United States District Court, D. New Jersey
BARSOUM S. ISRAEL, Plaintiff,
LIEUTENANT DEAN R. SMITH, el. al, Defendants.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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) Monellliability 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.
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).
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.
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).
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.
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).
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.
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.
First Opinion criticizes Lt. Smith for his poor judgment in
stopping Israel's motor vehicle at this exact location.
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).
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.
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 ...