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Estate of Robinson ex rel. Personal Representative Irwin v. City of Madison

United States District Court, W.D. Wisconsin

February 13, 2017

THE ESTATE OF TONY ROBINSON, JR., ex rel. PERSONAL REPRESENTATIVE ANDREA IRWIN, Plaintiff,
v.
THE CITY OF MADISON, WISCONSIN, and MATTHEW KENNY, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         On March 6, 2015, Matthew Kenny, a Madison police officer, was sent to a residential address on Madison's east side to check on Tony Robinson after several 911 calls had reported Robinson's erratic behavior. Less than a minute after Kenny arrived, he shot and killed Robinson in the stairwell of the residence. Kenny was cleared by an internal investigation by the Madison Police Department, which determined that the shooting did not violate department policies concerning the use of force. The district attorney declined to bring criminal charges against Kenny.

         Robinson's mother, Andrea Irwin, brings this civil lawsuit under 42 U.S.C. § 1983 in her capacity as the personal representative of Robinson's estate. Plaintiff alleges that Kenny violated Robinson's rights under the Fourth Amendment by using objectively unreasonable force against him. Kenny contends that his use of force was reasonable because he believed that Robinson was assaulting someone, and that when he entered the building to investigate, Robinson attacked him. Plaintiff alleges that the City of Madison is also responsible for Robinson's death because the police department conducts shoddy investigations that do not hold officers accountable for shootings, thus encouraging officers to use deadly force with impunity.

         Both Kenny and the City have moved for summary judgment, Dkt. 43 and Dkt. 47, contending that the material facts are undisputed and that plaintiff's claims must fail as a matter of legal principle. The parties have also filed a number of motions asking the court to exclude some of the other side's expert evidence. Dkt. 56; Dkt. 58; Dkt. 59; Dkt. 60; Dkt. 80; Dkt. 81; Dkt. 103; Dkt. 104; Dkt. 114; Dkt. 115. Expert evidence is critical to this case, because Kenny is the only remaining witness to what happened in the stairwell. Both sides rely on expert interpretation of the physical evidence to confirm or contradict Kenny's version of the events. Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the court must serve as a gatekeeper and decide whether the proffered expert evidence is reliable and relevant enough to be admitted. So, before considering the motions for summary judgment, the court must decide what evidence it will allow in the case.

         As explained in this opinion, some of the opinions of the experts are too speculative to be admitted and some are legal conclusions that the court will disregard because those are matters for the court or the jury to decide. But, for the most part, the court concludes that the parties' expert evidence is admissible. And, based on this evidence, what happened in the stairwell on March 6, 2015, is sharply and genuinely disputed. Thus the court must deny Kenny's motion for summary judgment. Whether Kenny's use of force was objectively unreasonable is an issue that must be resolved at trial.

         But the court will grant the City's motion for summary judgment. The City is not automatically liable for the unconstitutional acts of its employees. Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Rather, the City itself is liable only if the constitutional violation can traced back to some City policy, widespread practice, or decision by a City policymaker. Id. As explained below, plaintiff's Monell claim fails because plaintiff cannot establish that there was a policy or widespread practice of shoddy investigation of officer-involved shootings, or that the City was aware of and deliberately indifferent to a problem with those investigations, or that the shoddy investigations were the “moving force” behind Kenny's use of force.

         The bottom line is that plaintiff has not adduced evidence to show that Robinson died because the City turned a blind eye to obvious problems with the police department's investigation or response to officer-involved shootings. Accordingly, plaintiff's constitutional claim against the City fails. But the court's decision to grant summary judgment to the City is not an endorsement of the investigation of the Robinson shooting. The evidence plaintiff brings to this court raises a genuine dispute whether Kenny's use of force in this case was objectively unreasonable, and that is an issue for jury to decide.

         FACTS

         Except where noted, the following facts are undisputed for purposes of summary judgment.

