Opinion
Case No. 00 C 4617.
February 20, 2002
ORDER
Before the court are defendant Thornton Township High School's Motion to Strike Plaintiff's Response to Defendant's Request to Admit Facts and to Have Said Facts Deemed Admitted and Plaintiffs' Motion to Exclude Defendants' Expert Witness. The entire basis for the motion to strike is that plaintiffs were slightly over three weeks late in responding to requests to admit. Part of the basis for the motion to exclude is that defendant was slightly over two weeks late in providing court-ordered expert disclosures. As is obvious from this brief recitation, the parties are well-matched. Both sides have been equally sloppy about deadlines and ask the court to punish their opponent for conduct of which they are equally guilty. The court is not persuaded, particularly in view of both sides' similar conduct, that the interest of the parties, or the interests of justice, will be served by punishing the parties for their tardiness. Accordingly, insofar as the motions are based on failure to comply with deadlines, both are denied.
It appears that only defendant Thornton Township High School proffered an expert opinion.
The expert disclosure defendant initially served on plaintiffs did not comply with Rule 26(a)(2). That problem has since been cured.
Plaintiffs further challenge the substance of defendant's expert disclosure, arguing that the expert opinion encompasses matters far beyond the expert's competence and in other respects invades the province of, or cannot possibly assist, the trier of fact. To a large extent, plaintiffs are correct. The court will not permit a police procedures expert to give legal opinions on the meaning of Supreme Court cases. Nor will the court permit the expert to give testimony which could reasonably be understood as validating one side's or the other's version of the facts. Moreover, it appears that defendant seeks to elicit something akin to a medical opinion from their expert: it wishes to elicit his opinion that based upon the injuries plaintiff Alynthia Mohamed sustained and the injuries of which she complained, she could not have been the victim of excessive force. The expert's proposed opinions on how Alynthia's injuries could have been sustained ("The bruise to Mohamed's right elbow may have occurred when she and Taylor were wrestling on the ground" and "Bruises are usually a result of soft tissue injury from trauma to the effect area") are either rank speculation or far beyond any expertise a police control tactics expert possesses or both. In addition, there are portions of the report that the court does not understand such as the section entitled "transactional analysis."
The court further agrees with plaintiffs that the expert may not opine on matters of credibility nor point out to the jury the issues on which the various witnesses differ. The expert might well be permitted, however, to give an opinion as to the proper police response to stipulated or hypothetical circumstances. The court reads Seventh Circuit precedent on this issue as recognizing that expert opinion on appropriate police response to a given situation may be admissible, assuming that the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), are satisfied. See Pena v. Leombruni, 200 F.3d 1031, 1035 (7th Cir. 1999).
Plaintiffs' motion to bar Mr. Marsh from giving this opinion proffered by defendant is granted. It may well be that Mr. Marsh can give an opinion in this case. Any admissible opinion would have to be within the scope of the expert's expertise, would have to offer assistance to the jury and could not usurp the jury's province. The court is not inclined to go through Mr. Marsh's proffered opinion, much of which is manifestly beyond his expertise, and try to identify the areas on which he may testify. Such a task is for the proponent of the evidence.
Defendant may attempt to submit an opinion that conforms to this order. If defendant wishes to do so, it may do so within fourteen days of the date of this order. In order to permit the court to make the analysis required by Daubert, supra, the specific opinions defendant wishes to offer must be identified, together with the facts assumed in reaching the opinion and the particular training and experience of Mr. Marsh which bears on each specific proffered opinion.
Ironically, the opinion set forth in the report defendant originally proffered, while not in compliance with Rule 26, appears at least in part to set forth an opinion within Mr. Marsh's expertise. The court excepts, of course, its reference to "the accepted use of force model set forth in Graham v. Connor," which is not explained and appears to be essentially a legal opinion.