Fetty v. City of Baton Rouge

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

NICHOLAS A. FETTY, ET UX. CIVIL ACTION NO.

VERSUS 18-945-SDD-RLB

THE CITY OF BATON ROUGE, CHIEF

MURPHY J. PAUL, JR., CHIEF OF POLICE,

BATON ROUGE CITY POLICE; SECRETARY

JAMES M. LEBLANC, LA DEPT. OF PUBLIC

SAFETY AND CORRECTIONS; COL. KEVIN W.

REEVES, SUPERINTENDENT, LA STATE POLICE;

OFFICER BRIAN STRONG, BRPD; SEVEN (7) YET

TO BE IDENTIFIED LA STATE TROOPERS

RULING

This matter is before the Court on the Motions in Limine to Exclude the Testimony

and Report of Lloyd Grafton1 by Defendants, Secretary James LeBlanc, Department of

Corrections, and Colonel Kevin Reeves, Superintendent of Louisiana State Police and by

the City of Baton Rouge/Parish of East Baton Rouge (“City/Parish”), Chief of Police,

Murphy J. Paul, Jr. (“Chief Paul”), Officer Brian Strong (“Strong”), Officer Joel Pattison

(“Pattison”), and Officer Brian Watson (“Watson”)(or collectively, “the City/Parish

Defendants”). Plaintiffs Nicholas A. Fetty (“Fetty” or “Plaintiff”) and Emily Fetty (“Emily”

or “Plaintiffs”) have filed an Opposition2 to these motions, to which Defendants filed a

Replies.3 For the following reasons, the Court finds that Defendants’ motions should be

1 Rec. Doc. Nos. 50 & 52, respectively.

2 Rec. Doc. No. 54.

3 Rec. Doc. Nos. 61 & 63.

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granted to the extent set forth below.

I. FACTUAL BACKGROUND

On November 1, 2017, Plaintiffs attended a concert at the Texas Club in Baton

Rouge, Louisiana.4 That night, Fetty was arrested in the parking lot of the club by several

officers with the Louisiana State Police Fugitive Task Force.5 Fetty acknowledges that

the arrest was made pursuant to an arrest warrant for his alleged conduct that occurred

about two weeks prior to his arrest, on or about October 13, 2017, in a subdivision south

of the campus of Louisiana State University.6 The arrest warrant was for the alleged false

imprisonment while armed with a dangerous weapon and simple assault committed by

Fetty.7 Fetty claims that the officers used unreasonable and excessive force in making

this arrest, and as result, he suffered significant injuries.8 Fetty filed this lawsuit asserting

that Defendants violated his federal constitutional rights pursuant to 42 U.S.C. § 1983

and violated his rights under the Louisiana Constitution and tort law.

II. ARGUMENTS

The above-named Defendants have moved9 to exclude certain testimony and

conclusions in the purported expert report of Plaintiffs’ “police policy and procedure”

expert, W. Lloyd Grafton (“Grafton”).10 Grafton reaches four primary conclusions as

expressed in his report:

Opinion #1: It is my opinion to a reasonable degree of professional certainty

that the use of force by the arresting officers (Baton Rouge City Police

4 Rec. Doc. No. 1, ¶ 6.

5 Id. at ¶¶ 11-12.

6 Rec. Doc. No. 16 at 2.

7 Id. at 5.

8 Rec. Doc. No. 1, ¶¶ 13-16.

9 Because the moving Defendants make essentially the same arguments and request the same relief in

their respective motions, the Court will consider them jointly made for purposes of this ruling.

10 See Rec. Doc. No. 50-3.

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Officers and Louisiana State Police) was clearly not necessary and

objectively unreasonable, resulting in harm and injury to Nicholas Fetty.

Opinion #2: It is my opinion to a reasonable degree of professional certainty

that the three arresting officers failed to follow their PPCT Training when

taking Mr. Fetty into custody.

Opinion #3: It is my opinion to a reasonable degree of professional certainty

that the arresting officers were unprofessional in their handling of the

incident involving Mr. Fetty on November 2, 2017.

