1 2 3 4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 EDDIE TATE, NO. C18-0141RSL 8 Plaintiff, 9 v. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO 10 TRE SMITH, et al., EXCLUDE THE OPINION OF GREGORY GILBERTSON 11 Defendants. 12 13 This matter comes before the Court on defendants’ “Motion to Exclude the Opinion of 14 Gregory Gilbertson.” Dkt. # 32. In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), 15 the Supreme Court charged trial judges with the responsibility of acting as gatekeepers to 16 prevent unreliable expert testimony from reaching the jury. The gatekeeping function applies to 17 all expert testimony, not just testimony based on the hard sciences. Kumho Tire Co. v. 18 Carmichael, 526 U.S. 137 (1999). 19 To be admissible, expert testimony must be both reliable and helpful. The reliability of 20 expert testimony is judged not on the substance of the opinions offered, but on the methods 21 employed in developing those opinions. Daubert, 509 U.S. at 594-95. In general, the expert’s 22 opinion must be based on principles, techniques, or theories that are generally accepted in his or 23 her profession and must reflect something more than subjective belief and/or unsupported 24 speculation. Daubert, 509 U.S. at 590. The testimony must also be “helpful” in that it must go 25 “beyond the common knowledge of the average layperson” (U.S. v. Finley, 301 F.3d 1000, 1007 26 1 (9th Cir. 2002)) and it must have a valid connection between the opinion offered and the issues 2 of the case (Daubert, 509 U.S. at 591-92). Plaintiff, as the party offering Mr. Gilbertson as an 3 expert, has the burden of proving both the reliability and helpfulness of his testimony. Cooper v. 4 Brown, 510 F.3d 870, 942 (9th Cir. 2007). 5 Defendants do not dispute that Mr. Gilbertson has “specialized knowledge” regarding 6 police procedures. Fed. R. Ev. 702.1 Rather, defendant maintains that Mr. Gilbertson’s opinions 7 are irrelevant, are not reliable, constitute legal conclusions, and/or invade the province of the 8 jury. Mr. Gilbertson intends to offer the following opinions: 9 (1) Officer Hilton knew or should have known that plaintiff and his companions did not meet the descriptions of the suspects provided by the victim and should 10 therefore not have initiated a felony traffic stop. Dkt. # 52-1 at ¶ 25. 11 (2) Officer Hilton knew or should have known immediately upon making contact 12 with plaintiff that he was not the suspect described by the victim and should 13 therefore have immediately terminated the felony traffic stop protocols. Dkt. # 52- 1 at ¶¶ 26-27 and 32. 14 15 (3) He “adamantly disagrees” with the Office of Professional Accountability’s findings regarding what Officer Hilton could and could not see while observing 16 plaintiff’s car and sincerely and truly believes that the OPA’s reasonable suspicion finding was erroneous. Dkt. # 52-1 at ¶¶ 34 and 39. 17 18 (4) “Nothing about Eddie Tate other than his race and car color supports Officer Hilton’s claim of Reasonable Suspicion to conduct a Felony Traffic Stop, seize at 19 gunpoint, detain, and investigate him and his companions for the crimes committed 20 against Monty Richardson.” Dkt. # 52-1 at ¶ 35. Officer Hilton and Officer Smith did not have reasonable suspicion for their actions but were rather “acting on a 21 hunch or guess when they stopped Eddie Tate.” Dkt. # 52-1 at ¶ 40. 22 (5) At least two “Use of Force Reports” should have been filed regarding this 23 incident. Dkt. # 52-1 at ¶ 37. 24 25 26 1 In fact, defendants rely on some aspects of Mr. Gilbertson’s testimony in support of their motion for summary judgment. See, e.g., Dkt. # 24 at 7. 1 (6) Pointing firearms at plaintiff was unnecessary and excessive given the totality of the circumstances surrounding the traffic stop. Dkt. # 52-1 at ¶ 41. 2 3 (7) Officer Smith knew or should have known that plaintiff was wearing an orthopedic brace and should have inquired as to its purpose and meaning or 4 foregone the attempt to handcuff plaintiff. Dkt. # 52-1 at ¶ 42. 5 Statements regarding what Officer Hilton knew or should have known at the time of the traffic 6 stop and whether Officer Smith knew or should have realized that plaintiff was wearing an 7 orthopedic brace are, in this case, merely statements of fact for which no scientific, technical or 8 other specialized knowledge is necessary. Mr. Gilbertson does not appear to have any 9 specialized knowledge or expertise in evaluating video evidence, determining the credibility of 10 witnesses, or discussing orthopedic devices and their import that would assist the jury in 11 determining the Officers’ state of mind at the time of their interactions with plaintiff. Mr. 12 Gilbertson will not be permitted to testify regarding the first, second, and seventh matters 13 described above. 14 Defendants point out, and plaintiff does not dispute, that Mr. Gilbertson’s criticisms of 15 the OPA investigation and findings are irrelevant to the issues in this litigation. Similarly, 16 whether the officers involved in the events at issue subsequently filed Use of Force Reports does 17 not prove or disprove any of plaintiff’s claims or defendants’ defenses. The third and fifth 18 opinions described above are therefore inadmissible. 