Van

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

TUYET N. VAN,

Plaintiff,

v. CIVIL ACTION NO. 3:25-0187

DESTINY NICOLE FERGUSON,

individually & in her official capacity as a

Deputy for the Cabell County Sheriff’s Office,

CHUCK ZERKLE,

individually and as the former Elected Sheriff of

Cabell County, West Virginia,

DOUG ADAMS,

individually and as the now Elected Sheriff of

Cabell County, West Virginia,

CABELL COUNTY COMMISSION,

a West Virginia political subdivision, and

JOHN DOE 1-10,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff Tuyet N. Van’s Motion to Exclude or Limit the Testimony of

Defendants’ Expert Matthew Greely (ECF No. 70). For the reasons stated below, the Court

GRANTS the Motion in part and DENIES the Motion in part.

BACKGROUND

Defendant Destiny Nicole Ferguson, a Deputy for the Cabell County Sheriff’s Office

(CCSO), tased Ms. Van twice after unsuccessfully trying to apprehend her. See ECF No. 64, Video

1, at 1:00–1:18, 2:48–3:02. As a result, Van fell and struck her head. See id. at 3:02–3:05. Van

sued, claiming Ferguson’s use of force violated federal and state law. See ECF No. 4 ¶ 13.

Defendants retained Matthew Greely as an expert witness and plan to call him to testify at

trial. See ECF No. 53, Ex. E 1.1 Mr. Greely is a police officer and Taser certification instructor.

See id. 5, 7. In his report, Greely opines that (1) Deputy Ferguson’s use of force was “objectively

reasonable,” id. at 19, (2) Van “intentionally fled,” engaged in “intentional deception,” and was

“willing to disregard lawful instructions,” id. at 20, (3) Van committed “aggressive acts”, id. at 18,

(4) Van “continued to physically resist” after Ferguson tried to handcuff her, id. at 23, and (5)

Van’s fall and injury were “known and foreseeable” effects of the “neuromuscular incapacitation”

occasioned by the Taser, id. at 25. Greely also plans to narrate videos of the incident while

providing commentary on “what factors an officer takes into consideration during a police

encounter, what factors are depicted in the videos, and how Deputy Ferguson’s actions comport

with those factors.” ECF No. 78, Defs.’ Resp. 14. Van’s Motion asks the Court to preclude Greely

from (1) offering these opinions, (2) narrating the videos, (3) “endors[ing] one version of the

disputed facts,” or (4) “premis[ing] any opinion of facts foreclosed by [Defendants’] Rule 36

admissions . . . .”2 ECF No. 71, Pl.’s Mem. 12; ECF No. 79, Pl.’s Reply 13.

LEGAL STANDARD

Federal Rule of Evidence 702 provides:

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 the proponent

demonstrates to the court that it is more likely than not that:

1 Defendants’ disclosure of Mr. Greely and Greely’s expert report have been filed as a single document. The disclosure

and report are separately paginated. When citing to a specific page in either, the Court will use the page number in the

CM-ECF heading at the top of the page.

2 Van also asks the Court to preclude Greely from offering any opinions that were not included in his Rule 26(a)(2)(B)

disclosure. See ECF No. 79, at 13. Such a request is premature. Under Federal Rule of Civil Procedure 37(c), “[i]f a

party fails to . . . identify a witness as required by Rule 26(a) . . ., the party is not allowed to use that . . . witness to

supply evidence . . . at a trial, unless the failure was substantially justified or is harmless.” Defendants have not

indicated Greely will offer an undisclosed opinion at trial, and the Court cannot determine whether a hypothetical

failure to disclose an opinion is substantially justified or harmless.

(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's opinion reflects a reliable application of the principles and methods

to the facts of the case.

“[H]elpfulness to the trier of fact is [the] ‘touchstone’” of the Rule 702 inquiry. Kopf v. Skyrm, 993

F.2d 374, 377 (4th Cir. 1993) (quoting Friendship Heights Assocs. v. Koubek, 785 F.2d 1154, 1159

(4th Cir. 1986)). “Expert testimony that merely states a legal conclusion is less likely to assist the

jury . . . .” United States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002).

ANALYSIS

Ms. Van’s Memorandum puts forward several arguments in favor of limiting Mr. Greely’s

testimony. The Court understands some of these arguments to apply to each of Greely’s challenged

opinions. Other arguments relate to only one or some of the opinions. The Court will address the

general objections first and then discuss the opinion-specific arguments.

