United States District Court, E.D. Missouri, Eastern Division
JESSICA A. SLOAN, Plaintiff,
DEPUTY GREG LONG, Defendant.
MEMORANDUM AND ORDER
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE
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.
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).
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].
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].
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.
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).
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
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
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