A jury found for the District of Columbia government and a detective of the Metropolitan Police Department (“MPD”) (together, “the government”), in this case
Specifically, appellant contends that the district court’s evidentiary rulings allowed the government to maintain a “contrived” defense that the detective’s actions were constitutionally permissible while denying her the ability to refute it. Appellant’s Br. 29. We find no abuse of discretion by the district court. The record reveals that it properly excluded those parts of the report likely to confuse the jury and unfairly prejudice the government. We conclude that the government failed to comply with Rule 26(a)(2)(E) by not supplementing the medical expert’s disclosure to reflect an interview with the detective on which the expert intended to rely at trial, but that the violation was harmless and so the district court’s refusal to strike the expert’s testimony was not an abuse of discretion. Accordingly, because appellant’s other claims of error and her bias claim are unpersuasive, we affirm.
I.
According to Detective Kevin McConnell’s testimony at trial, late on the night of August 3, 2007 he was driving on Good Hope Road in Southeast Washington, D.C. when he observed an altercation inside a carry-out restaurant. As he pulled over to the curb, he saw a man pulling on the door separating the customer area from the kitchen. McConnell, dressed in plainclothes but displaying his badge on a chain around his neck, entered the carry-out and announced, “Police.” Tr. Nov. 16, 2009 p.m., at 85. The man — who turned out to be Jason L. Taft — walked up to McConnell “aggressively,” prompting McConnell to push Taft backwards. Id. at 86. Taft responded: “Why did you hit me, Officer?” Id. at 40. McConnell told him he was under arrest, after which a lengthy and violent struggle ensued during which the two men “went down to the ground several times,” id. at 87, took turns attempting to gouge each other’s eyes out, and exchanged bites. Then McConnell put Taft in a “Full Nelson” hold, from which Taft managed to break free, and Taft began to run for the door. McConnell attempted to grab him by the collar, but Taft ducked, and McConnell flipped over and hit his head on the concrete pavement. By this point — several minutes into the brawl— McConnell was “completely gassed out” and having trouble breathing. Id. at 88. With McConnell still on his knees, Taft approached, placed his arms around his neck, and told him, “I’m going to choke you out, motherfucker.” Id. at 89. Taft placed the full weight of his body on McConnell’s carotid arteries, restricting the flow of blood to his brain, and McConnell began to black out. As McConnell was trying to push Taft off him, McConnell pulled out his nine millimeter service pistol and pulled the trigger. McConnell could not hear anything besides a “click,” and his vision was coming and going. Id. He felt Taft’s weight lift off him, but he thought Taft was “still there,” id. at 90, and squeezed the trigger two more times.
Prior to trial, the government moved to exclude both the FIT Report and Inspector Porter’s letter. During an in limine hearing on the motion, the district court heard testimony from Sergeant Gutherie and Inspector Porter about the procedures and conclusions of the use of force investigation and recommendations. The district court ruled that it would not allow into evidence either the FIT Report or Inspector Porter’s letter recommending Detective McConnell’s termination, reasoning that the witness statement summaries would not “tell[ ] any different story than the evidence we’re going to hear in this courtroom about exactly what happened,” and because the conclusions about the policy violation were “not involved with deciding the constitutional question of the reasonableness of force.” Tr. Nov. 16, 2009 a.m., at 27. The district court explained that although the FIT Report might “at some minimal level be admissible,” its admission would be “hedged about with jury instructions,” would likely cause confusion between the issues before the jury and those before the MPD’s internal disciplinary trial board, and would result in a “trial within a trial about the whole District of Columbia disciplinary system.” Id. at 28. Appellant could, nonetheless, seek to have parts of the FIT Report admitted into evidence if the door were opened “by some argument or some evidence that is used in the trial.” Id.
At trial, appellant, through counsel, adduced undisputed eyewitness testimony
In defense, the government called two expert witnesses. The first, Dr. Richard Restak, an expert in neuropsychiatry, testified generally about the effect of restricted oxygen flow to the brain on perceptive and cognitive functioning, aided by an in-court demonstration by Detective McConnell of the chokehold in which he claimed Taft had held him. Dr. Restak explained that in such situations, individuals are overtaken by a primitive fear of death; their sense of perception and comprehension is diminished; and their sense of hearing may also be diminished. On direct examination, the government asked no questions, and Dr. Restak gave no opinion, specific to the facts of this case, relying only on his general expertise. On cross-examination, appellant observed that Dr. Restak had not testified to his opinion of the case-specific circumstances even though his pretrial report had provided such an opinion on the basis of his review of the FIT Report, suggesting perhaps that Dr. Restak’s opinion was somehow adverse to the government’s case. On redirect, the government asked Dr. Restak for his case-specific opinion, and over appellant’s objection, Dr. Restak opined that Taft’s chokehold on Detective McConnell “interfered with his mentation, his cognitive functioning, and that this, just to put it into a nugget, into a sentence, is what happened.” Tr. Nov. 17, 2009 p.m., at 122.
