Standards of Admissibility for Expert Testimony as to Ultimate Issue, Credibility Determinations and State of Mind

From Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) (§ 1983 action against a police officer):

Plaintiff's police expert Walter Signorelli ("Signorelli") filed reports in this case on July 31, 2010.... Defendants move to preclude Signorelli from testifying to or otherwise presenting evidence of opinions that fall into four categories: 1) opinions that embrace ultimate legal issues; 2) opinions as to credibility of witnesses; [and] 3) opinions as to Officer Dewees's state of mind....

A. Ultimate Legal Issues

Defendants argue that Signorelli offers opinions embracing the ultimate legal issues in the case, which intrude on the role of the jury and should be excluded under Fed. R. Evid. 704(a). These opinions include whether the police had probable cause to stop and arrest Plaintiff, whether the police used unreasonable and unnecessary force, whether Officer Dewees acted in a reasonable or necessary manner, whether the City of Chester was indifferent to Plaintiff, and whether Plaintiff's actions were a "public annoyance." Plaintiff, in her response (ECF No. 41), contends that Signorelli's statements are descriptive and not intended to have legal import.

Federal Rule of Evidence 704(a) provides that, in general, "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." "Rule 704 of the Federal Rules of Evidence 'provides that opinion testimony is not objectionable because it embraces an ultimate issue to be decided.'" United States v. Roman, 121 F.3d 136, 141 (3d Cir. 1997) (quoting United States v. Theodoropoulos, 866 F.2d 587, 591 (3d Cir. 1989)). However, such testimony can be excluded if it is not "otherwise admissible." Fed. R. Evid. 704(a). As the Rules Advisory Committee explained, "[t]he abolition of the ultimate issue rule does not lower the bars so as to admit all opinions," because the expert testimony must be helpful to the trier of fact and not waste time pursuant to Rules 701, 702, and 403. Fed. R. Civ. P. 704 Advisory Committee's Note. Collectively these rules of evidence "afford ample assurances against the admission of opinions which would merely tell the jury what result to reach," and require the court to "exclude opinions phrased in terms of inadequately explored legal criteria." Id. An expert's "opinion on a question of law" is not admissible. Haberern v. Kaupp Vascular Surgeons Ltd. Defined Ben. Plan & Trust Agreement, 812 F. Supp. 1376, 1378 (E.D. Pa. 1992) (Huyett, J.) (citing 1 McCormick on Evidence, § 12, at 50 (John W. Strong ed., 4th ed. 1992)).

Defendants cite Burger v. Mays, 176 F.R.D. 153 (E.D. Pa. 1997) (Van Antwerpen, J.) for the proposition that the court should exclude an expert's "testimony that the Defendant's use of force was unreasonable under the circumstances or that the Defendant unreasonably seized the Plaintiff." Id. at 157. In Burger, the *** court found that the expert's testimony regarding police procedures was "relevant to the jury's determination that the Defendant unlawfully seized and assaulted the Plaintiff" and did not "intrude upon the jury's role to determine the ultimate issues in this case," and thus was admissible. Id. at 156-57. However, the court distinguished the expert's testimony regarding the unreasonableness of the force used in the seizure, finding that the opinion "would be instructing the jury what result to reach and would be expressing a legal conclusion." Id. at 157 (citing Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992)). The testimony regarding the reasonableness of the defendant's use of force was not admissible. Id.

Similarly, in Tschappat v. Groff, Civ. A. No. 3:CV-01-2279, 2004 WL 5509087 (M.D. Pa. June 2, 2004) (Blewitt, M.J.), the court held that a police expert "should be allowed to testify as to what proper police procedures are in apprehending a suspect and whether Defendant Groff failed to follow proper police procedures," and also "to the prevailing use of force standards," which were relevant to the jury's determination whether the officer unlawfully seized and assaulted the plaintiff. Id. at *3. However, the expert was not permitted "to testify that Defendant Groff unreasonably seized the Plaintiff or that Defendant Groff's conduct was unreasonable under the circumstances," because such testimony "would intrude upon the jury's function to decide one of the ultimate issues in this case" and "impermissibly expresse[d] legal conclusions." Id. See also Berry v. City of Detroit, 25 F.3d 1342, 1353-54 (6th Cir. 1994) (testimony by a purported police expert that a city's failure to discipline its officers for using unwarranted deadly force constituted "deliberate indifference" was an inadmissible legal conclusion); Whitmill v. City of Philadelphia, 29 F. Supp. 2d 241, 246 (E.D. Pa. 1998) (Hart, M.J.) (police expert was not permitted to offer an opinion on the legality of the plaintiff's seizure because the issue "was a matter for the jury to decide after proper instruction from the court" and the expert testimony "would have usurped the role of the court and the jury").