19 Expert testimony regarding whether the totality of the circumstances with which an 20 officer was presented gave rise to a reasonable suspicion that plaintiff had engaged, is engaging, 21 or is about to engage in criminal conduct may sometimes be appropriate. Such testimony may 22 help the jury understand how an officer is trained to recognize and respond to situations, for 23 example, or why certain articulable facts suggest possible criminal activity or, on the other hand, 24 innocence. In this case, however, Mr. Gilbertson intends to tell the jury that Officer Hilton’s 25 suspicion was not reasonable because it was based solely on plaintiff’s race and the color of his 26 1 car. This is simply not true. Other facts, such as the location of plaintiff’s vehicle, the direction 2 in which it was headed when the victim lost sight of it and when Officer Hilton encountered it, 3 the temporal connection between those two events, and the number of people Officer Hilton 4 observed arguably supported his suspicion that one of the inhabitants of plaintiff’s car had 5 assaulted and robbed the victim earlier in the day. Mr. Gilbert focuses on only two facts in order 6 to opine that Officer Hilton2 acted on a hunch or guess. Federal Rule of Evidence 702 makes 7 expert testimony admissible if, among other things, it “is based upon sufficient facts or data.” An 8 expert need not know and consider every relevant fact before his testimony will be admitted: 9 “[s]haky but admissible evidence is to be attacked by cross examination, contrary evidence, and 10 attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 11 2010). But where, as here, the expert has concluded that a party’s conduct was unjustified by 12 ignoring evidence that is significant in both amount and relevance, his conclusion falls outside 13 the realm of reliability and should not be presented to the jury. 14 Mr. Gilbertson’s opinion that pointing firearms at plaintiff during the traffic stop was 15 excessive is based on “the totality of the circumstances these officers encountered.” Dkt. # 52-1 16 at 19. While Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 EDDIE TATE, NO. C18-0141RSL 8 Plaintiff, 9 v. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO 10 TRE SMITH, et al., EXCLUDE THE OPINION OF GREGORY GILBERTSON 11 Defendants. 12 13 This matter comes before the Court on defendants’ “Motion to Exclude the Opinion of 14 Gregory Gilbertson.” Dkt. # 32. In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), 15 the Supreme Court charged trial judges with the responsibility of acting as gatekeepers to 16 prevent unreliable expert testimony from reaching the jury. The gatekeeping function applies to 17 all expert testimony, not just testimony based on the hard sciences. Kumho Tire Co. v. 18 Carmichael, 526 U.S. 137 (1999). 19 To be admissible, expert testimony must be both reliable and helpful. The reliability of 20 expert testimony is judged not on the substance of the opinions offered, but on the methods 21 employed in developing those opinions. Daubert, 509 U.S. at 594-95. In general, the expert’s 22 opinion must be based on principles, techniques, or theories that are generally accepted in his or 23 her profession and must reflect something more than subjective belief and/or unsupported 24 speculation. Daubert, 509 U.S. at 590. The testimony must also be “helpful” in that it must go 25 “beyond the common knowledge of the average layperson” (U.S. v. Finley, 301 F.3d 1000, 1007 26 1 (9th Cir. 2002)) and it must have a valid connection between the opinion offered and the issues 2 of the case (Daubert, 509 U.S. at 591-92). Plaintiff, as the party offering Mr. Gilbertson as an 3 expert, has the burden of proving both the reliability and helpfulness of his testimony. Cooper v. 4 Brown, 510 F.3d 870, 942 (9th Cir. 2007). 5 Defendants do not dispute that Mr. Gilbertson has “specialized knowledge” regarding 6 police procedures. Fed. R. Ev. 702.1 Rather, defendant maintains that Mr. Gilbertson’s opinions 7 are irrelevant, are not reliable, constitute legal conclusions, and/or invade the province of the 8 jury. Mr. Gilbertson intends to offer the following opinions: 9 (1) Officer Hilton knew or should have known that plaintiff and his companions did not meet the descriptions of the suspects provided by the victim and should 10 therefore not have initiated a felony traffic stop. Dkt. # 52-1 at ¶ 25. 11 (2) Officer Hilton knew or should have known immediately upon making contact 12 with plaintiff that he was not the suspect described by the victim and should 13 therefore have immediately terminated the felony traffic stop protocols. Dkt. # 52- 1 at ¶¶ 26-27 and 32. 14 15 (3) He “adamantly disagrees” with the Office of Professional Accountability’s findings regarding what Officer Hilton could and could not see while observing 16 plaintiff’s car and sincerely and truly believes that the OPA’s reasonable suspicion finding was erroneous. Dkt. # 52-1 at ¶¶ 34 and 39. 17 18 (4) “Nothing about Eddie Tate other than his race and car color supports Officer Hilton’s claim of Reasonable Suspicion to conduct a Felony Traffic Stop, seize at 19 gunpoint, detain, and investigate him and his companions for the crimes committed 20 against Monty Richardson.” Dkt. # 52-1 at ¶ 35. Officer Hilton and Officer Smith did not have reasonable suspicion for their actions but were rather “acting on a 21 hunch or guess when they stopped Eddie Tate.” Dkt. # 52-1 at ¶ 40. 22 (5) At least two “Use of Force Reports” should have been filed regarding this 23 incident. Dkt. # 52-1 at ¶ 37. 