On re-cross, appellant asked Dr. Restak about the basis of his opinion. Dr. Restak responded that it was based on his review of witness statements in the FIT Report, and on his interview and examination of Detective McConnell on October 22, 2009, even though his Federal Rule of Civil Procedure 26(a)(2) expert disclosure (dated September 25, 2009) did not mention an in-person interview and examination of Detective McConnell and the notice was not supplemented by the government to reflect the October interview. Appellant questioned Dr. Restak about this discrepancy. Dr. Restak agreed that in preparing the September 25, 2009 disclosure he had relied on the FIT Report, and appellant began describing parts of the report, which Dr. Restak, following along, confirmed. The district court allowed this recitation to continue, over the government’s objection, until appellant began to discuss the “discrepancies and all of those other things that are in the report” — an apparent reference to Sergeant Gutherie’s factual findings and conclusions — at which point the
When appellant persisted in this line of questioning, the district court excused the jury and stated that it surmised that appellant was “trying to get [Dr. Restak] to quote the thought process of Sergeant Gutherie,” and that those thought processes and opinions were “not coming into evidence.” Id. at 133. Appellant argued that she should be allowed to use the FIT Report in its entirety to question the basis for Dr. Restak’s opinion, and, further, that “his whole testimony ought to be stricken” because the required expert disclosure either was not filed or was incomplete. Id. at 134, 137. The district court informed appellant: ‘You may not make reference to the discrepancies portion of the FIT Report, you may not make reference to the opinions of Sergeant Gutherie. You may use whatever is in the report that constitutes statements of Detective McConnell about the choke hold, or of anybody else who saw the choke hold.” Id. at 138. Thereafter, Dr. Restak, indulging a hypothetical from appellant, opined that someone who shot another person for no reason would likely be severely emotionally disturbed, although not necessarily cognitively impaired as he believed Detective McConnell had been. When the government attempted to ascertain whether Dr. Restak found Detective McConnell to be emotionally disturbed based on his interview, the district court sua sponte precluded this line of questioning.
The government’s second expert witness was G. Patrick Gallagher, an expert in police policies and training related to the use of force and other areas. When Gallagher began discussing his work on national standards and internal affairs investigations, the district court called the parties’ counsel to the bench and warned the government that Gallagher’s testimony, if it continued, “is going to open the door to that FIT Report.” Id. at 154. The government thereafter declined to ask Gallagher any more questions and he was excused as a witness.
Additionally, the government played for the jury, over appellant’s objection, tape recordings of telephone calls from individuals in and near the carry-out reporting the altercation and requesting police assistance. After closing arguments, instructions, and deliberation, the jury found for the government, rejecting appellant’s excessive force and assault and battery claims. Appellant appeals.
II.
Appellant contends that the district court erred in refusing to admit into evidence in their entirety the FIT Report and Inspector Porter’s letter recommending termination of Detective McConnell’s employment, and thus denied her a fair trial. The trial record suggests that appellant sought to use the FIT Report’s conclusion that Detective McConnell violated MPD policy when he fired his second and third shots at Taft in support of the excessive force claim. This is confirmed by appellant’s brief on appeal. The district court excluded portions of the FIT Report relating to the conclusion that the detective had violated MPD policy out of concern it would cause the jury to confuse the policy violation issue — not implicated in the trial — with the separate question of whether Taft’s constitutional rights were violated because McConnell’s actions were objectively unreasonable under the circumstances. Appellant maintains that excluding this portion of the FIT Report prevented her from refuting the government’s defense that Detective McConnell’s conduct was objectively reasonable, a defense she characterizes as “unequivocally inconsistent” with the content of the FIT
Our review of the district court’s evidentiary rulings is for abuse of discretion.
