United States District Court, M.D. Georgia, Valdosta Division
CAROLYN HALL, Administrator of the Estate of WALTER WAYNE PETERSON, Deceased, Plaintiff,
OFFICER ERIC FRIES, Individually and In His Official Capacity; SGT. SHAWN BOSTICK, Individually; THE CITY OF MOULTRIE; CHIEF FRANK LANG, Individually and In His Official Capacity; AND SHERIFF AL WHITTINGTON, Individually, Defendants.
HUGH LAWSON, Senior District Judge.
Before the Court are the Motion to Exclude Plaintiff's Expert (Doc. 60) by Defendants Officer Eric Fries, individually and in his official capacity, the City of Moultrie, and Chief Frank Lang, individually and in his official capacity (collectively "Moultrie Defendants"); the Motion to Exclude Plaintiff's Expert (Doc. 61) by Defendants Sgt. Shawn Bostick ("Bostick") and Sheriff Al Whittington ("Whittington"); Bostick and Whittington's Motion for Summary Judgment (Doc. 85); the Moultrie Defendants' Motion for Summary Judgment (Doc. 89); and Plaintiff's Motion for Leave to Amend Her Complaint (Doc. 115). For the reasons provided below, the motions to exclude Plaintiff's expert are granted in part and denied in part, the motions for summary judgment are granted, and the motion for leave to amend the complaint is denied.
I. Factual Summary
This case centers on the allegedly unreasonable use of force by Defendants in violation of the Fourth Amendment. On September 5, 2011, a clerk at the Best Little Store in Georgia reported to the Moultrie Police Department ("MPD") that someone he thought was Walter Wayne Peterson ("Peterson") had thrown a brick through the store's front window. After hearing a dispatch about the incident, MPD Officer Lamar McKnight ("McKnight") visited the Best Little Store in Georgia and learned from a witness that the person who had thrown the brick had run down the street and entered a house. (Moultrie Defendants' Statement of Material Facts ("Moultrie's SMF"), Doc. 91, ¶¶1-3).
McKnight went to the house and, standing at the front door knocking, heard noises indicating that the individual inside the house had gone to its rear. McKnight walked to the back door and found it ajar. (Id. at ¶¶6-7). Suddenly, Peterson slammed the door shut so forcefully that McKnight thought Peterson must have rammed his shoulder into the door. Then, through the closed door, McKnight heard Peterson say "these motherfuckers owe me money." Sounds from inside the house suggested Peterson was moving back toward the front door. (Bostick and Whittington's Statement of Material Facts ("Bostick/Whittington's SMF"), Doc. 85-2, ¶¶9-11). By this point, a second MPD officer, Rowell Leao, had come to the house. (Deposition of Lamar McKnight, Doc. 105, p. 38). Asking Leao to watch the rear door, McKnight returned to the front of the house. (Bostick/Whittington's SMF, ¶12).
When McKnight knocked on the front door, he heard what sounded like someone running toward the door. Suddenly the door swung open, and Peterson appeared holding a knife in his right hand. McKnight perceived Peterson's actions as being "very aggressive." The officer felt threatened, drew his weapon, and backed away from the door. In McKnight's haste to create distance between himself and Peterson, he stumbled and fell off the house's porch, landing in some bushes. Peterson then slammed the door shut. (Id. at ¶¶13-17). As McKnight was later to learn, Peterson suffered from paranoid schizophrenia. (Plaintiff's Statement of Material Facts ("Plaintiff's SMF"), Doc. 117, ¶15).
Other law enforcement officers arrived on the scene during this time, including Robert Rodriguez ("Rodriguez"), who was an officer with the MPD. McKnight described to Rodriguez what had taken place, and Rodriguez called his supervisor, who instructed him to summon the MPD's special weapons and tactical ("SWAT") team. (Bostick/Whittington's SMF, ¶¶18-19; Deposition of Robert Rodriguez, Doc. 106, pp. 25-26). The SWAT team is composed of law enforcement officers from both the MPD and the Colquitt County Sheriff's Department ("CCSD"). Eric Fries ("Fries"), a MPD officer and member of the SWAT team, was called to the house and relayed the request for the SWAT team to Shawn Bostick, who was the team's commander and a deputy sheriff with the CCSD. After Bostick arrived on the scene, he was informed that Peterson had broken the store window, gone into a house, and with a knife assaulted McKnight when the officer attempted to investigate the property damage. (Bostick/Whittington's SMF, ¶¶22-26). At some point in time, an officer with the CCSD swore out an arrest warrant on Peterson for aggravated assault against McKnight. (Plaintiff's SMF, ¶10).