Opinion #4: It is my opinion to a reasonable degree of professional certainty

that the ‘choke hold’ on Mr. Nicholas Fetty was force that was unnecessary

and unreasonable resulting in harm to Mr. Fetty.11

Defendants argue these opinions/conclusions should be excluded in their entirety

or limited in scope because they: “(1) will not assist the trier of fact in understanding the

evidence or determining a fact at issue[]; (2) offer legal conclusions; and (3) reference

evidence upon which experts in the field of police policies and procedures would not rely

to formulate their opinions and instead use that evidence to make credibility

determinations about witnesses and parties in this case.”12

Defendants also move to exclude other statements in Grafton’s report which are

based on Grafton’s credibility determinations and assumptions that rely entire on

Plaintiffs’ version of events. Defendants point to Grafton’s question, when “was Trooper

Huval telling the truth and when was he lying?”13 Then, according to Defendants, Grafton

improperly concludes that the troopers lack credibility and cannot be trusted.14

Defendants argue this demonstrates that Grafton improperly assumes Plaintiffs’ version

11 Id. at pp. 2-3.

12 Rec. Doc. No. 50-1, pp. 2-3. The City/Parish makes essentially the same arguments regarding Grafton’s

conclusions, arguing they “(1) rely on inaccurate and incomplete facts, (2) exceed the scope of permissible

opinions regarding issues for the trier of fact and credibility determinations; (3) draw legal conclusions in

violation of FRE 704; and (4) are unhelpful and prejudicial.” Rec. Doc. No. 52-1, p. 2.

13 Rec. Doc. No. 50-3, p. 9.

14 Id. at p. 9.

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of events are true and discounts the troopers’ description of the arrest. This subjective

review of the materials in this matter will not aid the trier of fact in understanding the trial

evidence.

Further, Grafton admits he was not given any information to suggest Fetty had

been drinking on the night of the arrest;15 yet, Fetty testified that he split a bottle of

champagne with his wife and consumed two to three beers before the arrest.16 Thus,

Defendants contend Grafton’s opinions are based upon incomplete or erroneous data.

Grafton also admits that his opinions are based on the assumption that Fetty did

not resist arrest during the incident; thus, he concludes the alleged striking of Fetty’s nose

was excessive force.17 However, the officers who arrested Fetty dispute that he was

struck in the face and will testify that Fetty did resist arrest. Thus, Defendants argue that,

rather than assist the jury, Grafton’s conclusions and statements improperly weigh

credibility and essentially instruct to the jury how to find as to these disputed issues of

fact.

Defendants also challenge Grafton’s conclusion that, based on a letter of

reprimand issued to Trooper Huval back in 2014, it is “an accepted rule … that a person’s

past behavior will give you a good idea how they will act or perform in the future.”18

Considering this letter of reprimand is for a single event that occurred more than three

years prior to the incident at issue, drawing conclusions in this matter based on this piece

of likely inadmissible evidence flies in the face of Fed. R. Evid. 703 and 704. Grafton then

15 See Rec. Doc. No. 50-2, Excerpts from Deposition of Lloyd Grafton, p. 27, ln. 22-24.

16 Id. at pp. 27, ln. 25 through 28, ln. 9.

17 Id. at p. 24, ln. 24 through p. 25, ln. 8.

18 Rec. Doc. No. 50-3, p. 8.

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uses this basis to provide conclusions based on his credibility determinations from the

reliance on this type of evidence:

Grafton then claims that the acts described in the letter offer a “glimpse” into

Trooper Huval’s character such that the trier of fact should ask, “At what

point and at what time was Trooper Huval telling the truth and when was he

lying?”19 Again, Grafton’s testimony about the witness’s credibility is

improper. Further, Grafton references a prior, alleged act from 2014 to

attack Trooper Huval’s character and argue that Trooper Huval acted in

accordance with a description of the trooper’s character that Grafton

creates. This testimony must be excluded.20

Further, Grafton relies on a video interview of Max Fetty, Fetty’s father, wherein

Max Fetty discusses events that happened prior to Fetty’s arrest and attacks the

character of the troopers involved. From this, Grafton draws broad, general conclusions,

stating that Max Fetty’s description of the officers’ conduct “is a perfect example of why

many citizens lose respect for law enforcement.”21 This, too, is an inappropriate basis for

the conclusions reached in this case and provides a biased view that will not assist the

jurors at trial and causes undue prejudice.

