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Sloan v. Long

United States District Court, E.D. Missouri, Eastern Division

March 9, 2018

JESSICA A. SLOAN, Plaintiff,
v.
DEPUTY GREG LONG, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on defendant's motion to exclude the testimony of plaintiff's expert witness, Michael D. Lyman, Ph.D. Plaintiff has filed a response in opposition to the motion and the issues are fully briefed.

         In this 42 U.S.C. § 1983 action, plaintiff Jessica Sloan brings a claim that defendant Deputy Greg Long used unconstitutionally excessive force by deploying his Taser against her in the course of her arrest. Plaintiff voluntarily dismissed her claims for denial of medical care, municipal liability and violation of state law, and all claims against Phelps County and Sheriff Richard Lisenbe. [Docs. # 31 & # 41]. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

         I. Facts[1]

         A. The Arrest

         On January 23, 2011, Deputy Carl Kossuth responded to a burglary report. He observed footprints leading from the complainant's home to the trailer shared by plaintiff and Gary Gallamore. Deputy Kossuth entered the trailer and spoke with Gallamore, who confirmed that he and plaintiff had taken several items from their neighbor. Deputy Christian Butler and defendant Long arrived at the trailer to provide assistance and Deputy Kossuth went to the neighbor's home, leaving Butler and Long to complete the arrests of plaintiff and Gallamore. See Lyman Expert Report (citing official reports from Kossuth and defendant Long) [Doc. # 43-2 at 4].

         The circumstances leading up to defendant Long's use of the Taser are disputed. In the complaint, plaintiff alleges that Deputy Kossuth placed her left wrist in handcuffs but did not cuff her right wrist. She claims that, after Kossuth left, she was sitting on the floor gathering together some stolen DVDs. She attempted to rise to her feet, with the assistance of Deputy Butler. At that moment, defendant Long entered the room and deployed his Taser without warning. Plaintiff alleges that she had a seizure and lost consciousness when she was Tased. She also alleges that while she was unconscious, defendant Long handcuffed her, lifted her upright, and transported her to a waiting ambulance, causing her to sustain a broken collarbone and injuries to her head, left foot, and left ankle. Complaint at ¶¶ 23, 26-29, 34-36 [Doc. # 1].

         By contrast, defendant Long reported that plaintiff became verbally aggressive with Deputy Butler. Butler told her to stand up and place her hands behind her back, which she did. According to defendant Long, as soon as Deputy Butler placed one cuff on her, plaintiff pulled away, made a closed fist, and raised it as though she were going to strike Butler. Defendant Long, believing that Deputy Butler had not seen plaintiff's movement, deployed his Taser to prevent her from hitting Butler. Expert Report at 5. Defendant Long reported that plaintiff was verbal after she was Tased, and complied with his instruction to place her hands behind her back and walked to the patrol car with his assistance. Id. He called for an ambulance to transport her to the Phelps County Regional Medical Center to remove the Taser probes. Id. Plaintiff was declared fit for confinement after the probes were removed and she was transported to the Phelps County Jail. During her confinement, plaintiff complained of shoulder pain and, on January 26, 2011, it was determined that she had a broken clavicle. Complaint at ¶¶ 46, 57, 59.

         Plaintiff pleaded guilty to second-degree burglary. She was not charged with resisting arrest or assaulting a police officer. Id. at ¶¶ 62-64. The Phelps County prosecutor noted, “She got tased . . . She was punished for being noncompliant. Had she actually struck Chris [Butler], I would've put her in prison.” Expert Report at 11 (quoting Notice of Case Disposition).

         B. Plaintiff's Expert

         Plaintiff retained Dr. Lyman as an expert in law enforcement policy and practices. See Expert Disclosure [Doc. # 43-1]. His report and deposition have been provided to the Court. Expert Report [Doc. # 43-2]; Deposition [Doc. # 43-3]. Dr. Lyman has been a college professor teaching and researching in the area of policing for over 30 years, and has authored numerous articles and books dealing with different aspects of police operations. Prior to becoming an educator, he was a certified generalist police instructor for three years and a criminal investigator for eleven years. Expert Report at 2. He was certified by Taser International to be an instructor on using the Taser. Dep. at 27. Defendant does not contest Dr. Lyman's qualifications to testify as an expert in police practices.

         Dr. Lyman evaluated defendant Long's conduct under the “objectively reasonable” standard set forth in Graham v. Connor, 490 U.S. 396 (1989), and professional policing guidelines established by the International Association of Chiefs of Police (IACP). Report at 7-8. Based on his review of the police reports, Dr. Lyman opined that that there was evidence that plaintiff was compliant, that other viable force options were available to defendant Long, that “empty-handed control techniques” would have been effective, and that defendant should have given plaintiff a verbal warning before using the Taser. Report at 10-12. Dr. Lyman further opined that defendant Long's use of the Taser against plaintiff was “unnecessary, punitive and served no objectively reasonable purpose, ” and that the prosecutor's note is evidence that defendant Long had subjective, punitive motives for deploying his Taser. Id. at 11-12. In addition, Dr. Lyman stated that the deputies departed from nationally recognized standards for controlling suspects, including handcuffing techniques. Id. at 10. Dr. Lyman's deposition testimony was consistent with his written report.

         II. Legal Standard

         Federal Rule of Evidence 702 permits a qualified expert to give opinion testimony if the expert's specialized knowledge would allow the jury to better understand the evidence or decide a fact in issue. Lee v. Andersen, 616 F.3d 803, 808 (8th Cir. 2010). Under Rule 702, the district courts act as “gatekeepers, ” admitting expert testimony only if it is both relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) (scientific expert testimony); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (extending Daubert to all expert testimony). “The touchstone for the admissibility of expert testimony is whether it will assist or be helpful to the trier of fact.” Lee, 616 F.3d at 808 (quoting McKnight By & Through Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1408 (8th Cir. 1994)). The district court's “gatekeeper role should not . . . invade the province of the jury, whose job it is to decide issues of credibility and to determine the weight that should be accorded evidence.” United States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003). “[D]oubts regarding whether an expert's testimony will be useful should generally be resolved in favor of admissibility.” United States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (citation omitted). As long as an expert's ...


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