24 25 26 1 In fact, defendants rely on some aspects of Mr. Gilbertson’s testimony in support of their motion for summary judgment. See, e.g., Dkt. # 24 at 7. 1 (6) Pointing firearms at plaintiff was unnecessary and excessive given the totality of the circumstances surrounding the traffic stop. Dkt. # 52-1 at ¶ 41. 2 3 (7) Officer Smith knew or should have known that plaintiff was wearing an orthopedic brace and should have inquired as to its purpose and meaning or 4 foregone the attempt to handcuff plaintiff. Dkt. # 52-1 at ¶ 42. 5 Statements regarding what Officer Hilton knew or should have known at the time of the traffic 6 stop and whether Officer Smith knew or should have realized that plaintiff was wearing an 7 orthopedic brace are, in this case, merely statements of fact for which no scientific, technical or 8 other specialized knowledge is necessary. Mr. Gilbertson does not appear to have any 9 specialized knowledge or expertise in evaluating video evidence, determining the credibility of 10 witnesses, or discussing orthopedic devices and their import that would assist the jury in 11 determining the Officers’ state of mind at the time of their interactions with plaintiff. Mr. 12 Gilbertson will not be permitted to testify regarding the first, second, and seventh matters 13 described above. 14 Defendants point out, and plaintiff does not dispute, that Mr. Gilbertson’s criticisms of 15 the OPA investigation and findings are irrelevant to the issues in this litigation. Similarly, 16 whether the officers involved in the events at issue subsequently filed Use of Force Reports does 17 not prove or disprove any of plaintiff’s claims or defendants’ defenses. The third and fifth 18 opinions described above are therefore inadmissible. 19 Expert testimony regarding whether the totality of the circumstances with which an 20 officer was presented gave rise to a reasonable suspicion that plaintiff had engaged, is engaging, 21 or is about to engage in criminal conduct may sometimes be appropriate. Such testimony may 22 help the jury understand how an officer is trained to recognize and respond to situations, for 23 example, or why certain articulable facts suggest possible criminal activity or, on the other hand, 24 innocence. In this case, however, Mr. Gilbertson intends to tell the jury that Officer Hilton’s 25 suspicion was not reasonable because it was based solely on plaintiff’s race and the color of his 26 1 car. This is simply not true. Other facts, such as the location of plaintiff’s vehicle, the direction 2 in which it was headed when the victim lost sight of it and when Officer Hilton encountered it, 3 the temporal connection between those two events, and the number of people Officer Hilton 4 observed arguably supported his suspicion that one of the inhabitants of plaintiff’s car had 5 assaulted and robbed the victim earlier in the day. Mr. Gilbert focuses on only two facts in order 6 to opine that Officer Hilton2 acted on a hunch or guess. Federal Rule of Evidence 702 makes 7 expert testimony admissible if, among other things, it “is based upon sufficient facts or data.” An 8 expert need not know and consider every relevant fact before his testimony will be admitted: 9 “[s]haky but admissible evidence is to be attacked by cross examination, contrary evidence, and 10 attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 11 2010). But where, as here, the expert has concluded that a party’s conduct was unjustified by 12 ignoring evidence that is significant in both amount and relevance, his conclusion falls outside 13 the realm of reliability and should not be presented to the jury. 14 Mr. Gilbertson’s opinion that pointing firearms at plaintiff during the traffic stop was 15 excessive is based on “the totality of the circumstances these officers encountered.” Dkt. # 52-1 16 at 19. While Mr. Gilbertson does not describe the relevant circumstances, it appears that his 17 opinion is based on his conviction that there were not enough specific, objective, articulable 18 facts to give rise to a reasonable suspicion that plaintiff was the armed subject for whom the 19 officers were looking. Thus, his opinion is essentially that, in the absence of reasonable 20 suspicion to believe plaintiff had engaged in criminal activity, the show of force in this case was 21 unreasonable and unnecessary. As such, the opinion is admissible and subject to cross- 22 examination. At his deposition, Mr. Gilbertson acknowledged that if a felony traffic stop is 23 initiated on reasonable suspicion, it “is almost always going to involve weapons, if not the 24 25 2 Mr. Gilbertson’s opinion that Officer Smith acted on a hunch or guess when he stopped plaintiff is unsupported by any facts in the record. Officer Smith was not involved in the decision to 26 conduct a felony traffic stop. 1 display - at least the display of weapons, if not pointing the weapons at people because you 2 believe that the person that you’re stopping poses an imminent threat to you or to others based 3 upon, again, all the information that you have.” Dkt. # 33-1 at 257-58. 4 5 For all of the foregoing reasons, defendants’ motion to exclude the expert testimony of 6 Gregory Gilbertson is GRANTED in part and DENIED in part. 7 8 Dated this 2nd day of March, 2020. A 9 Robert S. Lasnik 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26