Plaintiffs respond only generally to Defendants’ motions. Plaintiffs fail to directly

and specifically address the items complained of; rather, they focus on Grafton’s

experience as their sole defense to Defendants’ challenge. Plaintiffs likewise offer

general jurisprudence on expert testimony but fail to offer countervailing law or

jurisprudence for that offered by Defendants for each issue challenged.

Plaintiffs recount their version of the events, without citation to record evidence,

and provide the Court with Grafton’s professional credentials and experience in the area

of police policy and procedures. Plaintiffs acknowledge that it is for the jury to determine

19 Rec. Doc. No. 50-1, p. 15 (quoting Rec. Doc. No. 50-3, p. 9).

20 Id.

21 Rec. Doc. No. 50-3, p. 10.

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fact issues in this matter but contend that “Grafton’s report/testimony sheds much needed

expertise and enlightenment” on the resolution of these disputed facts.22 Plaintiffs

maintain that Grafton’s expertise, which is unchallenged by the Defendants, is necessary

to aid the jury in understanding the evidence and determining the facts: “not only will

Grafton’s testimony help the trier of fact to understand the evidence and to determine the

facts, contrary to the Defendants’ argument, but his testimony is also crucial in providing

the trier of fact with objective observations, opinions and a necessary counter-point from

someone other than one of the Defendants.”23

For the reasons set forth below, the Court agrees with Defendants’ arguments and

will exclude the aforementioned statements and opinions.

III. LAW & ANALYSIS

A. Daubert/Kumho24 Evaluation of Admissibility of Expert Witnesses

Pursuant to Fed. R. Evid. 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.

Under its express terms, Rule 702 does not render all expert testimony

admissible.25 Further, even if the proposed expert testimony satisfies each of the

elements set forth in the Rule, the testimony may still be excluded pursuant to the

22 Rec. Doc. No. 54-1, p. 7.

23 Id.

24 Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526

U.S. 137 (1999),

25 United States v. Scavo, 593 F.2d 837, 844 (8th Cir. 1979).

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discretionary provisions of Fed. R. Evid. 403, which allow the Court to “exclude relevant

evidence if its probative value is substantially outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.”

When a Daubert challenge is made to the testimony of a proposed expert, a district

court may, but is not required, to hold a hearing at which the proffered opinion may be

challenged.26 When a hearing is not held, “a district court must still perform its

gatekeeping function by performing some type of Daubert inquiry.”27 “At a minimum, a

district court must create a record of its Daubert inquiry and ‘articulate its basis for

admitting [or denying] expert testimony.’”28

The trial court is to serve as the gatekeeper for expert testimony by making a

determination whether the expert opinion is reliable. As the Fifth Circuit has explained:

[W]hen expert testimony is offered, the trial judge must perform a screening

function to ensure that the expert's opinion is reliable and relevant to the

facts at issue in the case. Daubert went on to make “general observations”

intended to guide a district court's evaluation of scientific evidence. The

nonexclusive list includes “whether [a theory or technique] can be (and has

been) tested,” whether it “has been subjected to peer review and

publication,” the “known or potential rate of error,” and the “existence and

maintenance of standards controlling the technique's operation,” as well as

“general acceptance.” The Court summarized:

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.

Its overarching subject is the scientific validity and thus the

evidentiary relevance and reliability—of the principles that underlie a

proposed submission. The focus, of course, must be solely on

principles and methodology, not on the conclusions that they

generate.29

26 Carlson v. Bioremedi Therapeutic Systems, Inc., 822 F.3d 194, 201 (5th Cir. 2016).

27 Id.

28 Id.

29 Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) (internal citations omitted).