Accordingly, the Court will grant Defendants' motion to preclude Signorelli's opinions as to ultimate legal conclusions, including whether Officer Dewees used "unreasonable" force, whether Dewees had "probable cause," whether the treatment of Plaintiff was "unlawful," and whether the City showed "indifference." The Court will admit Signorelli's opinions about police training, prevailing standards for use of force, and proper police procedures (e.g., "Police Officers are trained that they may use force only when necessary and reasonable").

B. Credibility Determinations

Defendants argue that the Court should exclude Signorelli's testimony about witness's credibility as impermissible under Fed. R. Evid. 702. "Evaluation of witness credibility is the exclusive function of the jury." Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 262 (3d Cir. 1987) (citing Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1234 (D.C. Cir. 1984)). In Whitmill v. City of Philadelphia, the district court precluded a police expert's proposed testimony concerning the credibility of the officer defendants. Whitmill, 29 F. Supp. 2d at 246-47. The court explained that allowing the expert to testify about the officer's credibility "would have usurped the jury's role in accessing credibility." Id. at 247.

In this case, Defendant cites eight examples of supposed credibility assessments in Signorelli's expert reports, including the following statements and phrases: the "alleged traffic signal violation"; Plaintiff's "explanation" of her actions; Officer Dewees "may have been annoyed" by Plaintiff; Officer Dewees "should have known that he could not shoot the Plaintiff for going through a red light and failing to stop"; 2 Officer Dewees "did not describe any threatening moves" by Plaintiff; Officer Dewees "has not articulated any facts or observations to support his conjecture"; "it is reasonable to assume that [Officer Dewees's] failure to note that he had drawn his firearm was done by design," and Officer Dewees "clearly indicated his lack of knowledge of police procedures regarding the differences between an arrest and a stop, and when the Miranda warnings are required." Defs.' Mot. Limine at 7-8.

Plaintiff contends that these statements are not credibility assessments, and the Court somewhat agrees. The Court will preclude as an improper credibility assessment any opinions as to reasonableness, why an officer acted or failed to act, and the statement that Officer Dewees "has not articulated any facts or observations to support his conjecture." The remainder of the statements reviewed in this section will not be precluded as credibility determinations.

C. [Defendant] Officer Dewees's State of Mind

Defendants argue that Signorelli is not qualified to testify about Officer Dewees's state of mind. Specifically, Defendants move to preclude Signorelli from testifying that Officer Dewees intentionally did not write in his arrest report that he removed his service weapon because he wanted to prevent his superiors from learning he had done so. Plaintiff contends that an expert may opine why a police officer took a certain action, but provides no supporting legal citations.

The Third Circuit has held that Federal Rule of Evidence 702 has "two major requirements": 1) "the proffered 'expert' must be qualified to express an expert opinion," based on the expert's "'knowledge, skills, and training,'" and 2) "the proffered expert opinion must be reliable." In re TMI Litig.,193 F.3d 613, 664 (3d Cir. 1999) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994)). Defendants cite Roberson v. City of Philadelphia, No. Civ. A. 99-3574, 2001 WL 210294, at *5 n.12 (E.D. Pa. 2001) (Shapiro, J.) for the proposition that a police liability expert should be precluded from testifying about an officer's state of mind because the expert is not qualified in that field. See also Robinson v. Hartzell Propeller Inc., 326 F. Supp. 2d 631, 648 (E.D. Pa. 2004) (DuBois, J.) (metallurgy and FAA experts were not qualified to testify as to the state of mind of defendant's employees).

Here, Plaintiff has not offered Signorelli as an expert with knowledge, skills, and training in assessing state of mind, and it is doubtful any expert could testify as to state of mind. Therefore, Defendants' motion will be granted with respect to precluding Signorelli's opinions as to Officer Dewees's state of mind.

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