Experts are professionally and ethically bound to limit opinions to their own area of expertise.  Despite this clear demarcation, some experts purposely exceed those limits, often to the detriment of their client.  The recent federal court case of Pettit v. Hill, 2018 WL 4100705, 107 Fed. R. Evid. Serv. 390 (United States District Court, W.D. Oklahoma) is yet another example of this recurring problem.  

The Facts

The plaintiff’s son was shot and killed by the defendant police officer.  The plaintiff filed a civil action against the officer alleging that he violated the civil rights of his son.  The plaintiff sought to call as his sole expert a man named James K. Appleton.  The defendant filed a motion to exclude Mr. Appleton as an expert in the case.  The Court evaluated the proposed evidence of Mr. Appleton and ruled on the motion.

Mr. Appleton was described by the Court as a consultant specializing in audio and video analysis and enhancement.  The defendant was unable to depose Mr. Appleton and so the Court’s opinion was mostly based on the report filed by Mr. Appleton, in which he offered the following opinions:

1. CJ [plaintiff’s son] did not point a gun at the officer at any point during the video.

2. When the officer first encountered CJ, CJ was in a submissive non-threating [sic] pose with both hands in the air as reflected on still image extracted and attached hereto as Exhibit A. [Exhibit A was not provided to the defendant]

3. In my expert opinion, nothing in the video confirms the official account of the shooting because at no point does the video depict CJ holding a gun as was reported by the Midwest Police.

4. After the initial encounter, CJ turned his back to the officer in an attempt to flee or retreat and at this point, Officer Hill can be seen in the video, grabbing his weapon and shooting CJ for the first time at 4:00:40 on October 5, 2015 in the back.

5. You have not been given a true and accurate copy of the squad car video. As noted above, the video you were provided by the Midwest Police Department was intentionally exported with no audio or the prior exported file was stripped of its audio.

6. From a review of the video, it appears that CJ did not have a gun but it was in his pants or pocket on the right side of his back. At no time did CJ pull this weapon. After being shot, CJ fell forward to the ground and the weapon depicted fell onto the street and was later kicked by another officer.

7. The video was exported at least four (4) times ….

The Law

Federal Rule of Evidence 702 governs the admissibility of expert testimony based upon scientific, technical or other specialized knowledge and provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

The Court was accordingly required to determine whether Mr. Appleton was qualified and whether his opinions fell within his area of expertise.  If the witness is qualified, then the Court must determine whether his expert opinions are reliable, as required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  Citing the relevant law, the Court stated:

…In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999), the Supreme Court concluded that “Daubert’s general holding – setting forth the trial judge’s general ‘gatekeeping’ obligation – applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” 526 U.S. at 141. With respect to the all-important reliability determination, the Supreme Court further concluded that “a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability. But, as the Court stated in Daubert, the test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Id. (emphasis in original).

The “Daubert factors” that may be considered in assessing the reliability of proposed expert testimony are: (1) whether the theory or technique employed by the expert in formulating his expert opinion can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error; (4) whether standards control operation of the technique; and (5) whether the theory or technique is generally accepted within the relevant professional community. See id. at 149-50 (quoting Daubert, 509 U.S. at 592-94). In Kumho Tire, the Court recognized that, in some cases, “the relevant reliability concerns may focus upon personal knowledge or experience,” rather than scientific foundations. Id. at 150. In such cases, the trial court may focus on alternative factors that are better-suited to the specific type of expertise at issue. Id. at 150-52. “The objective of [the gatekeeping] requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152. “[T]he trial judge [has] considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Id.

Further, when expert testimony is challenged under Daubert, the burden of proof regarding admissibility rests with the party seeking to present the testimony. Truck Ins. Exch. v. Magnetek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). “The focus [of the inquiry] … must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. “However, an expert’s conclusions are not immune from scrutiny: A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (internal quotations and citation omitted). Additionally, “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

The Tenth Circuit has explained the appropriate analysis as follows: The plaintiff need not prove that the expert is undisputably correct or that the expert’s theory is ‘generally accepted’ in the scientific community. Instead, the plaintiff must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702’s reliability requirements.