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Courts following Daubert have expanded upon the listed factors and explained that

the list is not all-encompassing, and not every factor is required in every case.30 Thus,

courts may look to other factors, as well.31 In Fayard v. Tire Kingdom, Inc., this Court

explained:

The admissibility of expert testimony is governed by Federal Rule of

Evidence 702 and Daubert, which provide that the court serves as a

gatekeeper, ensuring all scientific testimony is relevant and reliable. This

gatekeeping role extends to all expert testimony, whether scientific or not.

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Under Rule

702, the court must consider three primary requirements in determining the

admissibility of expert testimony: 1) qualifications of the expert witness; 2)

relevance of the testimony; and 3) reliability of the principles and

methodology upon which the testimony is based.32

The Supreme Court also recognized that not all expert opinion testimony is subject

to examination by the same exact standard. Rather, the Court described the Daubert

analysis as a “flexible” one, and “the factors identified in Daubert may or may not be

pertinent in assessing reliability, depending on the nature of the issue, the expert's

particular expertise and the subject of his testimony.”33 Expanding on this, the Fifth Circuit

has concluded that certain “soft sciences” involve “necessarily diminished methodological

precision” when compared to other scientific disciplines like mathematics and

engineering34 and explained:

In such instances, other indicia of reliability are considered under Daubert,

including professional experience, education, training, and observations.

Because there are areas of expertise, such as the “social sciences in which

the research, theories and opinions cannot have the exactness of hard

science methodologies”, trial judges are given broad discretion to determine

30 See, e.g., General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997); Guy v. Crown Equipment Corp., 394

F.3d 320, 325 (5th Cir. 2004).

31 See General Electric Co., 522 U.S. at 146.

32 No. 09-171, 2010 WL 3999011, *1 (M.D. La. Oct. 12, 2010).

33 Kumho, 526 U.S. at 150.

34 United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006) (quoting Jenson v. Eveleth Taconite Co.,

130 F.3d 1287, 1297 (8th Cir. 1997)).

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“whether Daubert's specific factors are, or are not, reasonable measures of

reliability in a particular case.”35

The Court now turns to the challenged testimony and expert report conclusions

and will consider them under the standards set forth above.

B. Application

The Court has broad discretion in deciding whether to admit expert opinion

testimony.36 Applying the foregoing law and jurisprudence to the expert testimony

challenged here, the Court finds that all four opinions expressed by Grafton must be

excluded. First, the Court notes that no challenge has been made to Grafton’s

qualifications or expertise in the area proffered. Indeed, just recently, in Jones v. Lollis,

this Court found that Grafton had the experience and education to opine on similar

topics.37 However, in Jones, this Court also excluded several conclusions/opinions

offered by Grafton because:

[S]ome of his conclusions and opinions go to the ultimate question to be

determined by the jury or are stated as legal conclusions. Those specific

portions of his proposed testimony will be limited. Grafton will not be

permitted to give opinion testimony that certain acts or omissions violate the

law or the Constitution. Grafton will not be permitted to opine as to the

ultimate conclusions of fact.38

The same result is warranted as to the four opinions challenged herein. In each

opinion, Grafton finds facts and/or draws legal conclusions regarding the reasonableness

and necessity of Defendants’ purported conduct.

35 Id. at 1123 (citing Kumho, 526 U.S. at 153).

36 See, e.g., General Electric Co., 522 U.S. at 138-39 (holding that an appellate court's review of a trial

court's decision to admit or exclude expert testimony under Daubert is made under the abuse of discretion

standard); Watkins, 121 F.3d at 988 (holding that “[d]istrict courts enjoy wide latitude in determining the

admissibility of expert testimony”); Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998)

(“Trial courts have ‘wide discretion’ in deciding whether or not a particular witness qualifies as an expert

under the Federal Rules of Evidence”).

