OPINION AND ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE EVIDENCE AT TRIAL (DKT. NO. 39); (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO PRECLUDE PLAINTIFF FROM OFFERING THE EXPERT OPINIONS OF MICHAEL D. LYMAN AT TRIAL (DKT. NO. 57); AND (3) DEFERRING, UNTIL THE CONCLUSION OF THE LIABILITY PHASE OF TRIAL, RULING ON DEFENDANTS’ MOTION TO PRECLUDE PLAINTIFF FROM OFFERING THE EXPERT OPINIONS OF JOHN SASE AT TRIAL (DKT. NO. 16)
This matter comes before the Court on Plaintiffs Motion In Limine to Exclude Evidence at Trial (Dkt. No. 39), Defendants’ Motion to Preclude Plaintiff from Offering the Expert Opinions of Michael D. Lyman, Ph.D at Trial (Dkt. No. 57) and Defendants’ Motion to Preclude Plaintiff from Offering the Expert Opinions of John Sase, Ph.D at Trial (Dkt. No. 46). A hearing was held on August 1, 2011.
For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs motion in limine, GRANTS IN PART AND DENIES IN PART Defendants’ motion to preclude Plaintiff from offering the expert opinions of Dr. Lyman at trial, and DEFERS RULING, until the conclusion of the liability phase of trial, on Defendants’ motion to
I.INTRODUCTION
Plaintiff in this action claims that Defendant Oakland County Deputy Micky Simpkinson used excessive force when he pulled Plaintiff from his vehicle and took him to the ground during a traffic stop on July 28, 2007. The facts in this matter are set forth in detail in this Court’s April 14, 2011 Opinion and Order,
II. LEGAL STANDARD
“The Federal Rules of Evidence, the Federal Rules of Criminal and Civil Procedure and interpretive rulings of the Supreme Court and this court all encourage, and in some cases require, parties and the court to utilize extensive pretrial procedures — including motions in limine — in order to narrow the issues remaining for trial and to minimize disruptions at trial.” United States v. Brawner,
III. ANALYSIS
A. Plaintiffs Motion In Limine
Plaintiff moves in limine to exclude several different categories of evidence. In his motion, Plaintiff refers the Court to the standard for determining excessive force as the appropriate context in which ■ to assess the admissibility of the challenged evidence. “Claims of excessive force are analyzed under an objective-reasonableness standard, which depends on the facts and circumstances of each case viewed from the perspective of a reasonable officer on the scene.” Miller v. Sanilac County,
1. Deputy Simpkinson will be permitted to introduce evidence at trial relating to Plaintiffs arrest and conviction for OUIL Third on the evening of July 23, 2007, including evidence of his blood alcohol level that evening.
Plaintiff seeks to exclude at trial evidence that Plaintiff was operating his vehicle while intoxicated on the night of his arrest by Deputy Simpkinson, that Plaintiff registered a blood alcohol level of .28 immediately following his arrest and was subsequently convicted of Operating Under the Influence of Intoxicating Liquors, Third Offense (“OUIL Third”) and sentenced to 300 days in jail for that crime. (Dkt. No. 42, Def.’s Resp. to Pl.’s Motion In Limine, Ex. E, Plea Agreement, Ex. F, Judgment and Sentence). Plaintiff argues that allowing evidence of Plaintiffs conviction for driving while intoxicated that night will have no tendency to establish or disprove any fact of consequence in this case. Plaintiff claims that “without provocation or other justification, [Deputy Simpkinson] manhandled [Plaintiff] and threw him to the ground during a routine traffic stop.” (Pl.’s Mot. 8.) Plaintiff claims that the only relevant evidence is what actually occurred during the stop and arrest. Deputy Simpkinson, on the other hand, argues that on the evening in question, Plaintiff behaved suspiciously by driving slowly through an empty parking lot of a closed bar at 1 a.m. and then failed to obey Deputy Simpkinson’s repeated and obvious signals to bring his vehicle to a stop. Plaintiffs elusive behavior lead Deputy Simpkinson to conclude that Plaintiff was attempting to flee or elude Deputy Simpkinson, driving erratically for over a half-mile and committing several traffic violations before finally heeding Deputy Simpkinson’s signals and bringing his vehicle to a stop. When Deputy Simpkinson finally approached Plaintiffs vehicle, he did so cautiously and with his weapon drawn based on Plaintiffs suspicious and elusive behavior. While Deputy Simpkinson ultimately holstered his weapon before approaching Plaintiffs vehicle, it is his testimony that Plaintiff also ignored several commands to exit his vehicle. These are the facts, as alleged by Deputy Simpkinson, that comprise the totality of the circumstances which he faced at the time that he removed Plaintiff from his vehicle. As Deputy Simpkinson testified:
I don’t know if during that half-mile they were on the phone, calling buddies, saying “Hey, I’m getting pulled over. I’ve got a warrant. Come and shoot this deputy in the head for me.” I don’t have that information. I don’t have that luxury. I have to act, I have to do it now. That’s what we do. I don’t have that luxury.
