United States District Court, M.D. Georgia, Columbus Division
SHAMANIQUE FLINT, as the surviving parent and administrator of the Estate of Zikarious Flint, Plaintiff,
OFFICER BENJAMIN SCOTT, Defendant.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE.
party seeks to exclude testimony from the other party's
expert (ECF Nos. 24 & 31). For the reasons explained in
the remainder of this Order, those motions are denied to the
extent described below.
parties have identified “use of force” experts.
Plaintiff's use of force expert opines that Defendant
used excessive force when he shot and killed Plaintiff's
son. Defendant's expert opines that his actions were
reasonable under the circumstances and that he did not use
excessive force. In the Eleventh Circuit, “[t]estimony
by [use of force] experts is generally admissible as long as
the jury is properly informed that the expert is testifying
only ‘regarding prevailing standards in the field of
law enforcement.'” Ayers v. Harrison, 650
F. App'x 709, 719 (11th Cir. 2016) (per curiam) (quoting
Samples v. City of Atlanta, 916 F.2d 1549, 1551
(11th Cir. 1990)). Therefore, no blanket prohibition against
“use of force expert testimony” has been adopted
in this Circuit. To determine whether the specific opinions
of the parties' experts are otherwise inadmissible, the
Court analyzes the proffered testimony under Federal Rule of
Rule 702, the Court serves as the gatekeeper “to keep
out irrelevant or unreliable expert testimony.”
United States v. Ala. Power Co., 730 F.3d 1278, 1282
(11th Cir. 2013) (citing Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 145 (1999) and Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)).
“This gatekeeping role, however, ‘is not intended
to supplant the adversary system or the role of the jury:
vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but
admissible evidence.'” Id. at 1282
(quoting Allison v. McGhan Med. Corp., 184 F.3d
1300, 1311-12 (11th Cir. 1999)).
evaluating the admissibility of expert testimony under Rule
702, 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 . . .; and
(3) the testimony assists the trier of fact . . . to
understand the evidence or to determine a fact in
issue.” United States v. Frazier, 387 F.3d
1244, 1260 (11th Cir. 2004) (en banc). These basic
requirements of qualification, reliability, and helpfulness
“remain distinct concepts” not to be conflated.
Id. The Court's goal is to ensure that an expert
“‘employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field.'” Id.
(quoting Kumho Tire, 526 U.S. at 152). To allow the
testimony to be considered by the jury, the Court must find
that “‘it is properly grounded, well-reasoned,
and not speculative . . . .'” Id. at 1262
(quoting Fed.R.Evid. 702 advisory comm. note (2000 amends)).
Plaintiff's Motion to Exclude Defendant's
identified Scott Johnson, a retired Georgia State Patrol
lieutenant with twenty years of law enforcement experience,
as his expert witness. Plaintiff objects to seventeen of
Johnson's opinions. These objections follow the same
formula--attack the opinions as unsupported by the factual
record, criticize the opinions as lacking explanation or
analysis, and paint the opinions as “legal
conclusions.” The Court finds these objections
unpersuasive. Johnson's report indicates that he reviewed
and relied on all the materials in the Georgia Bureau of
Investigation (“GBI”) report regarding the
shooting to form his opinions and that he visited the scene
and interviewed Defendant. His report then describes the
events leading up to the shooting in detail. See
Pl.'s Mot. to Exclude, Johnson Expert Report 5-6, ECF No.
31-1 [hereinafter Johnson Report]. Plaintiff's
disagreement with Johnson's interpretation of the facts
from these sources does not make Johnson's opinion
factually unsupported. The Court is satisfied that
Johnson's opinions are supported by a sufficient factual
Court also rejects Plaintiff's suggestion that
Johnson's opinions must be excluded because his analysis
is not sufficiently detailed. Johnson clearly states the
basis of his opinions, which he formulated from his
“training, education, knowledge, experience, and
professional qualifications in police operations, practices,
and procedures.” He adequately explains why he believes
Defendant's conduct was appropriate and he provides his
opinions “within a reasonable degree of professional
certainty.” Id. at 5. The Court finds no
“analytical gap” between Johnson's facts and
opinions that justifies exclusion of the testimony. His
testimony is not of the “I'm an expert, just trust
me” variety. He has adequately explained the basis for
opinions are also not inadmissible simply because they may
embrace an ultimate issue in the case. See Fed. R.