See Whitbeck v. Vital Signs,
First, as appellant points out, contrary to the government’s position, the FIT Report and Inspector Porter’s letter are non-hearsay party admissions under Federal Rule of Evidence 801(d)(2)(D).
4
It is undisputed that Sergeant Gutherie and Inspector Porter were acting within the scope of their employment by the District of Columbia government, one of the defendants in this case — at the time they prepared and submitted them. The government responds, without citation to authority, that the documents are not party admissions because the District government did not “adopt or ratify” them and the findings were not “final.” Appellees’ Br. 23. The plain text of Rule 801(d)(2)(D) requires neither adoption nor ratification but only that the statement is offered “against a party,” Fed.R.Evid. 801(d)(2), and it is “by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,” Fed. R.Evid. 801(d)(2)(D);
see Talavera v. Shah,
Second, appellant is partially correct that the documents were admissible against all defendants — including Detective McConnell in his individual capacity— because they are covered by the public records exception to the hearsay exclusion. This exception provides,
inter alia,
that records, reports, or statements setting forth “factual findings resulting from an investigation made pursuant to authority granted by law” are admissible “unless the sources of information or other circumstances indicate lack of trustworthiness.” Fed.R.Evid. 803(8)(C). The district court found that the FIT Report’s factual basis was sufficiently reliable under Rule
The government’s suggestion that the FIT Report is not a Rule 803(8) public record because it was an “ ‘interim report subject to revision and review,’ ” Appellees’ Br. 21, fails because the report itself was final, and whether or not its author’s superiors chose to adopt it is irrelevant under Rule 803(8). There is no suggestion that Sergeant Gutherie had any intention to revise his report after he submitted it to the Use of Force Review Board. True, the review board disagreed with his finding of a MPD policy violation and concluded that Detective McConnell’s use of deadly force was within MPD policy and justified. But Inspector Porter overturned this conclusion and recommended termination of Detective McConnell’s employment based on the findings and conclusions in the FIT Report. The fact that the FIT Report had not been finally adopted or ratified by higher MPD authority prior to trial is irrelevant to whether it is a Rule 803(8) public record.
See In re Korean Air Lines Disaster of Sept. 1, 1983,
The district court’s
in limine
ruling excluding the FIT Report and Inspector Porter’s letter was without prejudice, inviting appellant to seek to use portions of the FIT Report if the door was “opened to its use by some argument or some evidence that is used in the trial.” Tr. Nov. 16, 2009 a.m., at 28. Appellant accepted that invitation and sought to get the contents of the FIT Report into evidence
For several reasons it seems clear that the district court did not abuse its discretion in drawing this line based on its balance of the probative value of the FIT Report against the danger of confusion and unfair prejudice. First, as the district court concluded, the excluded portions of the FIT Report — and all of Inspector Porter’s letter — were of little assistance to the jury because they were cumulative of the live witness testimony to be offered, and in fact offered, at trial. Indeed, the government never suggested during trial that Detective McConnell was under a real threat of attack at the time he fired the fatal shot. All of the eyewitness testimony indicated that Taft was moving away from Detective McConnell when he fired the final two shots. The government’s defense, through the testimony of Detective McConnell and Dr. Restak, focused on the cognitive deficiency Detective McConnell allegedly suffered at the time of the fatal shot as a result of the chokehold by Taft. Sergeant Gutherie’s conclusion that the attack at that point was only perceived and not real was thus cumulative of the undisputed evidence at trial.
Second, Sergeant Gutherie’s conclusion that Detective McConnell violated MPD policy was irrelevant to the question before the jury because although “police enforcement practices ... vary from place to place and from time to time” the Supreme Court observed that “the ... protections of the Fourth Amendment are [not] so variable.”
