Andersen v. City of Chi.

454 F.Supp.3d 808

Daniel ANDERSEN, Plaintiff,

v.The CITY OF CHICAGO, et al., Defendants.

No. 16 C 1963

United States District Court, N.D. Illinois, Eastern Division.

Signed April 14, 2020

Jonathan I. Loevy, Roshna Bala Keen, Arthur R. Loevy, Elliot Robert Slosar, Gayle M. Horn, Heather Lewis Donnell, John Thomas Hazinski, Joshua Alan Tepfer, Lindsay Hagy, Loevy & Loevy, Chicago, IL, Plaintiff.

Eileen Ellen Rosen, Catherine MacNeil Barber, James Bryan Novy, Patrick R. Moran, Stacy Ann Benjamin, Theresa Berousek Carney, Rock Fusco & Connelly, LLC, Misha Itchhaporia, Steven Blair Borkan, Timothy P. Scahill, Emily Erin Schnidt, Krista Eleanore Stalf, Borkan & Scahill, Ltd., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Virginia M. Kendall, United States District Judge

Plaintiff Daniel Andersen was convicted of the murder and attempted rape of Cathy Trunko and spent over twenty-five years in prison. In 2015, Andersen's conviction was reversed, and he received a Certificate of Innocence. Andersen proceeded to sue the City of Chicago and various members of Chicago law enforcement involved in the case. (Dkt. 1). Andersen alleges violations of his constitutional rights, pursuant to 42. U.S.C. § 1983, and several state-law claims.

The Court assumes familiarity with the facts of this case, as the Court recently provided a detailed background in Andersen v. City of Chicago , No. 16 C 1963, 2019 WL 6327226 (N.D. Ill. Nov. 26, 2019). In summary, in January 1980, Trunko died after being stabbed. A few days after her death, Chicago Police recovered a knife near the scene that they believed to be the murder weapon. In the week following Trunko's death, Andersen was arrested on a disorderly conduct charge and was questioned about Trunko. Andersen eventually confessed to killing Trunko—a confession that he says was coerced. Andersen proceeded to a jury trial, where he was convicted of the murder and attempted rape of Trunko. Andersen remained in custody from the time of his arrest in 1980 through trial, and up until his release from prison in April 2007. In August 2015, Andersen's conviction was reversed, and in December 2015, he was granted a Certificate of Innocence by the Circuit Court of Cook County.

Defendants have moved to bar the testimony of Dennis Waller, one of Andersen's police-practices experts. (Dkt. 395). The Court held a hearing on the motion on January 29, 2020. (Dkt. 473). For the following reasons, the motion is granted in part and denied in part.

LEGAL STANDARD

"The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals , Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)." Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 705 (7th Cir. 2009). Trial judges act as gatekeepers to screen expert evidence for relevance and reliability. Daubert , 509 U.S. at 589, 113 S.Ct. 2786 ; see also C.W. ex rel. Wood v. Textron, Inc. , 807 F.3d 827, 834 (7th Cir. 2015). Under Rule 702, a "witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion" if the following conditions are satisfied:

(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. In other words, "the key to the gate is not the ultimate correctness of the expert's conclusions ..., it is the soundness and care with which the expert arrived at her opinion." Schultz v. Akzo Nobel Paints, LLC , 721 F.3d 426, 431 (7th Cir. 2013). In evaluating the expert's proposed testimony, the Court should "scrutinize proposed expert witness testimony to determine if it has the same level of intellectual rigor that characterizes the practice of an expert in the relevant field so as to be deemed reliable enough to present to a jury." Lapsley v. Xtek, Inc. , 689 F.3d 802, 805 (7th Cir. 2012) (internal quotation marks omitted).

The Court utilizes a three-part analysis when applying the Daubert framework to proposed Rule 702 evidence. The Court determines (1) "whether the witness is qualified"; (2) "whether the expert's methodology is scientifically reliable"; and (3) "whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue." Myers v. Illinois Cent. R. Co. , 629 F.3d 639, 644 (7th Cir. 2010) (internal quotation marks omitted); see also Gopalratnam v. Hewlett-Packard Co. , 877 F.3d 771, 779 (7th Cir. 2017). The expert's proponent bears the burden of demonstrating that the testimony would satisfy the Daubert standard by a preponderance of the evidence. See Gopalratnam , 877 F.3d at 782 ; see also Fed. R. Evid. 702 advisory committee's note to 2000 amendment.