Bostick assumed command of the area surrounding the house where Peterson was secured. Both before and after Bostick's arrival, a trained crisis negotiator on the SWAT team sought to communicate with Peterson via the public address system attached to the negotiator's patrol car. Peterson never responded to the negotiator. Hearing about the situation, Reginald Green ("Green") came to the house. As a supportive employment supervisor at the Colquitt County Mental Health Department, Green had worked with Peterson for over fourteen years. The SWAT team allowed Green to use a bullhorn for several minutes in an attempt to open a dialogue with Peterson, but there was no response from inside the house. In total, the efforts to communicate with Peterson lasted for more than two hours, without success. (Moultrie's SMF, ¶¶23, 27-36). During this time, the SWAT team learned of Peterson's mental health issues. (Plaintiff's SMF, ¶15).
After these failures to encourage Peterson to communicate with law enforcement, Bostick decided to try other means. Bostick ordered a throw phone, a two-way communication device,  to be placed on the house's front porch in the hope that Peterson would take the phone inside the house where he would feel more comfortable communicating with the SWAT team. The thrown phone was placed within two feet of the house's front door. Using the public address system on the patrol car, the officers informed Peterson that the phone was outside the door. He did not respond or retrieve the phone. Hoping that uncomfortable conditions inside the house would induce Peterson to use the phone, Bostick ordered the electrical power line to the house to be cut. This step elicited no response from Peterson. (Moultrie's SMF, ¶¶37-41).
Bostick decided to have the SWAT team breach the front door and toss the phone inside the house. Six SWAT team members lined up in a "stack" outside the front door. Tom Mothershed ("Mothershed") served as the point man in the stack and was equipped with a shield and a Taser. The SWAT team forced the door open with a battering ram, and almost immediately, Mothershed saw Peterson coming toward the door with a knife in his right hand. Mothershed shouted that Peterson had a knife and then discharged his Taser. It appeared to Mothershed that Peterson continued toward the front door, which slammed shut. The officer immediately attempted to open the door, but he could not do so, leading him to think that Peterson was either lying against the door, having been immobilized by the Taser, or pushing on it to prevent the officers from entering the house. (Id. at ¶¶42-47, 49-51).
Watching the commotion on the front porch from a distance, and observing Mothershed deploy the Taser, Bostick thought there was an opportunity for the SWAT team to enter the house by the back door while Peterson was, so Bostick believed, incapacitated near the front door. Running to the rear of the house to a group of officers waiting by the back door, Bostick ordered them to enter the house while Peterson was still immobilized by the Taser. Eric Fries was one of the officers waiting by the back door. Leading the way into the house, Fries kicked open the rear door of the residence and entered a laundry and storage room that was too small to allow for many of the other officers to follow him into the room. Fries then encountered a bedroom door, which he was only able to breach after three kicks. (Id. at ¶¶52-56, 60-63).
With the last kick, the door opened, and Fries encountered Peterson. The man was standing approximately two to three feet in front of Fries and wielding a butcher knife that he was slashing at the officer in a downward, stabbing motion. Fries stepped backward, drew his firearm, and shot at Peterson three times, before falling backward and injuring his head. A subsequent test for gunshot residue on Peterson indicated that he was no closer than three to five feet from Fries when the shots were fired. After Fries fired at Peterson, the suspect turned and ran into the interior of the house. (Id. at ¶¶64-70, 76-77). Members of the SWAT team followed Peterson toward the front of the house where they found him lying on the ground near a set of drums by the front door with his back toward the officers. One of the officers told Bostick that Peterson still had the knife. Because Peterson had not yet been taken into custody and appeared to be getting up from the floor, Bostick ordered him to be tased twice. Shortly thereafter, discovering that Peterson had been shot, Bostick told the paramedics to provide medical treatment, but, despite their efforts, Peterson died soon afterwards from his gunshot wounds. (Bostick/Whittington's SMF, ¶¶88-90).
