The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GIBBS * CIVIL ACTION
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VERSUS * NO. 21-1091
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LOPINTO ET AL * SECTION: “L” (1)
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ORDER AND REASONS
Before the Court is a Motion in Limine to Exclude Plaintiff’s Expert by Defendants Cherie Beck,
Melissa Elliott, and Joseph P. Lopinto, III. R. Doc. 40. Plaintiff has filed a memorandum in
opposition. R. Doc. 44.
I. BACKGROUND
This case arises from Plaintiff Dr. Sojourner Gibbs’ arrest during an alleged diabetes
emergency on June 19, 2020 in a Sam’s Club parking lot in Jefferson Parish. R. Doc 1. Plaintiff
alleges that she was backing out of her parking spot when she began experiencing a hypoglycemic
episode. Id. at 5. Plaintiff then placed her car in park and was unable to move due to her medical
state. Id. After a concerned bystander called 911, Plaintiff alleges that sheriff’s deputies Melissa
Elliott and Cherie Beck arrived on scene and responded to Plaintiff’s medical emergency by
removing her from her vehicle and handcuffing her, causing her to “collapse face down into the
dirt.” Id. at 7.
As a result of this incident, Plaintiff brought suit against Sheriff Joseph Lopinto, III in his
official capacity under the Americans with Disabilities Act (“ADA”) and Section 504 of the
Rehabilitation Act of 1973 and deputies Melissa Elliot and Cherie Beck pursuant to 42 U.S.C. §
1983. Id. at 2. Specifically, Plaintiff alleges that the Jefferson Parish Sheriff’s office intentionally
discriminated against her based on her disability by failing to reasonable accommodate her needs.
Id. Plaintiff also maintains that the officers knew they were responding to a medical emergency
and arrested her without probable cause in violation of the Fourth Amendment. Id. at 3. Plaintiff
contends that the reasonable accommodation under the situation “would have been to wait for
EMS to arrive and handle what was an open and obvious medical emergency and/or disability
related occurrence.” Id. at 6. Plaintiff seeks to recover compensatory and nominal damages and
attorney’s fees and costs.
Defendants Sheriff Joseph Lopinto, III, Deputy Melissa Elliott and Deputy Cherie Beck
(hereinafter, “the JPSO defendants”) generally deny Plaintiff’s allegations and assert the following
affirmative defenses: (1) Plaintiff has failed to state a claim upon which relief can be granted; (2)
Defendant’s actions were reasonable and Plaintiff does “not support a claim under a theory of
vicarious liability or respondeat superior.” (3) Plaintiff’s assumption of risk and contributory
negligence to the incident; 4) lack of jurisdictional standing; and 5) qualified immunity under the
United States Constitution and La. R.S. 9:2798.1; (6) failure to state a “cause of action under the
Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.” R. Doc. 4.
II. PRESENT MOTIONS
Pending before the Court is a Daubert motion by the JPSO defendants to exclude Plaintiff’s
expert testimony from Kelly D. LeDuff, Plaintiff’s expert. See Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 589 (1993). Defendants make two arguments: First, they argue that Plaintiffs
have not followed the strictures of Rule 16 and 26 because Plaintiffs provided their expert
disclosures two days after the date listed on a scheduling order, and this disclosure lacked a list of
the witness’s qualifications, prior publications, and previous expert testimony. R. Doc. 20-1 at 4-
6. Defendants then argue that Mr. LeDuff’s opinion should be included under Fed. R. Evid. 702
because his opinion would constitute an impermissible “legal conclusion.” Id. at 7. Finally,
Defendants argues that Mr. LeDuff is unqualified to offer expert testimony in this matter.
Specifically, Defendants argue that LeDuff’s opinions are not sufficiently reliable or relevant to
be admissible under Daubert. Id. at 9-14.
III. APPLICABLE LAW
Federal Rules of Civil Procedure: Rule 16 and Rule 26
Under Federal Rule of Civil Procedure 26(a)(2)(B), if a witness is “retained or specially
employed to provide expert testimony,” then the party proffering the witness must provide a
written report with certain required information. Fed. R. Civ. P. 26(a)(2)(B). Where a party fails
to comply with Rule 26(a)(2)(B), “the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or harmless.” Fed. R. Civ. P. 37(c)(1).
Once the court has entered a scheduling order and the relevant deadline has passed,
Federal Rule of Civil Procedure 16(b) governs the court’s decision regarding whether to permit a
post-deadline amendment. See Fed. R. Civ. P. 16(b). Rule 16(b) provides: “A schedule may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). In
determining whether the movant has established “good cause” for extension of a deadline, the
Court considers four factors: (1) the party’s explanation for the requested extension; (2) the
importance of the requested extension; (3) the potential prejudice in granting the extension; and
(4) the availability of a continuance to cure such prejudice. Leza v. City of Laredo, 496 Fed.
App’x 375, 376 (5th Cir. 2012) (citing Reliance Ins. Co. v. La. Land & Expl. Co., 110 F.3d 253,
257 (5th Cir. 1997)).
Federal Rule of Evidence 704
Federal Rule of Evidence 704 provides that “testimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.” Fed. R. Evid. 704. But “this rule does not allow an expert to render
conclusions of law.” Snap-Drape, Inc. v. Comm’r, 98 F.3d 194, 198 (5th Cir. 1996).
Federal Rule of Evidence 702/Daubert Standard
Federal Rule of Evidence 702 provides that:
[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.
Under Daubert, “the trial judge must ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” 509 U.S.at 589. To be reliable, expert testimony must
be based on “scientific knowledge,” meaning it must be “ground[ed] in the methods and
procedures of science” and based on “more than subjective belief or unsupported speculation.”
