. Allen

United States District Court, S.D. Indiana, New Albany Division

August 28, 2018

APRIL DAMIANI as Administrator for the ESTATE OF JOSE DAMIANI, JR., and on behalf of herself, Plaintiff,
v.
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 SUMMARY JUDGMENT

          RICHARD L. YOUNG, JUDGE

         On 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.

         April 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.

         As 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.

         I. Background

         A. Events leading up to the shooting

         Around 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 3:00[1] - 3:11).[2] 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).

         When 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).

         B. Response from law enforcement

         Across 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.[3] (Id. ¶ 7). It is also common for each department to receive assistance from the Indiana State Police. (Id.).

         Just as 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 advised:

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 this time.

(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).

         Trooper 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).

         What 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).

         However, 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).[4] 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).[5]

         C. Events post-shooting and subsequent investigation

         Immediately 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 - 25).

         Within 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).

         Shortly 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. at 3).

         Shane 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).

         At some 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).[6] 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).

         D. Procedure

         On 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.

         In 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.

         II. Daubert Motions

         As is 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).

         Federal 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 702:

(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. The district court is initially charged as a gatekeeper to determine whether a qualified[7] expert's opinions are sufficiently reliable and relevant. See Daubert, 509 U.S. at 589 - 592; Lapsley, 689 F.3d at 809.

         An 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. 2010)).

         An 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).

         A. Dennis K. Waller

         Plaintiff 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).

         Waller 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.).

         Trooper 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.[8] (See Filing No. 164, State Defendants' Brief in Support of Motion to Exclude, at 4 - 7).

         As to 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.”).

         As to 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 omitted).

         Several 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.

         However, 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 circumstances.”).

         Lastly, 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.

         B. Jonathan Arden, MD

         Plaintiff 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.).

         Dr. 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.

         The 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).

         Accordingly, Dr. Arden is permitted to offer his opinion on the bullet trajectories.

         C. Samuel Marso

         Plaintiff 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.).

         Marso 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.

         The 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.[9]

         D. Jayme Albin, LCSW

         The 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.).

         Albin 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).

         While 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 district court.”).

         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 ...


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