37 No. 18-885-SDD-SDJ, 2020 WL 3469105 (M.D. La. June 25, 2020).

38 Id. at *2.

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Grafton’s expert testimony and report were likewise challenged on similar grounds

in Brown v. Swain.39 There, the Eastern District of Louisiana court accepted certain

opinions offered by Grafton as an expert in police policy and procedure; however, it

excluded several opinions, finding that they were speculative, consisted of factual

conclusions within the province of the jury, and consisted of improper legal conclusions.40

The court likewise noted that, under the issues presented in that case, all references by

Grafton to “deliberate” and “reasonable” conduct were inappropriate legal conclusions.41

The Fifth Circuit has also spoken on this issue and affirmed district courts that have

excluded such expert testimony. The Fifth Circuit has specifically held that the

reasonableness of an officer's use of deadly force is a legal conclusion.42 In Estate of

Sowell v. United States, the Fifth Circuit upheld the exclusion of expert testimony from a

law professor on the question of whether an estate executor had acted reasonably;

“[w]hether the Estate was ‘acting reasonably’ was, for all practical purposes, the only

issue for the jury in this case to decide.”43

Defendants also contend many of Grafton’s report findings upon which his opinions

are based are reached by improper credibility determinations and only Plaintiffs’ view of

the case; also, many statements found in Grafton’s report are based on improper

credibility determinations “supported” by improper/likely inadmissible/irrelevant evidence.

Similar challenges to expert testimony were raised before this Court in Day v.

Baton Rouge City Police, wherein Magistrate Judge Wilder-Doomes excluded expert

39 No. 09-2813, 2010 WL 3523026 (E.D. La. Aug. 31, 2020).

40 Id. at *1-*2.

41 Id. at *2.

42 Pratt v. Harris County, Tex., 822 F.3d 174, 181 (5th Cir. 2016); U.S. v. Williams, 343 F.3d 423, 435 (5th

Cir. 2003); McBroom v. Payne, 478 F. App'x 196, 200 (5th Cir. 2012).

43 198 F.3d 169, 171-172 (5th Cir. 1999).

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testimony rendering conclusions regarding whether probable cause existed to arrest the

plaintiff and any conclusions of “reasonableness” of the police officers’ actions in arresting

the plaintiff.44 The Court also addressed improper credibility determinations offered by

the expert (Najolia). The Court explained:

Notwithstanding his qualifications in the area of law enforcement, training,

and use-of-force, his opinions as to the existence of probable cause and the

reasonableness of the BRPD's use of force on Plaintiff are nonetheless

unreliable because they do not apply any particular analysis or methodology

to the July 9 incident but merely accept one of two contested factual

versions in this case. The Court fails to see how this will assist the jury in

understanding the evidence or in reaching its own resolution of the factual

questions, especially in a case, like this one, where multiple videos and

photographs depict some of the events of July 9, and each side believes

the evidence supports its version of those events. Najolia is not in a better

position, despite his law enforcement expertise, to opine as to whether the

evidence establishes probable cause and/or excessive force. In simply

accepting Defendants’ version of the facts, Najolia's report artificially

bolsters and potentially elevates Defendants’ version without any

apparent basis for such enhanced credibility. This presents the type

of danger that the gatekeeping function of Daubert is intended to

alleviate, i.e., the danger that the purported expert testimony will

receive unwarranted weight and will encourage the factfinder to give

more weight to one side's contention than is warranted.45

While the issues with the facts upon which Najolia relies to reach his

conclusions might be properly addressed through cross-examination,

Najolia's opinions regarding probable cause and excessive force also go

beyond “embracing” ultimate issues of law and fact46 and instead offer

“ultimate legal conclusions,” for which “[t]he judge is the source of law and

the only expert needed by a jury.”47 Although the Fifth Circuit has explained

44 No. 17-328-EWD, 2020 WL 7024478, *5 (M.D. La. Nov. 30, 2020).

45 Id. at *5 (emphasis added).

46 Id. (quoting Fed. R. Evid. 704 (“An opinion is not objectionable just because it embraces an ultimate

issue.”). See also Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009)).