(Def.’s Resp. Ex. C, Deposition of Micky Simpkinson, April 29, 2010, 92:14-21.)
The Court concludes that evidence relating to Plaintiffs arrest and conviction for operating his vehicle while intoxicated on the evening of his arrest by Deputy Simpkinson, including evidence of his blood alcohol level that night, is admissible for several reasons. Plaintiff claims that Deputy Simpkinson acted “without justification or provocation.” In determining whether Deputy Simpkinson’s actions were objectively reasonable in light of all the facts and circumstances confronting him that evening, any fact which bears on Deputy Simpkinson’s alleged “justification or provocation” for pulling Plaintiff over and for removing him from his vehicle with a certain amount of force, will be relevant to Deputy Simpkinson’s claim that his conduct was reasonable under the situation that he perceived. In this regard, Plain
First, evidence of Plaintiffs intoxication at the time of his encounter with Deputy Simpkinson, and specifically the level of his inebriation as determined by his blood alcohol level immediately following the incident, bears on the credibility of Plaintiffs recall of events that evening. See Grimes v. Mazda North American Operations,
Second, evidence that Plaintiff was convicted of OUIL Third is relevant to dispute Plaintiffs contention that he was not aware that he had done anything wrong on the evening he was arrested by Deputy Simpkinson, that he did not realize that Deputy Simpkinson was signaling him to pull over and that he was cooperative and non-combative throughout the events of that evening. Plaintiff was familiar with the drill: he conceded in his deposition that, prior to July 23, 2007, he had been convicted of OUIL “five, six times, I’m not sure.” (Pl.’s Resp. to Def.’s Motion in Limine to Exclude Dr. Lyman’s trial testimony, Dkt. No. 61, Ex. B, Deposition of Joseph Alvarado, April 22, 2010, 36:2-8.) Defendants are entitled to demonstrate that Plaintiff, who admits only to drinking “a couple of shots and beers” with friends the evening of the accident in fact had a blood alcohol level of .28, was aware that drinking and driving with that amount of alcohol in his system was illegal and was or should have been aware that Deputy Simpkinson was attempting to pull him over. This evidence tends to substantiate Deputy Simpkinson’s testimony that he perceived that Plaintiff was attempting to elude the stop and was less than cooperative and combative in resisting Deputy Simpkinson’s signal for him to stop and to exit his vehicle.
Evidence of Plaintiffs intoxication and blood alcohol level that evening, as well as Plaintiffs ultimate conviction for OUIL Third, confirm the level of Plaintiffs intoxication, the severity of the offense, and support Deputy Simpkinson’s perception that Plaintiff was attempting to avoid the stop. See Greene v. Distelhorst,
Plaintiff argues that because the charge against him for fleeing and eluding was dropped as a result of his plea agreement on the OUIL Third charge, evidence of Plaintiffs motive to elude the stop that evening is irrelevant. (Def.’s Resp. Exs. F, I, Judgment of Sentence and Criminal Complaint.) The fact that the fleeing and
The video tape of the arrest will speak in part to Plaintiffs behavior, elusive or not, in response to Deputy Simpkinson’s signals to Plaintiff to stop his vehicle the night of the arrest. But it would ignore the totality of the circumstances actually faced by Deputy Simpkinson that evening, and would deprive the jury of important probative facts, to exclude evidence of Plaintiffs actual state of intoxication that night and the fact that the conviction was for OUIL Third. It would be unfairly prejudicial to Deputy Simpkinson and misleading to the jury to permit a determination as to the reasonableness of Deputy Simpkinson’s conduct without knowledge that, at the time of the incidents depicted on the tape and described by the various witnesses who will testify at trial, Plaintiff was driving his vehicle with a blood alcohol level of .28. This evidence is probative of Plaintiffs knowledge, motive and intent and is not more prejudicial than probative. It tends to support Deputy Simpkinson’s claim that he acted reasonably under the circumstances and rebuts Plaintiffs claim that Deputy Simpkinson acted totally without justification or provocation. While perhaps prejudicial in this respect to Plaintiffs claims, it is not unfairly so. Often the most crucial evidence in a case results in prejudice of some kind to one side or the other. “Unfair prejudice means the undue tendency to suggest a decision on improper considerations; it does not mean the damage to a [ ] case that results from the legitimate probative force of the evidence.” Doe v. Claiborne County,
Additionally, Deputy Simpkinson persuasively argues that Plaintiffs level of intoxication at the time of his arrest is probative of the Deputy Simpkinson’s claim that Plaintiff was generally uncooperative and combative in delaying the traffic stop, refusing commands to exit the vehicle and refusing to remove his hands from the steering wheel.
