Mitchum v. City of India

534 F.Supp.3d 1001

Gordon MITCHUM, Plaintiff,

v.CITY OF INDIANAPOLIS, Indianapolis Metropolitan Police Department (IMPD), Bryan Roach, Molly Groce, Does 1-50, Defendants.

No. 1:19-cv-02277-DLP-JPH

United States District Court, S.D. Indiana, Indianapolis Division.

Signed April 20, 2021

Annemarie Alonso, Derrick DeWayne Morgan, Jonathan Charles Little, Saeed & Little LLP, Indianapolis, IN, for Plaintiff.

Andrew Scheil, Anne Celeste Harrigan, Elise Bowling, Office of Corporation Counsel, Indianapolis, IN, for Defendants City of Indianapolis, Indianapolis Metropolitan Police Department (IMPD), Bryan Roach.

Andrew R. Duncan, Edward J. Merchant, John F. Kautzman, Martin Austin Brown, Ruckelshaus Kautzman Blackwell Bemis Duncan & Merchant, LLP, Andrew Scheil, Anne Celeste Harrigan, Elise Bowling, Office of Corporation Counsel, Indianapolis, IN, for Defendant Molly Groce.

Does 1-50, Pro Se.

ORDER

Doris L. Pryor, United States Magistrate Judge This matter comes before the Court on Defendants’ Motion to Strike the Expert Reports of Plaintiff's Experts, Kyle Heyen and Tim Hartsock, Dkt. [98]. Defendants seek to exclude the testimony of Plaintiff's expert witnesses, Kyle Heyen and Tim Hartsock, from consideration during the summary judgment phase. (Dkt. 98). This Motion is now fully briefed and ripe for decision. For the reasons discussed below, Defendants’ Motion is DENIED .

I. BACKGROUND

On June 7, 2019, Plaintiff Gordon Mitchum ("Plaintiff" or "Mr. Mitchum") initiated the present lawsuit pursuant to 42 U.S.C. § 1983. (Dkt. 1). Plaintiff alleges that on or about May 31, 2018, he and his wife were sitting on their back porch in Indianapolis while IMPD officers were in Mr. Mitchum's neighborhood searching for a suspect. (Dkt. 1 at 3). An IMPD canine, Obi, came around Mr. Mitchum's back yard onto the back porch and bit his left leg and right foot. (Id.). Plaintiff argues that the IMPD negligently released Obi, causing the dog to bite and attack an innocent bystander, in violation of Mr. Mitchum's 4th and 14th Amendment rights pursuant to 42 U.S.C. § 1983. (Dkt. 1 at 2-7; Dkt. 32 at 2).

Plaintiff timely served Defendants with notice of his two experts, Kyle Heyen and Tim Hartsock, on or before August 28, 2020. (Dkt. 68). Defendants filed the present motion to strike the expert reports of Mr. Heyen and Mr. Hartsock from consideration during summary judgment on January 11, 2021. (Dkt. 98). Defendants claim that the opinions of Mr. Heyen and Mr. Hartsock are neither relevant nor reliable, and request that this Court deem the opinions unqualified and inadmissible under Federal Rule of Evidence 702. (Dkt. 99). On February 19, 2021, Plaintiff filed a response in opposition to Defendants’ request for exclusion, and on March 5, 2021, Defendants filed a reply. (Dkts. 114, 118).

II. LEGAL STANDARD

The admission of expert testimony in federal courts is guided by Federal Rule of Evidence 702 ; Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; and C.W. ex rel. Wood v. Textron, Inc. , 807 F.3d 827, 834 (7th Cir. 2015). Federal Rule of Evidence 702 provides that expert testimony is admissible 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. Rule 702 allows an expert witness to testify about a relevant scientific issue in contention if his testimony is based on sufficient data and is the product of a reliable methodology correctly applied to the facts of the case. Gayton v. McCoy , 593 F.3d 610, 616 (7th Cir. 2010).

The Supreme Court in Daubert interpreted Rule 702 to mandate that the district court "must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. 2786. When making these determinations, the district court is the gatekeeper of expert testimony. Smith v. Ford Motor Co. , 215 F.3d 713, 718 (7th Cir. 2000). The Seventh Circuit maintains that "the key to the gate is not the ultimate correctness of the expert's conclusions. Instead, it is the soundness and care with which the expert arrived at her opinion." Textron , 807 F.3d at 834 (citing Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013) ).