A. General Objections

i. Credibility Determinations

Ms. Van claims Mr. Greely’s report “makes . . . credibility determinations” by “credit[ing]

the deputy’s account and discard[ing] Ms. Van’s . . . .” Pl.’s Mem. 8. But Van does not cite any

portion of the report in support of this argument, let alone explain how the report makes credibility

determinations. The Court will not limit Greely’s testimony on this basis.

ii. Reliable Methodology

Ms. Van also asserts Mr. Greely’s report “identifies no methodology beyond Mr. Greely’s

own experience and a . . . recitation of the ‘totality of the circumstances.” Id. at 10. She faults

Greely for failing to show “how [his] experience is reliably applied to the facts.” Id. (quoting Fed.

R. Evid. 702 advisory committee’s note to 2000 amendment).

The Court is unpersuaded. Mr. Greely’s report thoroughly describes his methodology:

This process begins with a comprehensive review of all materials provided to me.

. . . I evaluate the factual record in its entirety . . . After I establish a factual

foundation, I apply my nearly 20 years of law enforcement experience. This

includes my work as a patrol officer, investigative detective, swat team tactical

operator and trainer, police academy instructor, policy advisor, and use-of-force

consultant. . . . . My assessments are guided by nationally recognized standards,

departmental policies, legal precedents, and best practices in policing, including

use-of-force protocols, tactical decision-making, and officer conduct under the

totality of the circumstances. I also rely on nationally accepted and widely

recognized law enforcement organizations that establish best practices and model

policies for law enforcement agencies.

ECF No. 53, Ex. E 10–11; see also id. at 13–17 (describing how law-enforcement agencies

generally evaluate uses of force). Greely’s methodology relies on much more than mere

experience. The Court will not limit Greely’s testimony on this basis.

iii. Contradicting Record Evidence

Ms. Van claims Deputy Ferguson’s testimony and Rule 36 admissions contradict Mr.

Greely’s report. See Pl.’s Mem. 10–11. In the admissions, Ferguson confirmed Van “was not

armed with a firearm” and was not striking or attempting to strike anyone when Ferguson tased

her. ECF No. 53, Ex. A 32–33. Ferguson also testified Van was “not violent” when she deployed

the Taser the first time. ECF No. 60, Ex. 2, at 228–29.

Van argues this evidence contradicts two of Greely’s “assumptions”: (1) that Van was

“violent” and “threatening” and (2) that Ferguson’s Taser deployment was “measured” and

“compliance-directed.” Pl.’s Mem. 10–11. But Van does not cite any parts of the report to support

her characterization of its assumptions. Indeed, the report never describes Van as “violent.” While

it suggests she committed “aggressive acts,” this does not necessarily refer to violence. Perhaps

these “aggressive acts” refer to conduct that a video of the incident clearly shows: Van physically

resisting arrest. See Video 1, at 0:00–1:04, 1:13–1:18, 3:11–3:56. Meanwhile, Van has not pointed

to any evidence suggesting Ferguson’s Taser deployments were aimed at anything other than

securing Van’s compliance. Finally, whether Ferguson’s actions were “measured” is highly

subjective. The Court will not limit Greely’s testimony on this basis.

iv. Use of a Policy-Compliance Benchmark

Finally, Ms. Van argues the Court should limit Greely’s opinions because his report

assesses Ferguson’s actions based on their compliance with CCSO policy. See Pl.’s Mem. 11. This

policy, she claims, is itself unconstitutional. See id. The Court does not understand this argument.

If the CCSO’s policy is unconstitutional, an opinion that Ferguson complied with the policy would

be highly relevant to whether Ferguson herself violated the Constitution. The Court will not limit

Greely’s testimony on this basis.

B. Opinion-Specific Objections

i. Opining on Reasonableness

Mr. Greely’s report asserts that Deputy Ferguson’s actions were “objectively reasonable.”

As Ms. Van points out, the objective reasonableness of Ferguson’s actions is precisely what the

jury will be asked to determine in this case. See Pl.’s Mem. 4. “[O]pinion testimony that . . . draws

a legal conclusion by applying law to the facts is generally inadmissible.” United States v. McIver,

470 F.3d 550, 562 (4th Cir. 2006).

According to Defendants, Mr. Greely intends to “describe compliance with professional

standards taught to officers nationwide, not application of the Fourth Amendment analysis.” Def.’s

Resp. 6. They claim his “use of terms like ‘objectively reasonable’ . . . reflects terminology

routinely used among law enforcement.” Id. at 3. But Greely’s understanding of his own testimony

is irrelevant. What matters is how the jury will interpret it. If Greely described Deputy Ferguson’s

actions as “objectively reasonable,” a jury would likely understand him to be offering a legal

opinion. After all, objective reasonableness is the applicable legal standard for Ms. Van’s § 1983

claims. See ECF No. 81, at 4. Accordingly, the Court will preclude Greely from testifying that

Ferguson’s conduct was “reasonable.” See Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261

(4th Cir. 1999) (stating expert testimony “that has a greater potential to mislead than to enlighten

should be excluded”).

ii. Inadequate Qualifications

Ms. Van asserts Mr. Greely is unqualified to opine that (1) Van’s fall and injury were

“known and foreseeable” effects “associated with neuromuscular incapacitation” and (2) Van

“intentionally fled,” engaged in “intentional deception,” and was “willing to disregard lawful

instructions.” Pl.’s Mem. 6–7. She argues Greely has no medical background and has “no more

insight into” Van’s state of mind “than the jurors will.” Id.

