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Levy v. Marion County Sheriff

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

February 11, 2019

Gai Levy, Plaintiff,
The Marion County Sheriff and The Consolidated City of Indianapolis and Marion County, Defendants.


          Jane Magnus-Stinson, Judge

         Plaintiff Gai Levy was arrested on February 29, 2016 and taken into custody by Defendant the Marion County Sheriff (the “MCSO”) on an outstanding warrant. The next day, the trial court in which his case was pending ordered him to be held until he could be transported to Marion County Community Corrections (“MCCC”). One day later, on March 2, a different judge ordered that he be released to self-report to MCCC, but the MSCO did not receive notice of the new order and Mr. Levy remained in MCSO custody until he was taken to MCCC on March 3. At MCCC, he was processed, fitted with an electronic monitoring device, and released. Subsequently, Mr. Levy initiated this lawsuit, [1] alleging that Defendants detained him past the time that they had au- thority to do so, in violation of the United States Constitution. Defendants have moved for summary judgment on all of Mr. Levy's claims, [Filing No. 37], and to exclude the testimony of Mr. Levy's expert, [Filing No. 56], and both motions are ripe for the Court's review.

         It is important to note that Mr. Levy attempts to piggyback onto another case pending in this district, Driver, et al. v. Marion County Sheriff, et al., Cause No. 1:14-cv-2076-RLY-MJD, in which plaintiffs claim that the MSCO has a policy or practice of holding detainees for up to seventy-two hours after they are ordered released. But this case is not Driver, and the circumstances surrounding Mr. Levy's detention differ significantly from those at issue there and do not involve the 72-hour delay issue. Mr. Levy's piggyback attempt is unavailing and, as discussed below, the Court grants both of Defendants' motions.[2]

         I. Motion to Exclude the Testimony of Plaintiff's Expert

         The Court will first consider Defendants' Motion to Exclude the Testimony of Plaintiff's Expert Allison (sic) Shine, [Filing No. 56].

         In their Motion to Exclude, Defendants argue that the report filed by Mr. Levy's expert, Alison Shine, did not comply with Fed.R.Civ.P. 26 because she did not disclose her work as an expert witness in at least four other cases and she offered opinions based on material that she did not disclose in her report and that she could not recall at her deposition such that Defendants did not have an opportunity to fairly question her. [Filing No. 56 at 1-4.] Defendants also argue that Ms. Shine's testimony should be excluded because she “lacks the fundamental knowledge necessary to offer an expert opinion, ” since she admitted in her deposition that she does not have any knowledge regarding many of the key issues in this case. [Filing No. 56 at 4.] Specifically, Defendants note that Ms. Shine needed to be able to access the data management systems used by the courts and the MCSO to “understand how the events in this case unfolded, ” and to “see what codes court staff actually entered…and that controlled Mr. Levy's release and the Sheriff's response to the Court's orders.” [Filing No. 56 at 5.] They argue that Ms. Shine also “needed to know how the process for release worked when a court issued a subsequent order for release that changed or altered a previous release order….” [Filing No. 56 at 5.] Defendants contend that Ms. Shine acknowledged during her deposition that she: (1) did not review any of the depositions taken in this case; (2) did not have access to court records to review this case because Mr. Levy obtained an expungement of his conviction; (3) did not understand what the release work flow is that automates the process for inmate releases after a court enters a release code into the database; (4) did not review or understand what the various release codes used in this case were or how they worked; and (5) had no knowledge of the policy that governed the court communicating changes in release orders to the MCSO. [Filing No. 56 at 4-7.] This lack of knowledge, Defendants argue, renders Ms. Shine unqualified to provide the expert opinions she has set forth. [Filing No. 56 at 9-10.]

         In response, Mr. Levy argues that Ms. Shine's failure to disclose her previous work as an expert witness did not prejudice Defendants because counsel for Defendants elicited all of the information regarding this prior work during her deposition. [Filing No. 62 at 1-2.] Mr. Levy also argues that Ms. Shine testified during her deposition that she reviewed screen shots of the data received by the MCSO, that Defendants had the opportunity to question her regarding that review at her deposition, and that Ms. Shine worked for MCCC for over ten years and testified regarding “calculation of jail time at approximately 2, 600 criminal hearings in Marion County.” [Filing No. 62 at 2-3.] Mr. Levy asserts that where an expert provides non-scientific testimony, as Ms. Shine has, the key issue is whether the testimony “rests upon a reliable foundation and not unsupported speculation….” [Filing No. 62 at 3.] He contends that her written report gave Defendants a reasonable opportunity to effectively cross examine her, and that Ms. Shine's “knowledge and extensive experience will help the jury understand the evidence presented at trial.” [Filing No. 62 at 3-4.] Mr. Levy also argues that Defendants waited too long to file their Motion to Exclude. [Filing No. 62 at 2.]

         In their reply, Defendants argue that they were prejudiced by Ms. Shine's failure to identify the data she relied upon to prepare her expert report because they did not have a meaningful opportunity to question her regarding the data. [Filing No. 67 at 2.] They note that “[t]his inability to question Ms. Shine about her understanding of the…data turned out to be of critical importance because after her deposition, she provided her affidavit where she testified that she relied on the…data to form her opinion” regarding the court's release order for Mr. Levy. [Filing No. 67 at 2.] Defendants argue that because Ms. Shine admitted that she knew nothing about how the release process works, her opinion lacks the necessary foundation for an expert opinion. [Filing No. 67 at 3.] Finally, Defendants assert that the court records they have obtained show that Ms. Shine's conclusions are incorrect. [Filing No. 67 at 4.]

