Bratt v. Genovese, Case No: 8:13-cv-3210-T-36AEP

MICHAEL BRATT and MARJORIE YOUMANS, Plaintiffs, v. LOUIS GENOVESE, STEVEN GEORGE, KENNETH VAN TASSEL and JOHN GORE, Defendants.

Case No: 8:13-cv-3210-T-36AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

December 12, 2017

ORDER

This matter comes before the Court upon the Defendants' Motion to Strike Expert Testimony of Arthur Young (Doc. 74), Plaintiffs' response in opposition, (Doc. 85), Defendants' Motion to Strike Testimony of Plaintiffs' Expert Witness, Larry Gibbs Turner (Doc. 75), and Plaintiffs' response in opposition (Doc. 84). The Court, having considered the motions, heard argument from counsel and being fully advised in the premises, will grant-in-part and deny-in-part Defendants' Motion to Strike Expert Testimony of Arthur Young and will grant-in-part and deny-in-part Defendants' Motion to Strike Testimony of Plaintiffs' Expert Witness, Larry Gibbs Turner.

I. BACKGROUND

Plaintiffs Michael Bratt and Marjorie Youmans allege in this action that Deputy George trespassed onto their private residential property without cause or reasonable suspicion of criminal activity. See Doc. 41 at 2. As described in this Court's Order on the Defendants' Motions for Summary Judgment (Doc. 151), Deputy George was responding to a noise complaint made by the Plaintiffs' neighbors. After speaking to the neighbors, he approached the Plaintiffs' property, jumped over the four foot fence surrounding it and knocked on the door. Bratt opened the door, upon which Deputy George informed him he was with the Hernando County Sheriff's Office and showed his badge. The events that happened next are in dispute. Bratt essentially accused Deputy George of trespassing, Youmans began to move towards Deputy George and Bratt put his arm across her chest to prevent her from approaching Deputy George. Deputy George yelled "domestic violence" and pushed open the door. Bratt attempted to shut the door, Deputy George tasered Bratt, and an altercation ensued. The encounter led to the arrest of both Plaintiffs. During the course of the arrest, Bratt and Deputy George suffered injuries that resulted in bleeding.

The parties dispute the circumstances surrounding the physical altercation between Bratt and Deputy George. Plaintiffs retained the services of Arthur Young, an expert in forensic serology, DNA analysis, and bloodstain analysis¹. Young reviewed photographs of the bloodstains on the floor, on the walls, and throughout the house. He also reviewed photographs of Bratt and Deputy George taken after the incident. Plaintiffs argue that Young's testimony is essential because bloodstain analysis, including directional blood flow, time lapse, and drip and spatter patterns, are beyond the knowledge of the average juror, and are therefore appropriate for expert testimony.

Plaintiffs also retained the services of Larry Gibbs Turner to opine on the constitutionality of Deputy George's actions and whether they conformed to the requirements set forth in the Fourth Amendment to the United States Constitution regarding searches and seizures. Mr. Turner opined that Deputy George violated the Fourth Amendment because he did not have a warrant, probable cause or any other exceptions to the warrant requirement available to him to justify his trespass on the property. Plaintiffs argue that Turner's testimony is essential to explain the constitutional lawand police procedure regarding entry onto private property, exigent circumstances permitting law enforcement to enter private property, and the legal standards of care applicable to law enforcement officers in these situations, which are beyond the knowledge of the average juror.

II. LEGAL STANDARD

Rule 702 governs the admissibility of expert testimony. It states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of 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. In Daubert v. Merrell Dow Pharmaceuiticals, Inc., the Supreme Court charged district courts with a "gatekeeping function" of "ensur[ing] that any and all scientific testimony or evidence is not only relevant, but reliable." 509 U.S. 579, 589 (1993). See also United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). Accordingly, the admission of such testimony is a matter within the discretion of the district court. Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1108 (11th Cir. 2005). In performing its gatekeeping function, the Court must consider whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address, (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert, and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Chem., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). The proponent of the challenged expert opinion testimony carries the burden ofproving its reliability by a preponderance of the evidence. Id. (citing Daubert, 509 U.S. at 592-93 & n. 10).