Whren v. United States,
The government further maintains that under District of Columbia law, violations of MPD General Orders are irrelevant to appellant’s assault and battery claims, citing
Evans-Reid v. District of Columbia,
To the extent these conclusions in the FIT Report were at all relevant, as appellant contends, the district court still did not abuse its discretion in ruling that this relevance was outweighed by the likelihood of confusing the jury and unfair prejudice to the government. Although as a matter of law the alleged MPD policy violation has no bearing on the Fourth Amendment analysis, it would be far less clear to a jury. One could readily imagine an argument to the jury oversimplifying the matter to suggest that the prior finding of a policy violation was inconsistent with the constitutional defense presented at trial— in fact, appellant makes precisely such an argument on appeal: “[Tjheir prior statements are unequivocally inconsistent with the positions that the trial court allowed the District to take in this litigation.” Appellant’s Br. 31. Even without such prodding, a jury informed of the alleged policy violation and the specific finding that the attack was perceived but not real at the time of the fatal gunshot might assign greater weight to these conclusions — appearing, as they do, in an official MPD report — than the Fourth Amendment analysis allows. The district court could reasonably be concerned that this would cause “big time” confusion of the issues, and preventing such confusion would require the admission of the conclusions to be “hedged about with jury instructions” and necessitate a “trial within a trial about the whole District of Columbia disciplinary system.” Tr. Nov. 16, 2009 a.m., at 28. Appellant succeeded in getting substantial evidence before the jury concerning whether the detective’s conduct was unreasonable. Considering the tenuous relevance of the excluded portions of the FIT Report, appellant fails to show the district court’s line-drawing regarding what portions were inadmissible was an abuse of discretion.
See Brooks v. Chrysler Corp.,
III.
Appellant more persuasively contends that the government violated Rule 26(a)(2) of the Federal Rules of Civil Procedure by failing to supplement its initial expert disclosure to reflect that Dr. Restak had personally interviewed and examined Detective McConnell.
Prior to trial, on October 8, 2009, the government turned over to appellant a September 25, 2009 letter from Dr. Restak as his expert disclosure pursuant to Federal Rule of Civil Procedure 26(a)(2). The letter stated, in pertinent part, that based on Dr. Restak’s review of the FIT Report and its attachments, he was of the view that “Detective McConnell was choked and threatened with death,” causing temporary hypoxia and partial loss of consciousness,
On re-cross, appellant inquired as to the basis for Dr. Restak’s case-specific opinion. Dr. Restak replied it was based on the FIT Report, the attachments thereto and on his interview and examination of Detective McConnell. Appellant, apparently surprised by the revelation that an in-person interview had taken place, requested Dr. Restak’s notes from that meeting, which were turned over, and further ascertained that Dr. Restak did not submit an additional report to government counsel after his meeting with Detective McConnell for production to appellant. Appellant then questioned Dr. Restak at length about the contents of the FIT Report on which he relied for his opinion in the September 25, 2009 report but did not inquire about the interview. The district court sustained the government’s objection when appellant began to inquire about the portion of the FIT Report containing Sergeant Gutherie’s conclusions. When appellant nonetheless persisted in this line of questioning, the district court excused the jury and held a bench conference. Appellant argued first, that because Dr. Restak had read and relied on the entire FIT Report, appellant should be able to ask about the entire FIT Report, and second, that because Dr. Restak “never issued a report ... [but was] allowed to testify” and the government had failed to supplement the expert disclosure to reflect Dr. Restak’s interview and examination of Detective McConnell, Dr. Restak’s testimony should be stricken. Id. at 132; see id. at 134, 137, 138. The district court denied the motion, ruling that appellant had “waived that” objection, referring to appellant’s previous withdrawal of her pretrial objection to the sufficiency of Dr. Restak’s initial Rule 26(a)(2) disclosure. Id. at 138; see id. at 135-36.
When trial resumed, appellant reviewed Dr. Restak’s notes on his interview and examination of Detective McConnell, and then asked a series of questions related to Dr. Restak’s opinion and credibility, but unrelated to his interview of Detective McConnell. On further re-direct, the government sought to inquire whether, during the interview, Dr. Restak found Detective McConnell to be suffering from an emotional disturbance, as appellant’s hypothetical had suggested. The district court sua sponte precluded this line of questioning.
Rule 26(a)(2) requires a party to disclose to the other parties six pieces of information concerning an expert witness, including
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
Fed.R.Civ.P. 26(a)(2)(B).