Truck Ins. Exch., 360 F.3d at 1210 (quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999)).

The defendant argued that Mr. Appleton’s opinions exceed his qualifications, that he did nothing to assess the reliability and correctness of his opinions and that his opinions invade the province of the jury.  The plaintiff argued that Mr. Appleton’s opinions were based upon his thirty years of technical experience and that he was highly skilled in determining whether an individual moved in a threatening or aggressive manner and the level of force utilized.

The Ruling

After considering Mr. Appleton’s report, the submissions of counsel and the law, the Court ruled that the report and proposed testimony of Mr. Appleton must be excluded.  The Court found:

Specifically, the Court finds that Mr. Appleton is not qualified to offer any opinions regarding the use of force in this case, including the extent of force used, whether the use of force was reasonable, and whether an individual moved in a threatening/aggressive manner. The Court finds that Mr. Appleton does not have the requisite knowledge, skill, experience, training, or education in the area of use of force to be qualified as an expert. Further, the Court finds that simply analyzing video for law enforcement would not provide the needed knowledge, skill, experience, training, or education to render such opinions.

Additionally, the Court finds that any opinions proffered by Mr. Appleton as to what is shown on the DashCam video are not proper expert opinions, as such opinions invade the province of the jury. Mr. Appleton’s opinions as to what the video shows will not help the jury to understand the evidence or to determine a fact in issue. It is the province of the jury in this case to determine what the DashCam video shows. The Court finds that the jury will be capable of making such a determination by watching the video, as well as any enlargements or slower speed versions of the video or portions thereof.

Finally, the Court finds that any opinions regarding whether plaintiff’s counsel was given a true and accurate copy of the DashCam video and the number of times the video was exported should be excluded. Specifically, the Court finds that plaintiff has not shown that these opinions are based on sufficient facts or data and are the product of reliable principles and methods, or that Mr. Appleton has reliably applied the principles and methods to the facts of the case. In his report, Mr. Appleton provides no information or explanation as to how he reached these opinions.

Analysis

Occasionally, experts who are qualified in a specific area of expertise and who are retained to apply that expertise to a specific case provide an opinion that exceeds their area and level of expertise.  There can be numerous explanations for why this might occur, including experts incorrectly believing they are qualified to opine on a second area of expertise; experts wishing to please their clients by doing all of the requested work in-house; and failing to recognize where the line is and thus straying beyond their area of expertise without sufficient reflection.  It is not a weakness to recognize that a second expert must be retained to assist in a case.  In fact, it is in the client’s best interests that this issue be raised as soon as it becomes apparent.  To use a medical analogy, when a patient sees his/her general practitioner to discuss a medical concern and the GP refers the patient to a specialist, the GP is acting in the best interests of the patient.  Rather than offering an opinion that is not fully informed, the GP knows that a specialist will have the expertise required to properly diagnose, advise and treat the patient.  Forensic work is no different.  

If an expert provides an opinion that exceeds his/her qualifications and the opinion is excluded by the court as a result, as happened in Pettit v. Hill, it is the client who suffers.  The client has retained the expert, entrusted him/her to evaluate the case and provide a competent and defensible opinion and has been billed for that work.  The client is entitled to a thoughtful, responsible and ethical response.  Just as a GP should refer a patient to a specialist who is better qualified to handle the matter, so too must an expert know when to advise his/her client that a second expert ought to be consulted.

The Court in Pettit v. Hill did not say that the expert was wrong.  Mr. Appleton may in fact have been correct.  The problem is that it was not his role to provide that opinion.  The Court requires expert opinions to be proffered by properly qualified experts who abide by their professional limits and the client is entitled to that consideration as well.