III. DISCUSSION

a. Arthur Young

Plaintiffs disclosed Mr. Young as an expert on the subject of bloodstain pattern analysis. He made several opinions based on his review of photographs from the scene of the incident. Defendants argue that Mr. Young's opinions do not comport with the reliability threshold set forth in Daubert and request that his testimony be excluded from trial. Specifically, Defendants argue that merely viewing photographs is not a scientific methodology under Daubert and the assumption that all red or brown stains in the photographs is faulty due to lack of testing. Further, Defendants challenge three specific opinions: 1) Mr. Bratt bled a minimum of 15 minutes, Young Report² at 4; 2) Deputy George did not crawl to the front door to unlock it based on the drip pattern in the photographs, id. at 9, 11, 13; and 3) Deputy George's head did not strike the table. Id. at 12.

Mr. Young issued a 27-page report and sat for a deposition. He reviewed 40-50 photographs, 25 of which are in his report. Young Dep.³ 61:19-21. He also examined and photographed the shorts Bratt was wearing on the date of the incident. Young Report at 15-22. Mr. Young did not visit the property where the incident occurred, Young Dep. 55:1-2; did not interview the Plaintiffs or any other witnesses, id. at 55:3-9; and did not remove samples from Bratt's shorts for analysis. Id. 68:23-69:2. Mr. Young did not conduct testing to confirm that the images in the photographs represented blood, or to determine whose blood it was. Young Dep. at 81:11-18, 162:17-25, 163:24-164:2. Young admits to several limitations in his opinions including that he isnot able to determine that a substance is blood by looking at a photograph, id. at 163:5-9; testing is required to confirm the presence of blood, id. at 171:14-18; and his conclusions are limited by the quality of the photographs. Id. at 176:12-22.

Defendants argue both that Mr. Young is not qualified as an expert in bloodstain analysis and that his opinion is not scientifically reliable.

i. Mr. Young is sufficiently qualified

The Court concludes that Mr. Young meets the minimum requirements to testify competently regarding bloodstain pattern analysis. See Young Dep. 23:2-9, 26-27, 45-49 (testimony that he attended two seminars for about two weeks on the subject of blood stain pattern analysis, he has a degree in pre-medical sciences and decades of experience, and he has testified in 80 criminal cases going back to 2002, at least once in federal court, and he is an expert in photography which aided his bloodstain pattern analysis in this case).⁴ A review of his curriculum vitae indicates that he has the knowledge, skill, experience, and training necessary to be an expert in bloodstain analysis. See Doc. 74-1 at 28-35; Correll v. Secretary Dept. of Corr., 932 F. Supp. 2d 1257, 1295 (M.D. Fla. 2013) (finding the expert qualified in blood spatter analysis based on her training and experience, not on her educational background). As to the reliability of Mr. Young's testimony, the Court will address the Daubert and Rule 702 factors below.

ii. The methodology is sufficiently reliable

There is no evidence in the record that Mr. Young's methodology of observing fluids and stains in photographs as a means of identification has been tested, or has been subjected to peer review or publication. But location of bloodstains and blood spatter has been used to determinethe nature of a struggle or movement during a struggle or confrontation. See, e.g., Correll, 932 F. Supp. 2d at 1295 ("[S]he was—in a believable and effective way through blood spatter analysis—able to demonstrate to the jury and to the court exactly how [defendant] went about killing these four people."). Blood splatter experts sometimes rely on photographs of the scene to make their opinions. See, e.g. Durst v. Rapelje, 483 Fed. Appx. 36, 48 (6th Cir. 2012) (noting that blood spatter expert opinion and testimony was based on photographs rather than in-person examination and quoting expert to say "it's not unusual for me to only receive photographs, write a report based on it...."); Harrington v. Richter, 562 U.S. 86, 96 (2011) (noting appellant's reliance on statement from an expert in bloodstain analysis who relied on photographs to form an opinion regarding source of blood at a crime scene).

Young did no...