Opinion
Case No. 98-4092
February 15, 2000.
Dorothy A. O'Brien, Brad A. Reynolds, Brooke O'Brien, Davenport, IA, for plaintiff.
Arthur W. Eggers, James S. Zmuda, Califf Harper, P.C., Moline, IL, for defendant.
ORDER
This matter is now before the Court on Defendant's Motion in Limine to Bar Expert Witness, which was taken under advisement following oral. For the reasons set forth below, the Motion in Limine [#54] is GRANTED.
DISCUSSION
The Court's role in determining the admissibility of expert testimony is that of gatekeeper. General Electric Co. v. Joiner, ___ U.S. ___, 118 S.Ct. 512, 517; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In this role, the Court must determine whether the expert testimony in meets two essential requirements: (1) it must be based on scientific, or other specialized knowledge and (2) it must assist the trier of fact in the evidence or determining a fact in issue. Daubert, 509 U.S. at 592; .R.Evid. 702.
In the Americans With Disabilities Act litigation currently pending before the, Plaintiff offers Mr. Royce Doane ("Doane") as an expert witness on the issue whether monocular individuals can generally perform the essential functions of the of police officer. He would then go on to render the opinion that Plaintiff could fact perform the job of police officer despite his monocular status. Doane's is based on his 12 years of experience as a monocular visioned police with the City of Omaha Police Department. Thus, his testimony is not, but rather based on own with the same physical impairment in the same profession those involved in this case.
Parenthetically, the Court notes that Doane appears to have been the in the only reported case in which a police officer with monocular vision successfully pursued an ADA claim against his employer. See Doane v. City Omaha, 115 F.3d 624, 628 (8th Cir. 1997).
In Kumho Tire Co., Ltd. v. Carmichael, ___ U.S. ___, 119 S.Ct. 1167 (1999), Supreme Court specifically addressed the application of the analysis set forth in to experience-based, non-scientific expert testimony. The Supreme Court Daubert that while a court's gatekeeping function under Daubert applies to all expert, in the case of a non-scientific expert, "the relevant reliability concerns may upon personal knowledge or experience." Kumho, 119 S.Ct. at 1175. The is "a flexible one," and the factors articulated in Daubert "do not constitute `definitive checklist or test.'" Id. (emphasis in original). Rather, the inquiry "must `tied to the facts' of a particular `case.'" Id. In other words, "[t]he factors in Daubert may or may not be pertinent in assessing reliability, depending the nature of the issue, the expert's particular expertise, and the subject of his." Id. In fact, the Supreme Court went on to recognize that not all of the Daubert factors necessarily apply even in a case where the reliability of scientific is challenged. Id. The point is to ensure that an expert, "whether basing upon professional studies or personal experience, employs in the courtroom same level of intellectual rigor that characterizes the practice of an expert in the field."Id. at 1176.
Here, Doane's background is not seriously in question; he has monocular vision has performed the position of police officer with the City of Omaha Police for 12 years. His opinion stems largely from his years of experience on job and is supported by the fact that he has apparently been able to perform his successfully despite his monocular condition. That being said, Doane's personal as a monocular police officer does not necessarily mean that he genuine expertise" on the subject of monocularity in police work. After careful review of the pleadings and argument submitted in connection with this, the Court finds that Defendant has presented a valid question as to whether is qualified to make the conclusions set forth in his expert report, as well as the proposed testimony would be helpful to assist the jury in understanding evidence or determining a fact in issue.
While it is not uncommon for experienced police officers to appear and give testimony based on specialized knowledge gained through their years on the, such testimony is generally derived from the frame of reference that these develop as a result of their repeated involvement in the situations forming the for their testimony. For example, courts routinely entertain expert testimony police officers involved in the investigation of drug trafficking on the issue of narcotics are accompanied by the indicia of possession for distribution as to personal use. By virtue of the officers' participation in and observations during the course of numerous drug investigations over time, courts have that these officers are uniquely qualified to describe the various indicators routinely accompany drugs intended for distribution, such as multiple packages small quantities of narcotics, the lack of paraphernalia for personal use, the presence of a weapon, a paging device, or a large sum of cash. See United v. Romero, 189 F.3d 576, 584 (7th Cir. 1999) (acknowledging that expert from experienced law enforcement investigators has proven to be useful juries in drug trafficking cases.)