The Court will allow Ms. Greely to testify that Ms. Van’s fall and injury were foreseeable.

Greely is not a medical professional, but as a Taser instructor, he is qualified to describe the

standard effects of a Taser deployment and opine whether Van’s fall and injury were consistent

with those effects.

However, the Court will exclude testimony about Ms. Van’s state of mind. Defendants

argue Mr. Greely’s “characterizations describe observable conduct[,] . . . not Plaintiff’s state of

mind.” Defs.’ Resp. 11–12. But intent and willingness are, of course, states of mind. Also, if

Greely’s testimony will merely “describe observable conduct,” his testimony will not help the jury.

Defendants say they “do not object to limiting [Greely’s] testimony to describe [Ms. Van’s]

conduct itself and how officers are trained to assess flight risk based on such conduct.” Defs.’

Resp. 12. Van confirms this limitation “is the relief Plaintiff’s motion requests.” The Court will

adopt Defendants’ proposal.

iii. Resolving Disputed Facts

Ms. Van argues a couple of Mr. Greely’s opinions—that Van committed “aggressive acts”

and “continued to physically resist” after Deputy Ferguson tried to handcuff her3—impermissibly

resolve disputed facts. See Pl.’s Mem. 7. She also argues Greely’s video commentary should be

excluded on this basis. See id. at 8.

The parties dispute whether expert opinions should be excluded when they resolve

contested facts. Compare Pl.’s Mem. 7 (“An expert may not offer ‘opinions, given his particular

interpretations of the contested facts.’” (quoting Clem v. Corbeau, 98 F. App’x 197, 200 (4th Cir.

2004))) with Defs.’ Resp. 12 (“[Q]uestions regarding the factual underpinnings of the expert

witness’ opinion affect the weight and credibility of the witness’ assessment, not its admissibility.”

(quoting Mountain Valley Pipeline, LLC v. 9.89 Acres of Land, 127 F.4th 437, 445 (4th Cir.

2025))). But even if Ms. Van is right, she fails to explain which “contested facts” Mr. Greely’s

opinions rely on. The Court will not exclude testimony simply because one party asserts, without

explanation or citations to the record, that the testimony resolves a factual dispute.

iv. Defendants’ Summary-Judgment Briefs Showing Unhelpfulness

Finally, Ms. Van argues Defendants’ summary-judgment briefs show Mr. Greely’s video

commentary and testimony about “[T]aser mechanics” would not help the jury. See Pl.’s Mem. 8–

9.

In their briefs, Defendants suggested it was undisputed Van resisted arrest and tried to flee

from Deputy Ferguson. See ECF No. 61, at 13; ECF No. 66, at 10. The Court agrees that, if this

3 Van also argues Greely’s opinion that Van “intentionally fled” impermissibly resolves disputed facts. See Pl.’s Mem.

7. But the Court has already concluded it will exclude this opinion.

were undisputed, expert testimony that Van resisted arrest and tried to flee would not help the jury.

But according to Defendants, Greely’s video commentary also “provides insight into what factors

an officer takes into consideration during a police encounter, what factors are depicted on the

videos, and how Deputy Ferguson’s actions comport with those factors.” Defs.’ 14. Such

commentary would help the jury even if it relates to undisputed facts.

Van also argues “expert testimony about [T]aser mechanics” would not help the jury

because Defendants’ briefs indicated such mechanics are undisputed. Pl.’s Mem. 9. But in her

Reply, Van asks the Court to expressly authorize Greely to “describe the general training officers

receive on [T]aser function and effects . . . .” Pl.’s Reply 13. To the extent there is a difference

between “Taser mechanics” and “Taser function and effects,” Van has not explained what it is.

Given Van’s apparent inconsistency, the Court will not exclude testimony about Taser mechanics.

CONCLUSION

The Court GRANTS in part and DENIES in part Plaintiff’s Motion to Exclude or Limit

the Testimony of Defendants’ Expert Matthew Greely (ECF No. 70). The Court ORDERS as

follows:

1. Mr. Greely may describe generally accepted law enforcement practices and training and

whether Deputy Ferguson’s conduct was consistent with or deviated from them but may

not testify that any conduct was “objectively reasonable,” “reasonable,” or

“unreasonable.”

2. Greely may describe the information available to Ferguson and how officers are trained

to assess flight risk but may not characterize Ms. Van’s intent, motives, or state of mind.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented parties.

ENTER: August 21, 2026

ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

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