Id. at 589-90. However, this rule does not require the testimony to be based on a scientific study,
but allows testimony based on “personal experience” if, in the trial court’s view, there is a
sufficient level of “intellectual rigor” underlying the testimony. Kumho Tire Co. v. Carmichael,
526 U.S. 137, 152 (1999). Indeed, “reliance upon extensive personal experience or specialized
knowledge is an acceptable ground for the admission of expert testimony.” Derouen v. Hercules
Liftboat Co., LLC, No. CV 13-4805, 2015 WL 13528499, at *3 (E.D. La. Sept. 4, 2015). When
expert testimony is challenged under Daubert, the burden of proof rests with the party seeking to
present the testimony. Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998).
In Daubert, the Supreme Court articulated a two-prong test for determining the
admissibility of expert testimony. Specifically, when faced with a proffer of expert testimony,
“the trial judge must determine at the outset, pursuant to Federal Rule of Evidence Rule 104(a),
whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier
of fact to understand or determine a fact in issue.” Daubert, 509 U.S. at 592. Both prongs of the
Daubert test must be satisfied before the proffered expert testimony may be admitted. Id. at 595.
The Supreme Court in Daubert also noted that this analysis “entails a preliminary assessment of
whether the reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in issue.” Id.
IV. DISCUSSION
As an initial matter, the Court finds Defendant’s argument under Rule 16 and Rule 26 to
be unavailing. The two-day delay in the submission of Plaintiff’s expert reports would not have
been sufficient to prejudice Defendants even in the case of the August 27, 2022 trial date, for
which the June 15, 2022 deadline for export reports had been issued. R. Doc. 21; R. Doc. 22. The
trial is now set to take place on May 30, 2023, at which point Defendants will have been in
possession of the expert report for nearly a year. As a result, this Court declines to exclude Mr.
LeDuff’s opinion under Rule 16 or Rule 26.
Nor does Federal Rule of Evidence 704 require the exclusion of the expert opinion
proffered by the Plaintiff. “A use of force expert may offer testimony regarding police policies
and procedures as well as whether or not specific acts by the defendant comport with those
policies or procedures.” United States v. Warren, No. 10-154, 2010 U.S. Dist. LEXIS 162289, at
*11 (E.D. La. Nov. 8, 2010) (citing Champion v. Outlook Nashville, Inc., 380 F.3d 893, 908 (6th
Cir. 2004)). However, “the testimony must not cross the borderline long recognized by this court
between a ‘mere explanation of the expert’s analysis of the facts’ and a ‘forbidden opinion on the
ultimate legal issue” in the case. Id. at *12 (citing United States v. Speer, 30 F.3d 605, 610 (5th
Cir. 1994)). In this instance, Plaintiffs have stipulated in their response that their expert will not
testify “to the legal conclusion that the force used was excessive for Fourth Amendment
purposes.” R. Doc. 44 at 4. But, as this Court held in Warren, expert testimony regarding policies
and procedures, and Defendants’ compliance with those policies and procedures, is admissible.
Plaintiff’s expert may offer such testimony.
The Court now turns to the Defendant’s arguments under Daubert. “To qualify as an
expert, ‘the witness must have such knowledge or experience in his field or calling as to make it
appear that his opinion or inference will probably aid the trier in his search for truth.’” United
States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004) (quoting United States v. Bourgeois, 950 F.2d
980, 987 (5th Cir. 1992). Defendants argues that Mr. LeDuff does not qualify as an expert with
sufficient scientific knowledge or experience in this case, pointing out that Mr. LeDuff does not
have law enforcement experience, and has produced no C/V and resume to show his
qualifications. R. Doc. 40-1 at 11. Plaintiff responds that Mr. LeDuff runs a consultancy, Open
Eyes LLC, with his father, who was a state and federal police officer for 30 years. R. Doc. 44 at
6.Further, Plaintiff argues that Defendant’s contention is “premature” because Defendants can
ask questions about Mr. LeDuff’s background and qualifications during his deposition. Id.
Furthermore, Defendants contend that Mr. LeDuff’s opinion is not relevant under the
second prong of Daubert because, again, he has “no experience in the field” and because his
opinions “constitute legal conclusions.” R. Doc. 50-1 at 12-13. Plaintiff responds that JPSO’s use
of force police is relevant to the reasonableness inquiry that ultimately will be undertaken by the
jury, and that “the policies and procedures which the deputies were charges with knowing and
were trained upon are relevant to gauging the reasonableness of the officers/action in the context
of the situation that led to Plaintiff's claim.” R. Doc. 44 at 5.
The Court finds that the expert opinion offered by Plaintiff's expert Mr. LeDuff is
sufficient to meet the Daubert standard. While an opinion on whether or not the actions taken by
the officers was unreasonable would indeed invade the province of the jury and therefore be
inadmissible, expert testimony on relevant policies and procedures under which the responding
officers acted is evidence that will “assist the trier of fact to understand or determine a fact in
issue.” Daubert, 509 U.S. at 592. Further, as to reliability, Plaintiff's expert owns and operates a
law enforcement consultancy, and Defendants will have the opportunity to probe his other
qualifications prior to trial via his deposition; further, they can pursue questions of his capacity to
opine on cross-examination. Ultimately, a jury may reject LeDuff’s conclusions, but weighing
expert opinions is the purview of the jury, not the Court. The Court will not exclude LeDuff’s
testimony under Daubert.
V. JUDGMENT
IT IS ORDERED that the Motion to Exclude Plaintiff's Expert Testimony by Joseph
P. Lopinto III, Melissa Elliot, and Cherie Beck be DENIED.
New Orleans, Louisiana, this 3rd day of May, 2023.
lg CMe
THE HONORABLE ELDON E. FALLON
UNITED STATES DISTRICT JUDGE