         A. March 6, 2015

         On March 6, 2015, Tony Robinson and a friend, Anthony Limon, had planned to take psilocybin mushrooms (commonly referred to as 'shrooms). Anthony got called into work, but at some point, Robinson took the mushrooms on his own. Around 4:00 p.m., Javier Limon and his girlfriend, Kelly Austin, were at the second-floor apartment that Javier shared with Anthony at 1125 Williamson Street. Robinson showed up a short time later, but Javier and Austin stayed in Javier's bedroom with the door closed. After about an hour, Javier had not heard anything from Robinson. Javier went to check on him, and he found Robinson in Anthony's bedroom, “balled up on the bed in the corner.” Dkt. 41-2, at 2. Robinson began shouting at people who were not there. At some point, Javier's cousin arrived. Robinson continued to yell, and he and Javier's cousin pushed each other around. Eventually Javier told Robinson to leave. But Robinson continued to behave erratically, and Javier was unable to get Robinson out of the apartment. Javier and Austin left; Robinson followed. Javier and Austin got in her truck to leave, but not before Javier saw Robinson leap out in front of traffic. At that point, Javier called 911.

         At 6:28 p.m., Javier reported to the 911 operator that he was at a gas station on Williamson Street and that a “guy's tweakin. He's chasing everbody [sic] and fuckin yellin, and I don't know. He's tweakin on some shit . . . he's really outrageous right now. He fuckin scared me and my girlfriend.” Dkt. 41-1, at 1. Javier said that he lived across the street from the gas station, gave his address, and described Robinson's appearance. The 911 operator asked Javier whether Robinson had any weapons; Javier responded, “I don't think so, no.” Id. Javier told the operator that he had left the scene. Javier explained that Robinson was his friend and that he may have taken mushrooms, although he was not sure. Javier then reiterated that Robinson did not have a weapon and that he does not normally carry weapons. The operator told Javier that she was sending officers to check on Robinson, and the call concluded.

         Kenny was on patrol that evening. At 6:31 p.m., 911 dispatcher Jeremiah Chang asked for the locations of officers D8 (Kenny) and D7 (MPD Officer John Christian). Kenny reported that he was on Wilson Street; Christian was in the police department property room. The dispatcher radioed “[f]or a check person. 1125 Williamson. Look for a M/B, light skin, tan jacket and jeans. Outside yelling and jumping in front of cars. 19 years of age. Name is Tony Robinson. Apparently he lives in MaFarland [sic].” Dkt. 39-1, at 1. The dispatcher reported that the 911 caller was no longer at the scene and “no weapons seen.” Id. The dispatcher then reported that another 911 caller-a “victim, ” Lei Yang-reported that Robinson was at the gas station in that area. A third call about Robinson indicated that he had gone back inside Javier's apartment and that he had “[t]ried to strangle another patron.” Id.

         By that point Kenny had arrived at 1125 Williamson Street. A witness at the scene flagged Kenny down and told him that Robinson had gone through the door at the side of the building to the upstairs apartment. Kenny had parked his squad in the driveway, with his dash cam pointed toward the door to the upstairs apartment. At 6:38 p.m., Kenny radioed, “I'm going to have to enter, ” id., drew his weapon, and went through the door to the stairway that led to the upstairs apartment. Seconds later, MPD Sergeant Jamar Gary radioed, “Shots fired.” Id.

         Kenny's dash cam video[1] provides objective evidence of a general factual outline that the parties do not dispute. The video shows Kenny pulling into the driveway at 1125 Williamson Street, exiting his vehicle, and approaching the house. He looks around the back of the house and toward the upper apartment windows, climbs onto the porch near the door, appears to say something into his radio, and places his hand on his weapon. At this point, the audio kicks in, presumably marking Gary's arrival. Just under 20 seconds pass from Kenny going through the door to the shooting. The shooting begins with a quick volley of three shots; Kenny begins to back out of the doorway between the first and second shots. After the first volley of three shots, Robinson's feet appear over the threshold of the door, pointed up, soles out, indicating that he is not standing up. Kenny appears to dodge or jump over Robinson's feet as he backs onto the porch. He then fires a second volley of three shots. Kenny fires a seventh and final shot from the far edge of the porch before he hops off and shouts, “Stop right there! Don't move!”

         A few additional points are undisputed. The parties agree that Kenny entered the stairwell before backup arrived. Kenny did not radio that he saw or heard any signs of a disturbance or exigency. Kenny heard only once voice coming from the upstairs apartment. The parties agree, based on the results of the autopsy, that Kenny hit Robinson with three non-fatal shots-to the right hand, the left shoulder, and the chin. Because those wounds were not marked with stippling (i.e., gunpowder marks), Kenny fired them from more than three to four feet away. Kenny fired four fatal shots-all to Robinson's chest, through his heart and other vital organs-close to Robinson's body, well within three to four feet, as evidenced by stippling. One of the wounds showed evidence of searing, suggesting that the muzzle of Kenny's gun was against or very near Robinson's skin when he fired.