2. Deputy Simpkinson will be permitted to introduce evidence regarding Plaintiffs prior alcohol related incidents, which are relevant to Plaintiffs knowledge of the consequences of being arrested for a fifth time while driving under the influence of alcohol and are also probative of Plaintiffs motive to attempt to elude Deputy Simpkinson.
Deputy Simpkinson argues that evidence of alcohol related incidents that oc
For the same reasons discussed above, the Court concludes that evidence of Plaintiffs prior alcohol related arrests are admissible to support Deputy Simpkinsoris perception, which Plaintiff disputes, that Plaintiff was attempting to evade arrest on the evening of the incident and that Plaintiffs elusive behavior factored into Deputy Simpkinsoris assessment of the totality of the circumstances at the time he stopped Plaintiff. See Hernandez v. Albuquerque, No. 02-0333,
Further, evidence of Plaintiffs prior alcohol related incidents tends to establish that Plaintiff knew exactly what was happening when he was about to be pulled over by Deputy Simpkinson as Plaintiff, by his own admission, had been arrested and convicted of driving while intoxicated “or similar offenses,” on at least four prior occasions. (PL’s Mot. 10.) As discussed above, Plaintiff was uncomfortably familiar with the drill. Additionally, evidence of these of prior offenses tends to establish that Plaintiff was not operating under a mistaken assumption that he had not violated any laws on the evening of his arrest as he was well informed of the nature of the offense that he was committing that night. Deputy Simpkinson offers this evidence to prove Plaintiffs knowledge, motive and intent on the night of his arrest, which tends to refute Plaintiffs claim that he had no idea that Deputy Simpkinson was trying to pull him over and that he did not believe that he had violated any laws by driving while under the influence of alcohol. Were the jury to question Plain
The Court concludes that evidence of the fact of Plaintiffs prior alcohol related arrests is relevant and is not offered for the prohibited purpose of proving that Plaintiff acted in conformity with prior alcohol related incidents. The evidence can be offered to prove Plaintiffs motive and knowledge, per Fed.R.Evid. 404(b), and is not unfairly prejudicial per Fed. R.Evid. 403.
3. The Court will exclude as irrelevant evidence that Plaintiff declined to take certain sobriety tests at the scene of his arrest.
Plaintiff seeks to exclude evidence that Plaintiff refused to take a Preliminary Breath Test (PBT), a field sobriety test or a Breathalyzer Test at the scene of the arrest. Deputy Simpkinson argued in his brief that this evidence was relevant to Plaintiffs now-dismissed deliberate indifference claim. (Def.’s Resp. 16-17.) That claim has now been dismissed and therefore the evidence is not admissible for that purpose. The Court concludes that evidence that Plaintiff refused certain sobriety tests is of marginal relevance to the issues that remain. The parties were unable to inform the Court at oral argument about Plaintiffs legal rights with respect to declining to take certain tests. Moreover, any probative value of Plaintiffs continued uncooperative behavior after the occurrence of the events that are the subject of his excessive force claim, even if relevant, is outweighed by its potential for unfair prejudice. Therefore, the Court will grant Plaintiffs motion to exclude evidence of these facts.
4. The Court will exclude, at least during the liability phase of the trial, evidence of Plaintiffs 1992 conviction for criminal sexual conduct and his obligation as a condition of his probation to register as a sex offender.
The parties stipulated at oral argument that this evidence is relevant, if at all, only to the issue of damages and the Court will exclude this evidence during the liability phase of the trial.
B. Deputy Simpkinson’s Motion to Preclude Plaintiff from Offering the Expert Opinions of Michael D. Lyman, Ph.D at Trial
Federal Rule of Evidence 704 provides in pertinent part: “[Tjestimony in the form of an opinion or inference otherwise
The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, “Did T have capacity to make a will?” would be excluded, while the question, “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” would be allowed.
Fed.R.Evid. 704 Advisory Committee Note.
