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Israel v. Smith

United States District Court, D. New Jersey

April 16, 2018

BARSOUM S. ISRAEL, Plaintiff,
v.
LIEUTENANT DEAN R. SMITH, el. al, Defendants.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter is before the Court on Defendants Township of Freehold, Chief Ernest Schrieber, and Lieutenant Dean Smith's motion in limine to preclude the expert opinion of Ken E. Williams, Plaintiff Barsoum S. Israel's expert, as impermissible net opinion. (ECF No. 91). The presumed purpose of Williams's testimony is threefold, to establish: (1) Monell[1]liability against Township of Freehold; (2) that Lt. Smith used excessive force against Plaintiff; and (3) that Lt. Smith used excessive force against Plaintiffs wife, Isis Korashy, who is not a plaintiff. Defendants' motion seeks to exclude all of Williams's eight opinions, contending that each constitutes impermissible net opinion.

         Because Williams's report was prepared prior to the Court's Summary Judgment Opinion, a number of his opinions are no longer relevant for purposes of trial. At Summary Judgment, the Court dismissed Plaintiffs Monell claims since: (1) there was no plausible nexus between the municipality's alleged failure to preserve video surveillance and Plaintiffs injuries; (2) Lt. George Baumann's failure to conduct an internal affairs investigation into use of force complaints was not causally related to Plaintiffs injuries; and (3) no facts were presented that Lt. Smith received inadequate training. See Israel v. Smith, No. 13-0097, 2017 U.S. Dist. LEXIS 194241, at *8-13 (D.N.J. Nov. 27, 2017). Additionally, in a written decision, Magistrate Goodman denied Plaintiffs motion to add Mrs. Korashy as a plaintiff in this matter. (ECF No. 23).

         Legal Standard

         "Under the Federal Rules of Evidence, a trial judge acts as a 'gatekeeper' to ensure that 'any and all expert testimony or evidence is not only relevant, but also reliable.'" Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (quoting Kannankeril v. Terminix Int 7, Inc., 128 F.3d 802, 806 (3d Cir. 1997)). When faced with a proffer of expert testimony under Federal Rule of Evidence 702, "the trial judge must determine at the outset... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert v. Merrell-Dow Pharms., Inc., 509 U.S. 579, 592 (1993). "Rule 702 has three major requirements: (1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge; and (3) the expert's testimony must assist the trier of fact." Pineda, 520 F.3d at 244.

         Both parties agree that Mr. Williams is qualified to testify as an expert. Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994).

         Next, the proffered testimony must be reliable; that is, "the expert's opinion must be based on the 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation'; the expert must have 'good grounds' for his or her belief." Id. at 742 (quoting Daubert, 509 U.S. at 590). "[S]o long as the process or technique the expert used in formulating the opinion is reliable, " such testimony will be deemed admissible. Id. Nevertheless, the Third Circuit has set forth a non-exhaustive list of factors for the court to consider when determining the reliability of the proffered testimony. See Pineda, 520 F.3d at 247-48.

         "Finally, Rule 702 requires that the expert testimony must fit the issues in the case;" that is, "the expert's testimony must be relevant for the purposes of the case and must assist the trier of fact." Schneider, 320 F.3d at 404. "In assessing whether an expert's proposed testimony 'fits, ' we are asking 'whether [the] expert testimony proffered ... is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.'" United States v. Schiff, 602 F.3d 152, 173 (3d Cir. 2010) (citing Daubert, 509 U.S. at 591).

         Discussion

         Defendants seek to preclude all eight of his opinions as inadmissible net opinion. Plaintiff responds that Williams's opinions are based record evidence and applicable case-law, negating Defendants' net-opinion arguments.

         The net opinion rule renders "an expert's bare conclusions, unsupported by factual evidence" inadmissible. May v. Atlantic City Hilton, 128 F.Supp.2d 195, 198 (D.N.J. 2000). "The rule frequently focuses on the failure of the expert to explain a causal connection between the act complained of and the injury allegedly resulting therefrom." Id.; see also Zeller v. J.C. Penney Co., No. 05-2546, 2008 U.S. Dist. LEXIS, at *22 n.13 (D.N.J. Mar. 31, 2008) ("[T]he net opinion rule is merely a restatement of the well-settled principle that an expert's bare conclusions are not admissible under Rule 702 of the Federal Rules of Evidence."). "To be admissible as evidence, the expert's opinion must be based on standards accepted by the legal community and not merely on the expert's personal opinion." Stoeckel v. Twp. of Knowlton, 902 A.2d 930, 938 (N.J. Sup. Ct. App. Div. 2006). Expert opinions will be stricken as net opinions where they have failed "to give the why and wherefore of their opinion, and have provided a mere conclusion." Jimenez v. GNOC Corp., 670 A.2d 24, 27 (N.J. Sup. Ct. App. Div. 1996). This analysis is appropriate when considering whether the opinion will be of "assistance to the trier of fact." Atlantic City Hilton, 128 F.Supp.2d at 198-99. Against this backdrop, the Court next considers each of Williams's proffered opinions.

         Opinion No. 1

         Williams's First Opinion criticizes Lt. Smith for his poor judgment in stopping Israel's motor vehicle at this exact location. Williams states:

         Lt. Smith conducted a valid traffic stop but due to the snow banks on the road, Lt. Smith used poor judgment to initiate the stop at this specific location on Rt. 537 which does not have a shoulder, whereas the Freehold Mall was nearby. Lt. Smith should have followed Mr. Israel, radioed in his handicap license plate to dispatch, received a status report and once closer to the Freehold Mall he should have initiated his stop in a safer location removed from Rt. 537; which, again, does not have a shoulder. Despite the location of the stop creating a hazard, Lt. Smith stopped Mr. Israel in the travel lane.

(Williams Report at 4).

         Defendants argue the opinion has little to do with the excessive force claim and is irrelevant. Under Rule 401, evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." Fed.R.Evid. 401(a). Here, whether Lt. Smith erred in stopping Israel's car at this location does not address the issue at hand, whether Lt. Smith used excessive force. There is nothing in the Opinion that relates the location of the stop to the use of excessive force. This Opinion is not relevant to the claim. As such, Opinion One is precluded.

         Opinion No. 2

         Williams's Second Opinion concludes that Lt. Smith violated state law by failing to use the "broken record" strategy when he interacted with Mrs. Korashy, and Lt. Smith "snapped" in his demeanor. Specifically, Defendants contend, "not only is this [opinion] irrelevant as Ms. Korashy is not a plaintiff in this matter, but Mr. Williams fails to cite the source of this 'strategy' and how deviation from this strategy supports a cause of ...


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