         The factual outline is undisputed, but the parties sharply dispute the details, particularly what happened in the stairwell, outside the view of the dash cam. According to Kenny, he could hear sounds of “a disturbance” coming from the upstairs apartment when he arrived. Dkt. 131, ¶ 88. Kenny heard yelling and screaming, and he approached the stairwell to hear more clearly. He heard the sound of someone striking something or someone; he heard someone yell, “What are you going to do now, bitch[?]” Dkt. 40 (Kenny Dep. 301:21). Kenny believed that Robinson was in the upstairs apartment assaulting someone. See Id. at 321:11-23. From where he was standing at the bottom of the stairs, Kenny could see that the top of the stairs opened directly to the upstairs apartment; the upper landing did not appear to have a door. Kenny drew his gun, held it at the low ready position with both hands, and went up the stairs. According to Kenny, when he neared the top of the stairs, he announced “Madison Police.” Kenny moved toward his right on the stairs, to see into the apartment. Suddenly, Robinson turned the corner and punched Kenny in the head with a closed fist. Robinson continued to swing at him, and Kenny lost his balance and fell down the stairs. Kenny admits that he cannot recall exactly how he and Robinson reached the bottom of the stairs, but Kenny began shooting. According to Kenny, Robinson continued to move or “aggress” toward Kenny during each of the seven shots he fired. When he fired his final shot, Kenny observed Robinson “sitting up and pushing himself forward.” Id. at 364:18-19.

         Plaintiff disputes Kenny's account and offers an alternative one, relying on the dash cam video and testimony by forensics experts. The dash cam video shows that Kenny fired all seven shots from the bottom of the stairs; if Robinson did attack Kenny at the top of the stairs, Kenny did not shoot him then or there. According to plaintiff's forensics experts, Kenny likely fired three shots at Robinson from the bottom of the stairs, as Robinson came down the stairs. Kenny likely hit Robinson with three non-fatal shots first, from more than three to four feet away. According to plaintiff, the dash cam video demonstrates that Kenny was not flailing or falling down the stairs as he fired his weapon; he was perfectly controlled and on his feet, until he lunges to avoid tripping on Robinson as Robinson falls. Kenny fired his fourth, fifth, and sixth shots close to Robinson's body, within three to four feet. Kenny continued to back out of the door and fired his seventh and final shot from the front porch, as Robinson was lying on the stairs.

         So that is the central dispute in the case. According to Kenny, he believed that Robinson was assaulting someone in the second-floor apartment, and he went in to stop it. Kenny encountered an aggressive Robinson, who punched Kenny in the head, causing Kenny to sustain a concussion. Kenny feared for his life and fatally shot Robinson to protect himself. In plaintiff's version, Kenny was dispatched to a “check person” call, knew that he should wait for backup, but entered the building with his weapon drawn anyway. Then, as he stood near the bottom of the stairwell, Robinson appeared at the top, and Kenny fired unnecessarily. Robinson fell down the stairs and Kenny fired the fatal shots as he lay helpless at the bottom of the stairs.

         Immediately following the shooting, Gary went upstairs and cleared the apartment; he did not find anyone. Kenny went to the hospital; photographs indicate that he cut the left side of his head, near his hairline. Medical personnel cleaned the cut and did not need to bandage it. Kenny denied having pain, nausea, vomiting, dizziness, or visual changes. According to Kenny, he was diagnosed with a concussion about a month after the incident. But Kenny adduces no medical records or other objective evidence of a concussion. See Dkt. 149, ¶ 144 (“Officer Kenny was diagnosed with a concussion after the March 6, 2015 incident with Robinson.” (citing Dkt. 40 (Kenny Dep. 20-22, 215))). The medical records in the record note that Kenny sustained a “head injury” on March 6, 2015. See Dkt. 95-1. And worker's compensation forms indicate that Kenny had been diagnosed with a concussion. See Dkt. 95, at 3 and Dkt. 95-1, at 6. Kenny's medical expert, Andrew Dennis, DO, acknowledged that there is no objective evidence in the record that Kenny suffered a concussion.