In sum, the expert’s opinion must stop short of embracing the “legal terminology” which frames the ultimate legal conclusion which the jury must reach in the case. See Torres v. County of Oakland, et al.,
In Berry v. City of Detroit,
Even if a jury were not misled into adopting outright a legal conclusion proffered by an expert witness, the testimony would remain objectionable by communicating a legal standard-explicit or implicit-to the jury. Whereas an expert may be uniquely qualified by experience to assist the trier of fact, he is not qualified to compete with the judge in the function of instructing the jury....
Far more troubling, [the expert] testified that Jacobs’ conduct was not “justi*689 fied under the circumstances,” not “warranted under the circumstances,” and “totally improper.” We have held that an expert’s testimony that a defendant was “negligent” should not have been allowed. We see no significant distinction in [the expert’s] conclusory condemnations of Jacobs’ actions here, which, in the language of the advisory committee, “merely [told] the jury what result to reach.”
DeMerrell v. City of Cheboygan,
In the instant case, Plaintiff — Appellant’s expert testified as to a legal conclusion because he stated that “it was objectively unreasonable for Officer White to shoot Mr. DeMerrell.” (JA 430). As stated previously, objective reasonableness is the precise legal standard of Graham to be used in the qualified immunity inquiry of Saucier. See Saucier [v. Katz ], 533 U.S. [194] at 201,121 S.Ct. 2151 [150 L.Ed.2d 272 (2001) ]; Graham [v. Connor ], 490 U.S. [386] at 396,109 S.Ct. 1865 [104 L.Ed.2d 443 (1989)]. Additionally, Plaintiff — Appellant’s expert’s opinion further states that “a reasonable officer on the scene would not have concluded at the time that there existed probable cause that Mr. DeMerrell posed a significant threat of death or serious physical injury to the officer or others.” (JA 430). This testimony also expresses a legal conclusion, going beyond “stating opinions that suggest the answer to the ultimate issue.” Berry,25 F.3d at 1353 . Still other conclusions by Plaintiff — Appellant’s expert were improper legal conclusions, namely that the “use of deadly force by [Officer White] was improper and unnecessary.” See Hygh v. Jacobs,961 F.2d 359 , 364 (2d Cir.1992) (precluding expert testimony in a § 1983 excessive force case that an officer’s conduct was not “justified under the circumstances,” not “warranted under the circumstances,” and “totally improper”).
Applying the principles and logic enunciated in these cases, it is clear that much of what Dr. Lyman purports to testify to is impermissible expert testimony.
Deputy Simpkinson’s argument fails to acknowledge that, notwithstanding the concern expressed by the Thompson court as to the CPD General Orders, the court in Thompson did not denounce the trial court’s admission of extensive “testimony concerning the CPD’s policies and procedures [which] were ubiquitous during the proceedings.” Id. at 455-56. The court noted that officers “testified at length concerning the CPD’s use of force guidelines and answered a number of questions regarding what use of force would have been authorized in a situation like the one the [defendants] encountered with [plaintiff].” Id. at 456. Without discussing the basis for its distinction between the CPD “General Orders” and the CPD “Policies and Procedures,” the court nonetheless affirmed the district court’s decision to permit extensive discussion of the latter.
Cases such as Eberle and Norman, which interpret applicable Sixth Circuit law, indicate that expert testimony regarding recognized police policies and procedures, and specifically continuum of force policies, are appropriate subjects of expert testimony, provided that the experts do not express legal conclusions based on their interpretation of the application of those policies in a particular case. Similarly, in Champion, supra, the Sixth Circuit countenanced expert testimony on the continuum of force guidelines as reflected in nationally recognized police standards. The Court concludes that Dr. Lyman may testify regarding nationally recognized police standards governing the use of excessive force, as well as the specific OCSD excessive force guidelines to which Deputy Simpkinson was subject.
• That the applicable “standard of care” to be applied in this case was enunciated by the Court in Graham v. Connor,490 U.S. 396 [386,109 S.Ct. 1865 ,104 L.Ed.2d 443 ] (1989). Instructing the jury on the law is role of the judge, not the expert.
• That “the level of force used by Deputy Micky Simpkinson against Joseph Alvarado in removing him from his vehicle was excessive, unnecessary and served no objectively reasonable purpose.” This is an opinion as to the ultimate legal conclusion called for in this ease and is impermissible expert testimony.
• That “there was no reasonable belief on the part of Simpkinson that either occupant of the vehicle was dangerous or otherwise posing a threat.” This is simply unhelpful to the jury and also states a legal conclusion regarding the reasonableness of Deputy Simpkinson’s belief.