DISCUSSION

Andersen retained Waller to opine on the propriety of certain actions taken by law enforcement in Andersen's criminal case. Waller opined that, in investigating Andersen, officers' documentation and interrogation practices were not in line with accepted police practices. (See generally , Dkt. 395-1). Defendants seek to bar Waller's testimony on the grounds that he is not qualified to render opinions in this case, he failed to apply a reliable methodology, and his opinions would not be helpful to the jury.

I. Qualifications

Defendants argue that Waller is not qualified to opine on the police practices in this case because he has very little experience investigating homicides. They also say that he has opined on false confessions, DNA evidence, polygraphs, and legal standards without sufficient experience to do so.

The Court concludes that Waller is qualified to opine on police practices generally. Waller has degrees in police administration and public administration, in addition to over 3,600 hours of additional law enforcement training from various institutions. (Dkt. 395-1 at 1; Dkt. 411-2 at 3). He spent nearly two decades as a law enforcement officer, in roles spanning police officer, to Sergeant, to Chief of Police. (Dkt. 395-1 at 1; Dkt. 411-2 at 1). He also has experience training officers; he spent several years as the director of a police training academy. (Dkt. 395-1 at 1–2; Dkt. 411-2 at 1). He has been trained as an assessor for the Commission on Accreditation for Law Enforcement Agencies and is a certified police instructor in several states. (Dkt. 395-1 at 1; Dkt. 411-2 at 2–3). He has trained "hundreds of officers" on topics including investigations, report writing, interrogation, and more. (Dkt. 395-1 at 2). He also serves as a member of a number of professional associations in the field of law enforcement. (Dkt. 411-2 at 2).

Waller is qualified by nature of his academic training, his experience in law enforcement, and his experience in law enforcement training. See Trustees of Chicago Painters & Decorators Pension, Health & Welfare, & Deferred Sav. Plan Tr. Funds v. Royal Int'l Drywall & Decorating, Inc. , 493 F.3d 782, 787 (7th Cir. 2007) ("This court has recognized that while extensive academic and practical expertise in an area is certainly sufficient to qualify a potential witness as an expert, Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience." (internal quotation marks omitted)). Waller's opinions primarily go to report writing and interrogation practices, two areas in which he has experience. (See, e.g. , Dkt. 395-1 at 2; Dkt. 473 at 20:19–20:21); cf. United States v. Truitt , 938 F.3d 885, 889–90 (7th Cir. 2019) (noting that a generalist can speak to specialized subjects he has experience with, but not those he does not). To the extent that Defendants want to highlight the lack of experience Waller may have, for example in personally investigating homicides or in taking subjects to be polygraphed, they may do so through cross-examination. See Sheldon v. Munford, Inc. , 950 F.2d 403, 410 (7th Cir. 1991) ("Once the district court has found a sufficient foundation for an expert's testimony, it properly leaves questions concerning his methodology, findings, and expertise to cross-examination.").

Waller will not, however, be permitted to opine that the knife was not the murder weapon. (See, e.g. , Dkt. 395-1 at 13 ("Subsequent DNA analysis of the knife established that the blood on the suspect knife was not linked to either Cathy Trunko or Daniel Andersen.")). Although there is factual support for the premise that the knife may not be the murder weapon, that support comes from DNA testing. Waller is not qualified to discuss or opine on this testing as he is not a DNA expert. See, e.g. , Harris v. City of Chicago , No. 14 C 4391, 2017 WL 2436316, at *15 (N.D. Ill. June 5, 2017) (noting that, although there was factual support for an opinion that a victim's death was accidental, false-confessions expert was not permitted to opine on the subject because it was not within his expertise).

Waller will likewise not be permitted to testify that Andersen's confession was, in fact, false, that the officers "concocted" his confession, or that the tactics used in this case were likely to result in a false confession. (See, e.g. , Dkt. 395-1 at 18, 25). Nothing in Waller's experience qualifies him as an expert on false confessions and he will not be permitted to opine on the subject. Further, whether Andersen is innocent and whether his confession was false are disputes at the heart of this case and must be left to the jury. See, e.g. , Harris , No. 14 C 4391, 2017 WL 2436316, at *16 (noting that whether a confession was false, even where a Certificate of Innocence was obtained, was a question for the jury); Caine v. Burge , No. 11 C 8996, 2013 WL 1966381, at *3 (N.D. Ill. 2013) ("However,...