         Within a few minutes after the shooting, Kenny gave Gary a “snapshot” account of what happened. At the time, Kenny stated that: (1) he had heard more than one voice upstairs; (2) Robinson was yelling and had come at him swinging and punching; and (3) he did not draw his weapon until he was falling down the stairs after Robinson had punched him. Kenny's later testimony contradicted these early, on-the-scene statements, and Kenny now concedes that none of these initial statements were accurate.

         Kenny gave a formal statement to investigators on Monday, March 9, 2015, three days after the shooting. Before giving the formal statement, Kenny was allowed to do a walkthrough of the scene of the shooting and review the dash cam video and body microphone audio with his counsel.

         B. Madison Police Department policies and practices

         Plaintiff's Monell claim against the City has two components. First, plaintiff contends that MPD investigations of officer-involved shootings are, as a matter of unstated practice and custom, unfairly biased in favor of the officer. Second, MPD officer training is deficient, in that MPD does not appropriately retrain officers after officer-involved shootings. Accordingly, the court here summarizes the facts pertinent to MPD training and investigation of officer-involved shootings.

         1. MPD training generally

         Plaintiff does not challenge the MPD's training programs generally. In fact, plaintiff concedes that the MPD provides training that exceeds state standards and that the MPD keeps up with national, state, and local law enforcement trends and incorporates up-to-date best practices.

         Kenny received and successfully completed significantly more pre-service training and ongoing in-service training than is required by the Wisconsin Law Enforcement Standards Board (LESB). Since 2009, Kenny has received advanced tactical training as a member of the MPD Special Weapons and Tactics (SWAT) Team.

         MPD has not amended or revised its policies, practices, or training specifically in response to incidents of officer-involved shootings.

         2. Officer-involved critical incidents investigations

         In Madison, a police officer-involved shooting involving a civilian prompts two investigations: an internal police department investigation and a criminal investigation.

         The internal investigation is conducted by the MPD, according to a Standard Operating Procedure (SOP) governing such investigations. The objective of the internal investigation is to determine whether the officer violated MPD policy during the incident. The internal investigation process has remained substantially the same from 2007 to 2015. The lieutenant in charge of Professional Standards and Internal Affairs (PSIA) leads the internal investigation.

         The objective of the criminal investigation is to determine whether criminal charges should be filed against the officer. Historically, the criminal investigation would, like the internal investigation, be conducted by officers of the MPD. But after the enactment of Wis.Stat. § 175.47 (effective April 25, 2014), state law required that the criminal investigation be conducted by at least two investigators neither of whom are employed by the law enforcement agency that employs the officer being investigated. In response to Wis.Stat. § 175.47, the MPD adopted a new SOP for the investigation of officer-involved shootings as of July 15, 2014. Under the new SOP, an outside agency handles the criminal investigation; the handling of internal investigations did not substantially change.

         Between 2000 and 2016, every MPD officer who has shot a civilian on-duty has been exonerated.

         3. The Robinson investigation

         At approximately 7:15 p.m. on March 6, 2015, MPD Lieutenant Cory Nelson, the PSIA lieutenant at the time, learned that Kenny had been involved in a shooting. Nelson would complete the MPD internal investigation and administrative review of the incident and determine whether Kenny acted in compliance with MPD policies and procedures.

         As required under § 175.47, the MPD did not lead the criminal investigation; the Wisconsin Department of Justice Division of Criminal Investigation (DCI) did. DCI Special Agent Rafael De La Rosa served as lead investigator, and Special Agent Lourdes Fernandez served as De La Rosa's second in command. Although MPD personnel were involved in the criminal investigation, DCI, via De La Rosa, was in charge.

         As is typical in DCI criminal investigations of officer-involved shootings, DCI investigators had Kenny walk through the scene on March 9, according to De La Rosa “because it helps the investigators process the scene more thoroughly and helps the officer provide a more thorough statement of what occurred.” Dkt. 158, ¶ 35. De La Rosa also had Kenny view dash cam footage and listen to audio of the incident, in private with his attorney. (Plaintiff contends that allowing the officer access to the scene and other evidence before he testifies betrays the fact that the entire system favors the officer: the process is purportedly designed to help the officers prepare their testimony in light of the evidence at the scene.) Later on March 9, De La Rosa formally interviewed Kenny about the incident. On March 23, De La Rosa followed up with a phone interview with Kenny. Interview transcripts and summaries, and the rest of the DCI investigative file, were available to Nelson when he conducted his internal investigation for the MPD.