         1. Violations of Rule 26

         The Court first considers whether Ms. Shine's testimony should be excluded based upon her failure to disclose that she had served as an expert witness in four other cases and because she did not disclose the data she relied upon in preparing her expert report. Federal Rule of Civil Procedure 26 provides that an expert report must contain, among other things, “the facts or data considered by the witness in forming them” and “a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition….” Fed.R.Civ.P. 26(a)(2)(B)(ii) and (v). Federal Rule of Civil Procedure 37 states:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Fed. R. Civ. P. 37(c)(1). “[T]he sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.” David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003) (citation and quotation omitted). In considering whether Defendants were prejudiced, the Court considers: “(1) the prejudice or surprise to [Defendants]; (2) the ability of [Defendants] to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date.” Id.

         Mr. Levy's only response to Defendants' arguments is that Defendants had the opportunity to question Ms. Shine regarding her testimony in other matters and her review of the OMS screen-shots during her deposition. Applying the David factors, the Court finds that Mr. Levy has not demonstrated that Defendants were not prejudiced by his violations of Rule 26. First, it is undisputed that Defendants did not have information regarding Ms. Shine's past testimony or her reliance on OMS data before her deposition. Second, Mr. Levy has not explained why being able to elicit testimony on those topics at her deposition erases any prejudice to Defendants. Defendants were denied the opportunity to prepare questioning ahead of time based on the undisclosed information and, at least in the case of the OMS data, their questioning of Ms. Shine during her deposition was not fruitful. [See, e.g., Filing No. 56-2 at 32-33 (Ms. Shine testifying that she did not remember what the OMS screenshots showed).] Third, as discussed below, excluding Ms. Shine's testimony would not disrupt trial because she did not have knowledge, and was not able to testify, regarding the key issues in this case. Finally, while there is no evidence that Mr. Levy acted willfully or in bad faith, this is just one factor in the analysis. Because the first three David factors weigh in favor of a finding of prejudice, the Court finds that Ms. Shine's expert testimony should be excluded based on Mr. Levy's violations of Rule 26 and GRANTS Defendants' Motion to Exclude on that basis.

         2. Issues With Substantive Testimony

         Defendants also argue that Ms. Shine's testimony should be excluded because she does not have knowledge regarding the key issues in this case. Federal Rule of Evidence 104 instructs that “[t]he court must decide any preliminary question about whether a witness is qualified…or evidence is admissible.” Fed.R.Evid. 104(a). Federal Rule of Evidence 702 provides that expert testimony is admissible if: “(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. A trial judge “must determine at the outset…whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid or whether that reasoning or methodology properly can be applied to the facts in issue…. Many factors will bear on the inquiry….” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). The principles of Daubert apply equally to expert witnesses who will provide non-scientific testimony. Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013).

         The court has a “gatekeeping obligation” under Rule 702, and “must engage in a three-step analysis before admitting expert testimony. It must determine whether the witness is qualified; whether the expert's methodology is scientifically reliable; and whether the testimony will ‘assist the trier of fact to understand the evidence or to determine a fact in issue.'” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017) (quoting Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010)). Put another way, the district court must evaluate: “(1) the proffered expert's qualifications; (2) the reliability of the expert's methodology; and (3) the relevance of the expert's testimony.” Id. (emphasis omitted).

         The Court identifies several key issues of which Ms. Shine has no knowledge. Ms. Shine testified that she was not able to review Odyssey records for Mr. Levy (which would reflect the court's orders) because Mr. Levy's record was expunged:

Q: Let me stop you right there. Did you utilize Odyssey at all as part of your analysis?
A: I tried. That's where I first tried to look into it, and I couldn't find any information on it. So then I called the Court. It was expunged, so I wasn't able to access anything on Odyssey.
* * *
Q: Okay. It sounds like, though, you were never able to access any of the Odyssey systems or OMS systems that showed what event code was entered by court staff with regard to the March 1st order in this case; is that true?
A: That's correct. What I have access to is what the public has access to.
Q: Okay.
A: That doesn't include those details.

[Filing No. 56-2 at 22; Filing No. 56-2 at 29.]

         Ms. Shine then testified that she had no knowledge of how court information is transported to the MCSO through a database, what the entry of certain codes by court staff signifies, what certain codes mean, what event code was entered for Mr. Levy on March 1, how certain codes are communicated to the MCSO, what the MCSO does when it receives a code, what the release work flow is, when the MCSO was finished processing Mr. Levy in response to the March 1 order, and what the effect is when the court issues a new event code that updates or amends a previous release order when the MCSO has already processed an inmate for release:

Q: What I want to focus on for right now is the part of that process you just explained where the clerk transmits [release] information to the jail in some sort of database. Are you familiar at all with how that works?
A: No
[Filing No. 56-2 at 17.]
Q: All right. Do you know what the entry by court staff of an ORC code does in terms of establishing the conditions for an inmate's release from the jail?
A: No.
[Filing No. 56-2 at 29-30.]
Q: Do you know what [the SBDOA ...

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