47 Id. (quoting Manton v. Strain, No. 09-339, 2010 WL 4364480, at *2 (E.D. La. Oct. 21, 2010) (quoting

Bodzin v. City of Dallas, 768 F.2d 722, 725 (5th Cir. 1985)). See also Hayward v. Landry, No. 02-927, 2006

WL 8432349, at *1 (M.D. La. Aug. 3, 2006) (explaining that expert testimony on “ultimate questions of law

is not favored” and that “[t]he distinction between ultimate facts and ultimate questions of law is important

because testimony on ultimate factual questions aids the jury in reaching a verdict while testimony which

articulates and applies the relevant law ... circumvents the jury's decision-making function by telling them

how to decide the case,” and referencing numerous cases where “federal circuits have held that an expert

witness may not give an opinion on ultimate issues of law.” (internal quotations and citations omitted));

Tolan v. City of Bellaire, No. 09-1324, 2015 WL 12765413, at (S.D. Tex. Aug. 27, 2015) (noting that both

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that Rule 704 “abolished the per se rule against testimony regarding

ultimate issues of fact, ‘courts must remain vigilant against the admission of

legal conclusions, and an expert witness may not substitute for the court in

charging the jury regarding the applicable law.’”48 Whether probable cause

existed at the time of Plaintiff's arrest is an ultimate question for the jury to

decide.49 So too is the reasonableness of the officers’ actions in arresting

and using force on Plaintiff.50

sides are “correct” in arguing that “the other's expert cannot provide opinions on purely legal issues, and

precluding both experts from offering legal conclusion opinions” at trial)).

48 Id. (quoting Manton, 2010 WL 4364480, at *2 (quoting United States v. Milton, 555 F.2d 1198, 1203 (5th

Cir. 1977))).

49 Id. (citing Graham v. Dallas Area Rapid Transit, 288 F.Supp.3d 711, 730-32 (N.D. Tex. Dec. 28, 2017)

(excluding defendants’ law enforcement experts’ opinions (a) that “any officer in the same or similar

circumstances as Defendant Officers could reasonably believe probable cause existed” and (b) that “the

totality of the circumstances, including the video of the incident and conduct of [plaintiff], could lead any

officer in the same or similar circumstances to believe probable cause existed to arrest [plaintiff]” under

Fed. R. Evid. 702, Daubert, and Kuhmo, because the experts’ reports were “ridded with legal conclusions

concerning probable cause,” did not “preface [their] conclusions with the legal standards for probable

cause,” did not “address whether [they] had sufficient facts to reach [their] conclusions or discuss

procedures or methodologies in the area of policing including those employed in the course of making a

lawful arrest,” and accepted “carte blanche, the Officers’ version of the facts while labeling [plaintiff's]

version of the events as merely ‘allegations’ or ‘claims,’ which implies his version is open to challenge,

debate, or doubt,” among other reasons.). See also Hayward, 2006 WL 8432349, at *3 (precluding plaintiff's

expert from “giving any testimony on the issue of probable cause,” which is a statement of a legal

conclusion); Manton, 2010 WL 4364480 (excluding plaintiff's law enforcement expert from testifying at trial

about probable cause and other issues)).

50 Id. (citing Graham, 288 F.Supp.3d at 730-32 (excluding defendants’ law enforcement experts’ opinions

(a) that “the Defendant Officers’ use of force was reasonable, necessary, and only to the level of force

necessary to accomplish a legitimate police objective and overcome [plaintiff's] violent resistance” and (b)

that “any officer in the same or similar circumstances as [Defendant Officers] could reasonably believe that

[his or her] use of force was reasonable, necessary, and only the level needed and could have acted in the

same or similar manner as [Defendant Officers]” under Fed. R. Evid. 702, Daubert, and Kuhmo, because

the experts’ reports were “ridded with legal conclusions concerning ... use of force,” did not “preface [their]

conclusions with the legal standards for ... use of force,” did not “address whether [they] had sufficient facts

to reach [their] conclusions or discuss procedures or methodologies in the area of policing including those

employed ... in determining whether the use of force was excessive on a continuum of force,” and accepted

“carte blanche, the Officers’ version of the facts while labeling [plaintiff's] version of the vents as merely