Plaintiff Carolyn Hall ("Plaintiff"), as the administrator of Peterson's estate, filed suit in this Court on July 31, 2013. (Complaint, Doc. 1). Defendants have been added and removed from the lawsuit through the stipulated dismissal of certain defendants (Stipulation of Dismissal, Doc. 35), Plaintiff's amendment of her complaint (First Amended Complaint, Doc. 32), and this Court's dismissal of other defendants (Order, Doc. 45). The remaining defendants are the City of Moultrie; Eric Fries, individually and in his official capacity as a police officer; Frank Lang, individually and in his official capacity as chief of the MPD; Shawn Bostick in his individual capacity; and Colquitt County Sheriff Al Whittington in his individual capacity.
Plaintiff has brought a variety of federal and state claims. The first claim, pursuant to 42 U.S.C. § 1983, is that Defendants violated Peterson's rights under the Fourth and Fourteenth Amendments to the United States Constitution by an unreasonable use of excessive force against him. According to Plaintiff, Fries acted unreasonably in shooting Peterson instead of using a less forceful means to stop him. Bostick violated Peterson's constitutional rights in how he supervised the SWAT team and by ordering Peterson to be tased even after the suspect had been shot by Fries. The City of Moultrie, Chief Lang, and Sheriff Whittington are allegedly liable under § 1983 because they failed to implement policies, customs, procedures, or training that would have prepared the SWAT team in how to handle suspects known to be suffering from paranoid schizophrenia, particularly when the suspects are barricaded inside a house. Prior to Peterson's death, two other mentally-ill men had been shot and killed by MPD officers in the late 1990s and 2006. Moreover, the city, police chief, and sheriff ratified the actions of the SWAT team by failing to investigate or punish its members who had been involved in Peterson's death or the prior shootings. The Defendants also face state-law claims for negligence, battery, wrongful death, a survival action, and violations of the Georgia Constitution, while seeking attorney fees pursuant to 42 U.S.C. § 1988. (First Amended Complaint, ¶¶1, 35-97).
II. Defendants' Motions to Exclude Plaintiff's Expert
The motions to exclude some of the opinions of Plaintiff's expert Joseph Burton ("Burton") are granted in part and denied in part. Defendants contend that certain opinions must be excluded because they were not disclosed within the time set by this Court's scheduling order, pursuant to Federal Rule of Civil Procedure 26, and they do not meet the standard set by Federal Rule of Evidence 702 and the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Hired by Plaintiff as a forensic pathologist, Burton offered three opinions in his deposition that have elicited objections from Defendants. First, Burton stated that it was possible, although not probable, that in seven seconds Peterson would have been able to go from the front door of the house to the rear where he confronted Fries and then back to the front door. Nor was it probable, even if possible, for Peterson to get from his confrontation with Fries back to the front room in three seconds. Second, Burton did not think that Peterson would have been able to continue holding the knife in his right hand after being shot by Fries and tased by the other officers. Third, the pathologist offered opinions about the various positions Peterson and Fries could have been in at the time of the shooting that would account for the trajectory of the bullets through Peterson's body. (Deposition of Joseph Burton, M.D., Doc. 70, pp. 15-18, 22-32).
A. Compliance with Rule 26
Only some of Burton's opinions must be excluded for Plaintiff's failing to comply with Rule 26. Under Rule 26(a)(2)(B), a party's disclosure of an expert whose testimony will be relied on must be accompanied by a written report containing "a complete statement of all opinions the witness will express and the basis and reasons for them, " "the facts or data considered by the witness in forming them, " and "the witness's qualifications" to render those opinions. If the district court sets a deadline for expert disclosures, the expert must be disclosed by then. Rule 26(a)(2)(D). If a party fails to meet Rule 26's disclosure requirements, "the party is not allowed to use the information or witness to supply evidence on a motion... or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. Pro. 37(c)(1); see also Prieto v. Malgor, 361 F.3d 1313, 1317-18 (11th Cir. 2004). The non-disclosing party has the responsibility of showing that its actions were harmless or substantially justified. Stallworth v. E-Z Convenience Stores, 199 F.R.D. 366, 368 (M.D. Ala. 2001).