• That “Simpkinson’s actions in failing to allow Alvarado a reasonable amount of time to exit the vehicle on his own are more consistent with an officer who is acting punitively than one acting in an objectively reasonable fashion.”
• That “based on the departmental use of force matrix provided to me in this case, the grabbing of Alvarado was excessive and unnecessary at the time because it appears as though no reasonable effort was made by Simpkinson to ask Alvarado to exit his vehicle.”
• That “there was no need for Simpkinson to grab Alvarado and remove him from his vehicle without first waiting only seconds for backup officers to assist.” This statement appears to be unrelated to any of the policies or practices on which Dr. Lyman relies.
• That “it is [his] opinion, stated within a reasonable degree of professional certainty, considering Alvarado’s low if non-existent levels of resistance, that the actions in which [sic] Deputy Simpkinson used to remove him from his vehicle, under the circumstances known to Simpkinson at the time, were excessive, unnecessary and served no legitimate law enforcement purpose. As such, Simpkinson’s actions were inconsistent with nationally recognized standards of care, professional policing guidelines and failed to be objectively reasonable.”
The Court will permit Dr. Lyman to testify on the use of excessive force but will be vigilant in precluding him for expressing opinions that embrace the actual legal conclusion that the jury is asked to decide in this case, i.e. whether Deputy Simpkinson’s conduct in effecting Plaintiffs arrest on the evening in question was unreasonable under the totality of cireum
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS PART AND DENIES IN PART Plaintiffs Motion to Exclude Evidence (Dkt. No. 89), GRANTS IN PART AND DENIES IN PART Defendants’ Motion to Preclude Dr. Lyman’s Opinions at Trial (Dkt. No. 57) and DEFERS RULING on Defendants’ Motion to Preclude Dr. Sase’s Opinions at Trial (Dkt. No. 46).
IT IS SO ORDERED.
Notes
. The Oakland County Sheriffs Department was dismissed with prejudice by stipulation of the parties. (Dkt. No. 8, Stipulation and Order of Dismissal for Defendant Oakland County Sheriff's Department Only.) At oral argument on Defendants' motion for partial summary judgment, Plaintiff dismissed with prejudice his claim against Oakland County. (Dkt. No. 70, April 14, 2011 Opinion and Order, 4 n. 3.)
. The cases cited by Plaintiff in his supplemental brief (Dkt. No. 77) are inapposite. The issue in this case is not whether Deputy Simpkinson was aware of Plaintiff's prior alcohol related offenses such that he may have been justified in reacting the way that he did under the circumstances he faced. The issue is whether evidence of Plaintiff's prior alcohol related offenses tends to discredit Plaintiff's claim that he had no knowledge that he was doing anything wrong and tends to support Deputy Simpkinsoris perception that Plaintiff was attempting to elude arrest by establishing a motive on Plaintiffs part to do so. The evidence is not being offered to show that Plaintiff’s behavior the night of his arrest conformed to his prior bad acts, i.e. that he was once again driving while intoxicated on the night of his arrest, but to show knowledge, motive and absence of mistake.
. Deputy Simpkinson also argues that evidence of Plaintiffs conviction of OUIL on the evening of July 23, 2007 and prior alcohol related incidents (as well as evidence of his conviction for criminal sexual conduct) are admissible on the issue of damages. These arguments will be addressed in a separate ruling by the Court following a determination by the jury on the issue of liability. In summary, Plaintiff claims to be totally disabled from working in any capacity as a result of his shoulder injury and claims that he was unable to return to work at GM because of the injury and was forced to take early retirement, resulting in fewer benefits and total gross income than he would have received had he not been forced by the injury to take early retirement. Defendant responds that GM would not have accommodated Plaintiff's 300 day sentence for his July 23, 2007 arrest and subsequent conviction and would have fired Plaintiff and that this was the reason that Plaintiff took early retirement. Deputy Simpkinson argues that Plaintiff's conviction for CSC diminishes his employability and affects the amount that Plaintiff can claim as lost future earnings. These issues will be dealt with in more depth following a jury verdict as to liability.
. While the scope of his testimony must be significantly cabined, Dr. Lyman’s qualifications seem adequate to permit him to testify on the use of excessive force. In addition to his 12 years of service as a criminal investigator, he has trained new officers on the use of excessive force and served on numerous police officer discipline boards and is currently
. The Court is aware, as defense counsel pointed out at oral argument in this matter, that "city policies do not determine constitutional law.” Smith v. Freland,
. Dr. Lyman will not be permitted to testify in any respect regarding the OCSD's failure to train. This claim was dismissed on summary judgment and any testimony on this issue will be excluded if proffered.