United States District Court, S.D. Georgia, Savannah Division
SOLOMAN OLUDAMISI AJIBADE and ADENIKE HANNAH AJIBADE, as natural parents of Mathew Ajibade, and THE ESTATE OF MATHEW AJIBADE and CHRIS OLADAPO, its Executor, Plaintiffs,
JOHN WILCHER, in his official capacity as Chatham County Sheriff, et al., Defendants.
case arises from the January 2015 death of Mathew Ajibade
while in custody at the Chatham County Detention Center. Doc.
21 (Amended Complaint). He was arrested “in the throes of
an episode of mental illness, ” and the police
“were informed about his mental state and his need for
prescription medicine, and were even given the pill bottle at
the arrest to give to [him].” Id. at ¶ 2.
At the CCDC, however, Mathew was subjected to excessive
force. Id. at ¶ 3. No. medical care was
administered, and he died as a result of his injuries.
Id. at ¶¶ 4-5.
case has progressed through discovery and several defendants
have moved for summary judgment. See docs. 183, 189,
190, 191, 192, & 193. Defendant Sheriff Wilcher seeks to
exclude testimony from one of plaintiffs' expert
witnesses. Doc. 184. The expert, J.P. Gingras, is a certified
public accountant who plaintiffs offer to testify on
“decedent's economic loss of wages, loss and
benefits [sic] and loss of household services over an assumed
projected lifespan, with constant uninterrupted work at wage
levels up until retirement at the projected age of 67.”
Id. at 1. Wilcher objects that such testimony is
purely speculative and fails to satisfy the requirements of
Fed.R.Evid. 702 and Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Id.
respond that the motion should be denied summarily as
“[t]he Sheriff did not put in any evidence
whatsoever”; neither Gingras' expert report, nor
his CV, nor any deposition testimony are offered in support
of defendant's motion. Doc. 220 at 1. If the Court does
not accept that invitation, they argue that the motion should
be denied on the merits because “Gingras's
testimony is routinely admitted in court, ” and the
Sheriff's objections address the weight of Gingras'
testimony, not its admissibility. Id. at 1-2.
parties' briefs are not up to the standards this Court
expects. As plaintiffs point out, Wilcher has not provided
the Court with anything more than a cursory summary of
Gingras' proffered testimony. He describes the
“conjectural assumptions” of a
“report” without attaching or citing to that
report. See doc. 184 at 2. He has not even bothered
to include full case citations. See Id. at 2-3
(citing “United States v. Downing, 753 F. 2nd
1224, ” “Liu v. Korean Air Lines, 1993
WL 478343, ” and “JMJ Enterprises, Inc. v.
Via Veneto Italian Ice, Inc., 1998 WL 175888”). He
ultimately abandons even those abbreviated citations, and
resorts to a (mistaken) cross-reference. See Id. at
3 (citing to “JMJ Enterprises, Supra, Page 4,
” on page 3 of the brief; page 4 includes nothing but
counsels' signatures). In the absence of any specific
indication of Gingras' proposed testimony, Wilcher's
brief does not provide much of a showing of its inadequacy
under Rule 702 and Daubert. See doc. 184 at
plaintiffs bask in the glow of schadenfreude, their
own offering is only marginally better. To their credit, they
include full case citations. The cases they cite, however,
are not helpful. Judge Posner's ruminations, witty as
they may be, on the quality of an appellate brief do not
amount to a wholesale rejection of short briefs. See
Cent. States, Se. & Sw. Areas Health & Welfare Fund
v. Lewis, 745 F.3d 283, 286 (7th Cir. 2014) (criticizing
an appellate brief of “eight and a half pages, ”
of which “the first seven and a half pages [were]
simply a recitation” of factual and procedural
background). The Court agrees that Wilcher's brief is not
a paragon, but, as discussed below, its quality is ultimately
beside the point. Plaintiffs' reference to a recent case
in which Gingras' testimony was admitted is similarly
unhelpful. See doc. 220 at 2. The Northern District
of Georgia merely cited the applicable legal standards and
concluded, without any substantive discussion, that the
movant's “concerns . . . can be addressed through
cross-examination at trial and through the testimony of their
[sic] rebuttal expert . . . .” Woodard v.