As the gatekeeper, the trial court "must engage in a three-step analysis before admitting expert testimony." Gopalratnam v. Hewlett-Packard Co. , 877 F.3d 771, 779 (7th Cir. 2017). The court must determine if "the witness is qualified; whether the expert's methodology is scientifically reliable; and whether the testimony will ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’ " Id. "Put another way, the district court must evaluate: (1) the proffered expert's qualifications; (2) the reliability of the expert's methodology; and (3) the relevance of the expert's testimony." U.S. Sec. & Exch. Comm'n v. ITT Educ. Serv., Inc. , 311 F. Supp. 3d 977, 982 (S.D. Ind. 2018).

Steps one and two of the analysis – analyzing the expert's qualifications and examining the methodology the expert has used in reaching his conclusions – goes to the reliability of the proposed expert's testimony. Smith , 215 F.3d at 718. Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony. Gayton , 593 F.3d at 616.

A court's reliability analysis does not end, however, with its conclusion that an expert is qualified to testify about a given subject. Next, the court must examine the expert's methodology used to arrive at a particular conclusion. Gayton , 593 F.3d at 616. In assessing the reliability of the proffered expert's methodology, Daubert provides several guideposts, including: (1) whether the scientific theory has been or can be tested; (2) whether the theory has been subjected to peer-review and/or academic publication; (3) whether the theory has a known rate of error; and (4) whether the theory is generally accepted in the relevant scientific community. Textron , 807 F.3d at 835 ; Schultz , 721 F.3d at 431 (citing Daubert , 509 U.S. at 593-94, 113 S.Ct. 2786 ). This list is neither exhaustive nor mandatory. Textron , 807 F.3d at 835. Ultimately, reliability is determined on a case-by-case basis. Id. ; see also Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (stating that "the test of reliability is ‘flexible,’ and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case"). Rule 702 certainly permits testimony by an expert whose qualifications are based on his substantial experience. See Kumho , 526 U.S. at 152, 119 S.Ct. 1167. However, "[i]f the witness is relying solely or primarily on experience, [ ] the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Fed. R. Evid. 702, Advisory Committee Notes, 2000 Amendments (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc. , 43 F.3d 1311, 1319 (9th Cir. 1995) ).

Under step three of the Rule 702 analysis, the district court is tasked with analyzing the relevance of the proposed expert testimony. U.S. Sec. & Exch. Comm'n , 311 F. Supp. 3d at 982. The court examines whether the proposed expert testimony will assist the trier of fact with its analysis of any of the issues involved in the case. Smith , 215 F.3d at 718. "The question of whether the expert is credible or whether his or her theories are correct given the circumstances of a particular case is a factual one that is left for the jury to determine after opposing counsel has been provided the opportunity to cross-examine the expert regarding his conclusions and the facts on which they are based." Id. at 719. "It is not the trial court's role to decide whether an expert's opinion is correct. The trial court is limited to determining whether expert testimony is pertinent to an issue in the case and whether the methodology underlying that testimony is sound." Id.

III. DISCUSSION

Defendants argue that Mr. Heyen's lack of experience and continuing education render him unreliable under Rule 702. (Dkt. 99 at 6). As to Mr. Hartsock, Defendants contend that his lack of training and experience with law enforcement canines disqualify him as an expert witness. (Id. at 8). Plaintiff generally maintains that Mr. Heyen's years of experience as a law enforcement officer, canine trainer, and consultant on canine training render him qualified and his opinion reliable. (Dkt. 114). Plaintiff asserts that Mr. Hartsock is qualified and should be deemed reliable because of his years of experience in training civilian and law enforcement canines, as well as his commitment to continuing education. (Id.).

a. Qualifications

Under Rule 702, a party may introduce an expert opinion if the witness has the requisite "knowledge, skill, experience, training, or education." Anyone who has relevant expertise and can offer opinion testimony that is helpful to a judge or jury may qualify as an expert witness. See Tuf Racing Prod., Inc. v. Am. Suzuki Motor Corp. , 223 F.3d 585, 591 (7th Cir. 2000). Thus, in assessing an expert's qualifications, a court should consider the proposed expert's full range of education, experience, and training. LG Elec. U.S.A., Inc. v. Whirlpool Corp. , 661 F.Supp.2d 940, 951 (N.D. Ill. 2009).

i. Kyle Heyen

Mr. Heyen was a police officer in Wyoming from 1979 through 1987. (Dkt. 98-2). He was a trainer of law enforcement dogs and their handlers for over twenty-five years,...