‘allegations’ or ‘claims,’ which implies his version is open to challenge, debate, or doubt,” among other

reasons.). See also Renfroe v. Parker, 974 F.3d 594, 598 (5th Cir. 2020) (holding that it is “error to allow

expert testimony on whether an officer used unreasonable force,” and affirming district court's exclusion on

summary judgment of plaintiff's expert's report opining that the officer's “use of deadly force ... was

unnecessary and objectively unreasonable and ... violated well-established law enforcement use of force

training and standards and was a greater level of force than any other reasonable officer would have used

under the same or similar circumstances ...”); U.S. v. Williams, 343 F.3d 423, 435 (5th Cir. 2003) (finding

that district court erred by admitting an officer's testimony about the reasonableness of another officer's use

of force [i.e., shooting] because “Rule 704(a) does not allow a witness to give legal conclusions” and

“[r]easonableness [of an officer's use of force] under the Fourth Amendment or Due Process Clause is a

legal conclusion.” (internal citations omitted)); Lehman v. Leichliter, No. 03-1432, 2004 WL 5482307, at *2-

4 (W.D. La. Nov. 30, 2004) (restricting experts’ testimony to be offered at trial after finding that expert

testimony on whether an officer's use of force was “objectively reasonable under the totality of the

circumstances will not provide meaningful assistance to the jury” because (1) “[a] jury is fully capable of

considering the circumstances and making a determination as to whether the use of force was reasonable

under the circumstances” and (2) “[t]here is a real danger that the jury could end up believing that the

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In Westcott v. Crinklaw, the Eighth Circuit held that an expert may not usurp the

exclusive function of the jury in weighing evidence and determining credibility, or pass

judgment on a witness' truthfulness, under the guise of a professional opinion.51 Indeed,

“[e]xpert testimony requires more than ‘subjective belief or unsupported speculation.’”52

Further, “expert testimony may not usurp the jury's authority to make credibility

determinations.”53

In Amin-Akbari v. City of Austin, Tex., the Western District of Texas found that an

expert's opinion as to which witnesses should be believed was not helpful to the trier of

fact as “it is the province of the jury to evaluate the credibility and weigh the (occasionally

conflicting) evidence.”54 In McBroom v. Payne, the Southern District of Mississippi held

that, “[w]hether a witness is to be believed by the jury or not is beyond the competency of

any witness. It does not take an expert to determine motivations in telling or not telling the

truth....”55

ultimate issues before it are what the expert says they are.”); Tolan v. City of Bellaire, No. 09-1324, 2015

WL 12765413, at *3 (S.D. Tex. Aug. 28, 2015) (“Clearly, expert opinions as to the reasonableness of a

police officer's use of force are objectionable and inadmissible legal conclusions.” (citations omitted)). But

cf. Hayward, 2006 WL 8432349, at *2 (explaining (1) that “[u]nlike the issue of probable cause, expert

witnesses may be used in excessive force cases” if such testimony “would assist the lay juror” and (2) that

expert testimony in “bare hands” cases—as opposed to those involving “handcuffs, a gun, a slapjack, mace,

or some other tool”—“might not be helpful” to a lay juror because “[m]ost individuals have been in a physical

altercation at one point in their lives, be it through horseplay or something more serious,” and permitting

plaintiffs’ expert to testify about whether excessive force was used against plaintiff, given that the “alleged

excessive force in the case at bar [i.e., the negligent use of handcuffs] involves more than the use of ‘bare

hands.’”).

51 68 F.3d 1073, 1076 (8th Cir. 1995).

52 Prejean v. Satelite Country, Inc., 474 S.Supp.3d 829, 834 (W.D. La. 2020)(quoting Daubert, 509 U.S. at

590, 113 S.Ct. 2786).

53 Charalambopoulos v. Grammer, No. 3:14-CV-2424-D, 2017 WL 930819, at *17 (N.D. Tex. Mar. 8, 2017)

(citations omitted). See also Skidmore v. Precision Printing & Pkg., Inc., 188 F.3d 606, 618 (5th Cir. 1999)

(stating that “[c]redibility determinations, of course, fall within the jury's province” in relation to a challenge

to expert testimony).

54 52 F. Supp. 3d 830, 848 (W.D. Tex. 2014).