Dempsey, 2016 WL 4079713 at * 2-3 (N.D.Ga. Aug. 1,
2016). Plaintiffs surely do not contend either that because
Gingras' testimony was admissible in one case, it must be
admissible here, or that because cross-examination and
counter-testimony were adequate there, they must be adequate
here. Finally, although plaintiffs lament that Wilcher's
failure to proffer “any evidence whatsoever”
leaves the Court with “no basis to rule on the
admissibility of Gingras's testimony - other than lawyer
argument, ” they do no more than curse the proverbial
the parties' efforts, the question presented by the
motion is ultimately simple. “[F]or expert testimony to
be admissible under Rule 702 of the Federal Rules of
Evidence, the proponent of the testimony must show that: (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, through the
application of scientific, technical, or specialized
expertise, to understand the evidence or to determine a fact
in issue.” Maiz v. Virani, 253 F.3d 641, 665
(11th Cir. 2001) (citation omitted). If the statement of the
standard left any doubt as to the location of the burden of
proof, it is clear that “‘[t]he burden of laying
the proper foundation for the admission of the expert
testimony is on the party offering the expert, and
admissibility must be shown by a preponderance of the
evidence.'” Cook ex rel. Estate of Tessier v.
Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1107 (11th
Cir. 2005) (quoting Allison v. McGhan Med. Corp.,
184 F.3d 1300, 1306 (11th Cir. 1999)); see also Jones v.
Anderson, 2018 WL 2717221 at * 5 (S.D. Ga. June 6, 2018)
(Baker, J.) (“The proponent of an expert opinion bears
the burden of establishing qualification, reliability, and
helpfulness by a preponderance of the evidence.”).
Indeed, “[w]here the [foundational] burden has not been
satisfied, Rule 702 precludes expert testimony, ” and
the burden “cannot be satisfied by conclusory arguments
and should not be taken lightly.” Jones, 2018
WL 2717221 at * 6; see also College Park Holdings, LLC v.
Racetrac Petroleum, Inc., 239 F.Supp.2d 1334, 1344
(N.D.Ga. 2002) (citing, inter alia, McCorvey v.
Baxter Healthcare Corp., 298 F.3d 1253 (11th Cir. 2002))
(“[T]he burden of establishing the standards for
admissibility rests with the proffering party.”).
closest plaintiffs come to an argument in favor of the
admissibility of Gingras' testimony is their reference to
a District of Colorado case, which they contend supports the
proposition that criticism of an accountant's
“‘assumptions and conclusions' . . .
‘go to the weight rather than the admissibility' of
an opinion.” Doc. 220 at 2 (quoting Jaffrey v.
PorterCare Adventist Health Sys., 2017 WL 5624572 at * 5
(D. Colo. Nov. 22, 2017)). Jaffrey may well
accurately represent the law on such challenges, but it does
nothing to alleviate the initial burden of proof. It implies,
moreover, that both the proponents and opponents of the
expert testimony proffered evidence. See Id. at * 1
(noting that, in addition to the original motion, response
and reply briefs were filed and an evidentiary hearing was
held). Nothing in Jaffrey's analysis, therefore,
undermines the conclusion that, in this circuit at least,
proponents - here the plaintiffs - bear the burden of
establishing the foundations for the admissibility of expert
testimony. As discussed below, it is the location of that
burden that determines the outcome here.
plaintiffs rightly point out, there is no evidence
bearing on the foundations of Gingras' testimony. Doc.
220 at 1. Their inference based on that total lack - that
Wilcher's motion should be summarily denied, id.
at 2 - is exactly backwards. It is plaintiffs'
burden to establish the foundations required by the Federal
Rules and Daubert. They have not borne that burden;
not only is there no preponderance of the evidence
on those foundations, there is no evidence at
The briefs themselves are not evidence. After all,
“[t]he ipse dixit of [a] lawyer is no better
than the ipse dixit of the expert in establishing
the foundation for admissibility of expert testimony.”
Jones, 2018 WL 2717221 at * 10. Given the utter lack
of foundation for Gingras' testimony, defendant's
motion must be, and is,
GRANTED. Doc. 184.
 For purposes of this brief synopsis
only, the facts alleged in the Amended Complaint are accepted
 Even assuming that “Page
4” refers to the cited case, and not the
“supra” reference, it appears to be a mistake.
Page * 4 of the cited, unpublished, out-of-district and
-circuit case, includes a discussion of Pennsylvania law on
damages, the unremarkable determination that “[a]bsent
a statutory exception, litigants must pay their own
attorneys' fees, ” and a paragraph recitation of
the factual background of the motion to exclude expert
testimony on lost profits. See JMJ Enters., Inc. v. Via
Veneto Italian Ice, Inc., 1998 WL 175888 at * 4 (E.D.
Pa. April 15, 1998). None of those discussions bear even
tangential relation to the proposition that an expert's
“assumptions [must be] grounded in facts and not merely
conjecture or surmises.” Doc. 184 at 3. The Court will
pass over in (relative) silence the grammatical idiosyncrasy
of the sentence itself.
 Even the limited description provided
in the brief is not obviously pertinent to the admissibility
of Gingras' testimony. As discussed below, the value of
attorneys' “ipse dixit” on such
matters is ...