The deadline for Plaintiff to disclose any expert she wished to use was August 6, 2014, (Order, Doc. 52); the deadline for supplementing an expert's report was November 30, 2014 (Order, Doc. 57, p. 1). While Plaintiff disclosed Burton to Defendants and provided them with his report within the timeframe set by the Court's orders, she never supplemented that report. The beginning of Burton's report states that he had been "asked to determine the approximate muzzle to target distance for the gunshot wounds which resulted in the death of Mr. Peterson." (Burton Report, Doc. 60-1, p. 2). Burton concluded that when Fries's gun was discharged Peterson was more than five feet away from the gun's muzzle. The pathologist also opined on the trajectories of the bullets as they passed through Peterson. Finally, Burton described how getting shot "would not have resulted in [Peterson's] instantaneous collapse or death, " and the suspect could have remained mobile. (Id.)
In light of the opinions outlined in the report, some of the statements Burton made in his deposition were elaborations on the report while other remarks certainly constitute new opinions. On the one hand, Burton's report unambiguously addresses how physically mobile Peterson might have been after the shooting, so Burton's calculating whether Peterson could have covered some distance in a particular timeframe should not have been surprising, and certainly is not unfairly prejudicial, to Defendants. On the other hand, the report failed to notify Defendants that Burton would be offering opinions about Peterson's grip strength and whether the suspect could have continued grasping the knife in his right hand after getting shot and tased. Plaintiff has offered no plausible explanation for why the omission of this opinion from Burton's expert report is substantially justified, and it was certainly not harmless given that counsel for Defendants could not adequately prepare to depose Burton or seek a rebuttal expert opinion. See McClain v. Metabolife Int'l, Inc., 193 F.Supp.2d 1252, 1259 (N.D. Ala. 2002) (observing that "merely having to depose a party on information that should have been disclosed in a Rule 26 Report is a form of prejudice"). Therefore, pursuant to Rule 37(c)(1), the opinion that Peterson would have been unable to continue holding a knife in his right hand is excluded.
On the spectrum of opinions that were adequately disclosed in or omitted from Burton's expert report, his opinions concerning how Fries's and Peterson's bodies might have been positioned at the time of the shooting fall somewhere in the middle. The Court questions whether a reasonable party could have known from the report that Burton would be rendering these opinions, the reasons for his conclusions, the facts and data he considered, and his qualifications to provide the resulting opinions, as Rule 26 requires. However, because these opinions largely must be excluded under the Daubert standard, the Court will not consider whether they should also be excluded under Rule 37.
B. The Analysis of Burton's Opinions under Daubert and Rule 702
Few of the remaining disputed opinions from Burton survive Daubert scrutiny. A party wishing to have a witness testify as an expert bears the burden of laying, by a preponderance of the evidence, a foundation for the admission of its expert's testimony. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002) (quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999)). Whether certain opinions may be offered as expert testimony is determined by the standard stated in Federal Rule of Evidence 702:
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.
As the Supreme Court clarified in Daubert, a trial court must act as a "gatekeeper" and test the reliability and relevancy of the proposed expert's opinions before determining whether they can be admitted as expert testimony. 509 U.S. at 589-93 The trial judge must undertake a "rigorous three-part inquiry" and decide whether: (1) a proposed expert is qualified to competently testify concerning his opinions; (2) his methodology is sufficiently reliable; and (3) his testimony would assist the jury, through the application of scientific, specialized, or technical expertise, to determine a fact in issue or understand the evidence. United States v. Fazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). The Supreme Court has provided a non-exclusive list of factors that may be considered in weighing the reliability of an expert's theory or methodology, including "(1) whether it can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) what its known or potential rate of error is, and whether standards ...