55 No. 1:06CV1222-LG-JMR, 2011 WL 1356925, at *3 (S.D. Miss. Apr. 11, 2011), aff'd, 478 F. App'x 196

(5th Cir. 2012)(internal quotation marks and citation omitted).

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In Chipley v. Brownlow, the Southern District of Mississippi relied on persuasive -

but not binding - authority on this issue, stating:

“There is a critical distinction between an expert testifying that a

disputed fact actually occurred or that one witness is more credible

than another and an expert giving an opinion based upon factual

assumptions, the validity of which are for the jury to determine. The

former is manifestly improper, the latter is not.” Richman v. Sheahan,

415 F. Supp. 2d 929, 942 (N.D. Ill. 2006). Thus, an expert may testify

to opinions where her opinion is based on facts, the truth of which

she would or could not testify to.56

This means, for example, that an expert could properly testify to his opinion

about whether a certain action by the defendant in a certain circumstance,

assuming that those are the facts, would be inconsistent with applicable

policies or standards. See id. However, for the expert to not only base

his opinion on an assumption that his client's version of the events is

true, but to actually adopt and endorse that version of the events

“would be improper usurpation of the jury's role.” Id. (citing United

States v. Whitted, 11 F.3d 782, 785–86 (8th Cir. 1993) (expert's “opinion

that sexual abuse has in fact occurred” is not ordinarily admissible, nor can

an expert “pass judgment on the alleged victim's truthfulness in the guise of

a medical opinion, because it is the jury's function to decide credibility”)).

See also United Healthcare Of Wisconsin Inc. v. See, No. 09-C-0094, 2012

WL 4516704, at *2 (E.D. Wis. Sept. 30, 2012) (distinguishing between

expert who assumes one party's version of the facts is true and gives

opinion on that version of the facts and one who “has analyzed all of the

witness statements and would present an understanding of all of the

underlying facts” and “[tells] the jury which facts to believe or [testifies] as

to [a witness's] credibility”).57

In Albert v. City of Petal, the Southern District of Mississippi explained that,

pursuant to Fifth Circuit jurisprudence, “expert witnesses are not permitted to provide

commentary on the credibility of fact witnesses.”58 The Albert court, therefore, excluded

56 Id. at *4 (quoting Thomas v. Barze, 57 F. Supp. 3d 1040, 1059 (D. Minn. 2014)).

57 Id.

58 No. 2:18-CV-96-KS-MTP, 2019 WL 10736149 at *9 (S.D. Miss., Sep. 30, 2019)(quoting McBroom, 2011

WL 1356925 at *3); United States v. Beasley, 72 F.3d 1518, 1528 (5th Cir. 1996)(“Absent unusual

circumstances, expert medical testimony concerning the truthfulness or credibility of a witness is

inadmissible.”)).

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expert testimony that constituted “improper expert commentary on the credibility of a fact

witness.”59

Considering the challenged conclusions and statements of Grafton’s report, the

Court finds, based on the foregoing jurisprudence and lack of Plaintiffs’ efforts to

specifically address Defendants’ challenges, Grafton’s expert testimony and the portions

of these statements in the report shall be excluded. The Court recognizes that “the

rejection of expert testimony is the exception rather than the rule.”60 However, as

gatekeeper, this Court must only allow the admission of expert testimony that is reliable

and relevant. For the reasons set forth above, the Court concludes that the majority of

Grafton’s proposed testimony should be excluded. Based on his education, training and

experience, Grafton is certainly qualified and may testify as to applicable standards and

well-established police policy and procedure. However, he will not be permitted to offer

opinions that draw legal conclusions, make findings of fact, or address the credibility of

any witness, including his analysis/evaluation and/or interpretation of evidence as

supporting his conclusions as to the credibility of any witness or a particular version of the

facts. Accordingly, Defendants’ Motions in Limine61 are GRANTED to the extent set forth

herein.

Baton Rouge, Louisiana, this 11th day of February, 2020.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

59 Id.

60 Fed. R. Evid. 702, Adv. Comm. Notes (2000).

61 Rec. Doc. Nos. 50 & 52.

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