         In conducting the internal investigation, Nelson evaluated Kenny's decisions to (1) enter the stairway with his gun drawn; and (2) use deadly force. Nelson spoke with Kenny on April 6 to clarify a few points, but he did not fully interview Kenny because he had the benefit of the DCI interviews. Nelson had Kipp Harman, a MPD training officer, write a use-of-force report on the incident. Nelson incorporated Hartman's report into his own.

         On May 12, 2015, Dane County District Attorney Ismael R. Ozanne announced that Kenny was not criminally liable for the events of March 6, 2015.

         Nelson prepared a final report, dated May 26, 2015, for MPD Chief Michael Koval's review. Nelson's report concluded that Kenny had complied with the MPD SOP on “Police Weaponry” when he entered the stairwell with his weapon drawn and that Kenny had complied with the MPD policy regarding “The Use of Deadly Force” when he shot Robinson. Koval had final authority to determine whether Kenny had complied with MPD policy and procedure, and on June 3, 2015, Koval determined that he had.

         4. The Brandon incident and investigation

         Two other officer-involved shootings and their investigations are relevant to plaintiff's Monell claim. On July 15, 2007, Kenny was involved in a shooting that resulted in the death of Ronald Brandon. Officers were dispatched to a residential address after a 911 caller reported that a man was sitting on his porch with a gun and threatening the neighbors. The man (Brandon) pointed the gun at the first officer who arrived at the scene. As Kenny arrived at the scene, he heard the first officer radio, “He's pointing a gun at me.” Kenny got out of his squad, charged his rifle, issued verbal commands to Brandon to drop the gun, and when Brandon turned the gun toward Kenny, Kenny shot him. Approximately 19 seconds passed between Kenny's arrival and the shooting. As it turned out, a second 911 caller had reported that Brandon had only a pellet gun, and that it was Brandon himself who had called 911 while intoxicated. The second caller proved correct; whether Kenny had access to and should have known this information was disputed.

         MPD Captain Kristen Roman served as PSIA lieutenant at that time and completed the internal investigation and administrative review. The MPD also handled the criminal investigation, under the direction of the Dane County District Attorney, as § 175.47 had not yet been enacted. Roman reviewed the criminal investigation file, viewed dash cam footage of the incident, and spoke with other officers, and she determined that she did not need to conduct additional interviews or any follow-up investigation; she did not formally interview Kenny. Roman concluded that Kenny's actions were reasonable, appropriate, and in compliance with the MPD's use of force policy. MPD Chief Noble Wray accepted Roman's findings and exonerated Kenny. The Dane County District Attorney at that time, Brian Blanchard, determined that Kenny was not criminally liable for Brandon's death.

         5. The Heenan incident and investigation

         On November 9, 2012, MPD Officer Stephen Heimsness shot and killed Paul Heenan. The parties in this case concede that the many of the circumstances surrounding the Heenan incident are disputed. The parties appear to agree that Heenan was unarmed and intoxicated; that he had entered a neighbor's home; and that Heimsness was dispatched to investigate a possible breaking and entering. After he arrived at the scene, Heimsness believed that Heenan and a neighbor were fighting. He drew his weapon, ordered Heenan and the neighbor to get down, and ended up in a struggle with Heenan that resulted in Heimsness shooting Heenan three times.

         MPD Lieutenant Dan Olivas served as PSIA lieutenant at that time and completed the internal investigation. Again, as was the case during the Brandon investigation, the MPD also handled the criminal investigation, under the direction of the Dane County District Attorney, as § 175.47 had not yet been enacted. Olivas evaluated two decisions by Heimsness: his decision to confront Heenan at gunpoint, and his decision to deploy deadly force. Olivas relied on interviews and other information that the criminal investigators collected, interviewed Heimsness himself, and eventually concluded that Heimsness acted in accordance with all applicable MPD policies.