Evid. 704(a). Police officers must abide by the Fourth
Amendment's “reasonableness” standard, and a
use of force expert like Johnson may opine as to whether he
thinks Defendant's conduct conformed to that standard.
also attacks the following specific aspects of Johnson's
opinions. Johnson opines that (1) Defendant was in a position
of disadvantage during the pursuit; (2) Defendant's
decision to hit Plaintiff's son with his vehicle was
reasonable; and (3) the less-lethal uses of force employed by
Defendant and his fellow officer were reasonable. Johnson
Report at 5-6. Plaintiff argues that these opinions are
irrelevant and unhelpful to the jury. The Court disagrees.
These opinions explain what alternative steps were taken by
the officers before using deadly force, how Plaintiff's
son reacted, and how a reasonable officer would have
perceived the fleeing suspect's conduct before the
shooting. These steps form the “totality of
circumstances” relevant to Defendant's later
decision to use deadly force. This testimony is admissible.
also objects to the following opinions: (1) Defendant could
not “tactically engage” Plaintiff's son when
Defendant was in his vehicle; (2) Defendant had a difficult
duty to protect bystanders from a fleeing, armed suspect; and
(3) Plaintiff's son was a threat to officers and
bystanders during the pursuit. Id. Plaintiff argues
that these opinions are not based on specialized knowledge
and should be excluded as unnecessary. But Johnson's
report indicates that his opinions are based on his
decades-long career in law enforcement and his thousands of
hours of specialized training. The average layperson is not
familiar with law enforcement tactics, the issues that law
enforcement officers must consider when pursuing a suspect,
the factors an officer must consider before using deadly
force, or the general standards governing police conduct.
These opinions are certainly based on Johnson's
specialized expertise and could assist the jury in
determining whether Defendant's conduct was reasonable.
They are admissible.
does make a couple of observations about Defendant's
predisposition and emotional state that should be excluded.
As part of the investigation, the GBI conducted a recorded
walk through of the incident with Defendant. Johnson reviewed
this recorded walk through, along with Defendant's
training and personnel file, and opined that Defendant had no
predisposition to shoot Plaintiff's son and that
Defendant was genuinely emotional when recounting the
incident. Id. at 6. These opinions are not helpful
to the jury and do not require specialized knowledge such
that expert testimony is necessary or appropriate. While
Johnson may opine about what Defendant encountered, how a
reasonable officer would have reacted, and whether
Defendant's conduct conformed to standard police
practices, he may not opine on Defendant's credibility
through expert testimony. Further, whether Defendant was
predisposed to fire his weapon before the incident or was
genuinely emotional after the incident does not help a jury
determine whether Defendant's actual firing of the weapon
was objectively reasonable. Therefore, the Court
excludes these opinions.
Defendant's Motion to Exclude Plaintiff's
seeks to exclude the testimony of Plaintiff's expert
because Plaintiff did not adequately disclose his opinions in
a timely manner. During discovery, Plaintiff disclosed Byron
Hickey as a use of force expert pursuant to Federal Rule of
Civil Procedure 26(a)(2). Hickey is a retired Columbus Police
Department officer with thirty years of experience. Plaintiff
provided a cursory report that listed Hickey's
qualifications, the materials he would rely on, and a summary
of his expected opinions. This report totaled two pages.
See Def.'s Mot. to Exclude Pl.'s Expert Ex.
1, Pl.'s Disclosure of Expert Test., ECF No. 24-1. After
the discovery period ended, Defendant moved to exclude the
report as lacking any factual basis or analysis. In response,
Plaintiff supplemented the expert report under Federal Rule
of Civil Procedure 26(e). Hickey's
“supplemented” report totals fifteen pages.
Pl.'s Resp. to Def.'s Mot to Exclude Ex. A, Hickey
Expert Report, ECF No. 30-1. ...