Unlike these police experts, who draw from the experience gained through observations in many investigations to arrive at an opinion that a certain is sufficiently similar to be analogous, Doane is attempting to do precisely opposite; instead of using many examples to arrive at a singular conclusion, he attempting to rely solely on his own personal experience as a monocular visioned and generalize it to predict results for other monocular individuals. For, a sampling of the opinions set forth in his expert report are as follows:
1. monocular visioned police officers do not suffer from compromised ability and peripheral awareness;
2. monocular visioned police officers do not suffer from compromised orientation mobility;
3. monocular visioned police officers do not suffer from compromised ability to perform pursuit driving;
4. monocular visioned police officers do not suffer from compromised color discrimination and viewing with one eye;
5. monocular visioned police officers do not necessarily suffer from compromised depth perception; and
6. a monocular visioned officer or candidate is not a danger to himself, fellow officers or the public.
The analysis supporting these opinions begins with an explanation of his duties as a officer and explains that his condition has had no quantifiable impact on his to perform the job of police officer. From there, Doane proceeds directly to the that properly trained officers will respond to these external in a like manner and be similarly unaffected in their performance.
Doane does not base his testimony on an analysis of the residual functional of a number of monocular police recruits over time but rather his own experience as a police officer with monocular vision and having spent a period of time with Plaintiff. Conspicuously absent is any objective basis or indicating why it is appropriate to superimpose Doane's abilities and adaptive onto other monocular individuals to predict similar degrees of success; he simply that certain situations have not posed an undue problem for him and to the opinion that these same things would not pose a problem for or any other monocular visioned individual pursuing a career in police work.
In rendering these opinions, Doane has no verifiable methodology and has given Court no indication that he has applied "the same level of intellectual rigor that the practice of an expert in the relevant field." Kumho, 119 S.Ct. at 1176. Essentially, his proposed testimony boils down to the conclusion that because has been able to perform police work successfully despite his monocular vision, the Plaintiff will likewise be successful. This is a leap of faith that the Court is to make, as there is nothing inherent about Doane's own personal as a monocular visioned person which logically or scientifically leads to supportable conclusion that other persons with monocular vision necessarily, or probably, would have the same abilities that he has.
"Judges must look behind an expert's ultimate conclusion and analyze the of its foundation." Adams v. Indiana Bell Telephone Co., Inc., 2 F. Supp.2d 1093 (S.D.Ind. 1998), citing Mid-State Fertilizer v. Exchange National Bank, F.2d 1333, 1339 (7th Cir. 1989). Despite his fervent conclusions, Doane pays heed to the fact that he and the Plaintiff (or any other monocular individual) do necessarily have the same skills, abilities or residual capacities and would each affected differently by the same external factors. He has not formulated his after years of observing individuals with monocular vision in police work or comparing test results for a sample of monocular visioned recruits with the scores by recruits with sight in both eyes or by any of the other methods that have implemented by vocational professionals in this type of case.
"An expert must `substantiate his opinion; providing only an ultimate with no analysis is meaningless.'" Clark v. Takata Corp., 192 F.3d 750, (7th Cir. 1999); see also, United States v. Hall, 165 F.3d 1095, 1101 (7th Cir. (affirming a court's duty to "rule out subjective belief or unsupported.") Here, Doane's ultimate opinions about Plaintiff's qualifications to police work amount to nothing more than subjective belief and unsupported that fail to rise to the level of reliability required under the standard byDaubert and its progeny. Doane concedes that he is not a vocational and does not purport to be aware of any scientific or social studies that would his extension of the subjective perceptions that he has developed through his experiences/encounters in life into the concrete opinion that these conceptual or suppositions will actually be fulfilled in Plaintiff's case. "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit evidence which is connected to existing data only by the ipse dixit of the." Clark, 192 F.3d at 758, citing Joiner, 118 S.Ct. at 519.
The Court further finds that Doane's unsupported conclusions would not be helpful or assist the jury in determining a fact in issue. While there be some merit to dispelling the general perception that monocular visioned are unfit for police work, the proposed testimony goes well beyond this purpose and would likely mislead the jury by cloaking subjective factual in the guise of expert testimony. Therefore, the Court cannot conclude there has been a sufficient demonstration that Doane can reliably determine that
Plaintiff, or any other monocular visioned individual, would be qualified to perform the of police officer, or that such testimony would be relevant in the sense of being helpful to the trier of fact. Accordingly, the proposed expert testimony will not be.
CONCLUSION
For the reasons set forth herein, Defendant's Motion in Limine to Bar Plaintiff's Witness [#54] is GRANTED. Plaintiff will have until March 17, 2000, to and disclose a new vocational expert, and Defendant will be given until 17, 2000, in which to depose the newly disclosed expert. Defendant will then until May 17, 2000, to designate and disclose its expert, and Plaintiff will be until June 16, 2000, in which to depose Defendant's expert witness. This is not subject to further extension. The final pretrial conference in this will be set for Friday, July 21, 2000, at 10:00 a.m. in person in Rock Island.