         The MPD asked the Wisconsin Department of Justice Training and Standards Bureau to perform an independent review of the Heenan shooting. The DOJ determined that Heimsness's actions were consistent with training approved by the LESB.

         MPD Chief Wray accepted Olivas's findings and exonerated Heimsness. District Attorney Ozanne determined that Heimsness was not criminally liable for Heenan's death.

         C. Jurisdiction

         Plaintiff filed this case on August 12, 2015, alleging violations of Robinson's rights under the United States Constitution. The case is brought under the auspices of 42 U.S.C. § 1983, and the court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, because plaintiff's claims arise under federal law.

         ANALYSIS

         Both Kenny and the City move for summary judgment. Summary judgment is appropriate if a moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing defendants' motions for summary judgment, the court construes all facts and draws all reasonable inferences in plaintiff's favor. Id. at 255. But “the non-moving party does not bear the burden of proving his case; the opponent of summary judgment need only point to evidence that can be put in an admissible form at trial, and that, if believed by the fact-finder, could support judgment in his favor.” Marr v. Bank of Am., N.A., 662 F.3d 963, 966 (7th Cir. 2011).

         A fact is genuinely disputed if a party has admissible evidence to support its position. Before the court can determine whether genuine disputes of fact preclude summary judgment, it must determine what evidence is admissible. This is an expert-heavy case, so the court begins with the parties' Daubert motions. The focus in this opinion is the motions for summary judgment, but the decisions on the Daubert motions will also affect the evidence that the parties will be able to present at trial.

         A. Daubert motions

         “Determining the true facts of a case often requires ‘the application of some scientific, technical, or other specialized knowledge.'” Lapsley v. Xtek, Inc., 689 F.3d 802, 808 (7th Cir. 2012) (quoting Fed.R.Evid. 702 advisory committee's note to 1972 proposed rules). Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. It provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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. This rule has been interpreted by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999), to require that the court serve as a gatekeeper to ensure that proffered expert testimony meets the requirements of Rule 702. Essentially, the gatekeeping function consists of a three-part test: the court must ensure that the expert is qualified, that the expert's opinions are based on reliable methods and reasoning, and that expert's opinions will assist the jury in deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the burden of establishing that the expert's testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

         As for qualifications, the question is not whether the expert is generally qualified in his or her field, but whether the expert has the necessary education and training to draw the conclusions he or she offers in the case at hand. See Hall v. Flannery, 840 F.3d 922, 926 (7th Cir. 2016). Experts may testify on the basis of practical experience as well as on the basis of formal education. “While ‘extensive academic and practical expertise' in an area is certainly sufficient to qualify a potential witness as an expert, Bryant v. City of Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000), ‘Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience, ' Walker v. Soo Line R. Co., 208 F.3d 581, 591 (7th Cir. 2000).” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

         The test for reliability is necessarily flexible. Although Daubert identifies factors the court may consider when determining whether an expert's testimony is reliable-whether the expert's technique has been tested, subjected to peer review and publication, analyzed for known or potential error rate, or is generally accepted-the “list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Kumho, 526 U.S. at 141. The court enjoys broad discretion in evaluating reliability. Id. at 142. The admissibility inquiry “must be ‘tied to the facts' of a particular case.” Id. at 150 (quoting Daubert, 509 U.S. at 591). The reliability inquiry should “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152. “A witness who invokes ‘my expertise' rather than analytic strategies widely used by specialists is not an expert as Rule 702 defines that term.” Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416, 419 (7th Cir. 2005).

         Finally, expert evidence is relevant if it helps the jury understand a matter beyond the knowledge and experience of a layperson. Daubert, 509 U.S. at 591-92 (“Rule 702's ‘helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.”).

         But the Daubert inquiry does not authorize the court to decide issues of credibility. “A Daubert inquiry is not designed to have the district judge take the place of the jury to decide ultimate issues of credibility and accuracy.” Lapsley, 689 F.3d at 805.

         The court addresses each expert in turn.

         1. Dennis Waller

         Dennis Waller is plaintiff's police practices expert. Both Kenny and the City move to exclude Waller's opinions. Defendants attack his qualifications, and the reliability and relevance of his opinions. The court will deny Kenny's motion for the most part; it will grant the City's motion in part.

         a. ...


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