Appellant contends the government violated Rule 26(a)(2) in two respects: by failing to make a proper expert disclosure and by failing to supplement the disclosure to reveal the expert’s interview and examination of Detective McConnell on which he would rely in testifying at trial. As regards the first, appellant maintains that, because Dr. Restak considered his letter to be a memorandum to himself, not a formal report, the government failed to make a proper expert disclosure pursuant to Rule 26(a)(2). In the absence of any authority for the premise that the label the expert himself applies to his submission controls the analysis of the sufficiency of a Rule 26(a)(2) disclosure, however, the proper question is whether the disclosure complies with the rule’s substantive requirements. In this regard, assuming appellant’s first claim of error is not waived because it addresses a different point, the substance of Dr. Restak’s testimony plainly fell within the scope of the statement contained in his disclosure, which offered a detailed opinion that Detective McConnell experienced serious cognitive difficulties as a result of being choked and threatened with death. The third paragraph of the report also contains general opinions about the functioning of the brain, both under normal conditions and when frontal and temporal lobes are damaged. Viewed as a whole, the report provides the required “complete statement of all opinions” offered at trial by Dr. Restak. Fed.R.Civ.P. 26(a)(2)(B)(i);
see R.C. Olmstead, Inc. v. CU Interface, LLC,
The government’s Rule 26 disclosure fails, however, as appellant contends, to provide the full “basis ... [and] data or other information considered by the witness” in forming his opinions. Fed. R. Civ. P. 26(a)(2)(B)(i)-(ii). At trial, Dr. Restak stated that after submitting his initial report of September 25, 2009 to the government, he interviewed Detective McConnell on October 22, 2009 and this interview was one of the bases for his case-specific expert opinion. Rule 26 requires parties to file a supplemental disclosure reflecting “[a]ny additions or changes” to the required Rule 26(a)(2)(B) disclosures, and thus the government was required to file a supplement reflecting this additional basis for Dr. Restak’s opinion. Fed.R.Civ.P. 26(e)(2); see Fed.R.Civ.P. 26(a)(2)(E). Yet no supplement was ever provided to appellant reflecting that Dr. Restak’s testimony would also rely on an in-person interview, a clear violation of this duty to supplement.
The government’s response that it did not violate Rule 26’s duty to supplement is unpersuasive. Its claim that appellant has forfeited the objection by failing to raise it in a timely manner in the district court is belied by the record, which reflects that while appellant may have waived her pretrial objection to the facial sufficiency of the initial Rule 26(a)(2)(B) disclosure, she promptly objected to the
Nonetheless, the district court did not abuse its discretion in declining to strike Dr. Restak’s testimony, pursuant to Federal Rule of Civil Procedure 37(c)(1), because the government’s failure to supplement its disclosure was harmless,
see id.
As was made clear through re-cross-examination, Dr. Restak had reached his opinion before he had interviewed Detective McConnell and the interview did not change that opinion. Appellant thus suffered no unfair prejudice. Upon learning of the interview during re-cross, appellant received Dr. Restak’s notes from his interview of Detective McConnell and reviewed them. Inasmuch as Dr. Restak’s opinion was stated in the September 25, 2009 disclosure, appellant’s questioning focused on the materials Dr. Restak had reviewed for that opinion and asked no questions concerning the interview. Moreover, assuming sanctionable conduct, the striking of Dr. Restak’s entire testimony, as appellant sought, would have imposed a sanction that exceeded the discovery violation.
See Outley v. New York,
IV.
Appellant’s other grounds for reversal of the judgment for the government are unpersuasive.
First, appellant contends that the district court erred in admitting recordings of contemporaneous telephone calls reporting the altercation at the carry-out and requesting assistance — to emergency (911) and non-emergency (311) numbers — be
cause
Second, to the extent appellant now maintains that the danger of unfair prejudice from playing the recordings outweighed their probative value under Federal Rule of Evidence 403, noting the “yelling and screaming” on the recordings, Appellant’s Br. 52, this objection is forfeited because appellant failed to raise it in the district court.
See United States v. Spriggs,
Third, appellant contends that in these rulings and in two incidents that occurred outside the jury’s earshot, the district court judge exhibited such' bias as to deny appellant a fair trial. But appellant has not shown that the district court’s conduct “reveal[s] such a high degree of favoritism or antagonism as to make fair judgment impossible.”
Liteky v. United States,
Accordingly, we affirm the judgment of the district court.
Notes
. See 42 U.S.C. § 1983.
. When re-called by the government, Sergeant Gutherie testified about an inconsistent statement by one of appellant’s witnesses regarding the number of shots fired by Detective McConnell and Taft’s position relative to Detective McConnell at the time the shots were fired. Over appellant’s objection, the district court initially allowed this testimony for purposes of impeachment. Upon reconsideration, the district court struck the testimony and instructed the jury not to consider it.
. Federal Rule of Evidence 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Fed.R.Evid. 403.
. Federal Rule of Evidence 801(d)(2)(D) provides that a statement is not hearsay if it is offered against a party and is:
a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship^]
Fed.R.Evid. 801(d)(2)(D).