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Janet Feliciano v. City of Miami Beach

February 22, 2012

JANET FELICIANO, PLAINTIFF,
v.
CITY OF MIAMI BEACH, A MUNICIPAL ENTITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John J. O'sullivan United States Magistrate Judge

ORDER

THIS MATTER is before the Court on the Defendants, Robert Acosta, Andrew Dohler, Douglas Dozier, James Nash, and the City of Miami Beach's Motion in Limine to Exclude Plaintiff's Police Expert from Rendering Any Opinion or Testifying at Trial (DE# 116, 11/15/11).*fn1 This matter was referred to the undersigned by the Honorable Joan A. Lenard pursuant to 28 U.S.C. § 636(b). See Order of Reference (DE# 144, 12/29/11). For the reasons stated herein, it is

ORDERED AND ADJUDGED that the Defendants, Robert Acosta, Andrew Dohler, Douglas Dozier, James Nash, and the City of Miami Beach's Motion in Limine to Exclude Plaintiff's Police Expert from Rendering Any Opinion or Testifying at Trial (DE# 116, 11/15/11) is GRANTED in part and DENIED in part. The plaintiff's police practices expert, Phillip B. Sweeting, is precluded from rendering an opinion at trial on the defendant City of Miami Beach's deliberate indifference to the rights of citizens and the existence of a custom and practice of excessive force. Mr. Sweeting is permitted to testify on the use of force.

BACKGROUND

On November 15, 2011, the defendants filed the instant motion. See Defendants, Robert Acosta, Andrew Dohler, Douglas Dozier, James Nash, and the City of Miami Beach's Motion in Limine to Exclude Plaintiff's Police Expert from Rendering Any Opinion or Testifying at Trial (DE# 116, 11/15/11) (hereinafter "Motion"). The plaintiff filed her response on December 3, 2011. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion in Limine to Exclude Plaintiff's Police Expert (DE# 135, 12/3/11) (hereinafter "Response"). The defendants filed their reply on December 15, 2011. See Defendants, Robert Acosta, Andrew Dohler, Douglas Dozier, James Nash, and the City of Miami Beach's Reply in Support of Their Motion in Limine to Exclude Plaintiff's Police Expert (DE# 142, 12/15/11) (hereinafter "Reply"). This matter is ripe for consideration.

The defendants seek to preclude Phillip B. Sweeting, the plaintiff's police practices expert, from rendering any opinions in this case. See Motion (DE# 116 at 1, 11/15/11). A review of Mr. Sweeting's expert report shows that he arrived at two opinions concerning the instant case:

(1) By the City of Miami Beach Police Department's failure to aggressively investigate complaints of excessive force by ignoring evidence and justifying excessive force, they have created an environment where excessive force is an accepted practice. It is my opinion, within reasonable probability, that they have deliberate indifference to the rights of citizens and a custom and practice of excessive force; and

(2) within reasonable probability, that a reasonably well-trained and knowledgeable police officer confronted with similar facts would know or should have known that the entry into the apartment of Ms. Feliciano's apartment [sic] was unlawful, any subsequent search was unlawful and any use of force would be unlawful and excessive.

See Sweeting Report (DE# 135-2 at 22, 12/3/11) (emphasis in original). The defendants argue that: " [Mr.] Sweeting's expert report is marred by assumptions that were not supported by the uncontroverted evidence." Motion (DE# 116 at 1-2, 11/15/11) (footnote omitted). As such, the defendants seek to exclude Mr. Sweeting from rendering any opinion or testifying at trial. Id.

STANDARD OF REVIEW

"Federal Rule of Evidence 702, as explained by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.[, 509 U.S. 579 (1993)] and its progeny, controls determinations regarding the admissibility of expert testimony." City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (footnote and citation omitted). Under Daubert and Rule 702, the Court serves as a gatekeeper to the admission of scientific evidence. Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003) (citing Daubert, 509 U.S. 579, 589 (1993) and McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)); Rink v. Cheminova, 400 F.3d 1286, 1291 (11th Cir. 2005). To determine the admissibility of expert testimony under Rule 702, the Court must ascertain whether the following three requirements are met:

(1) [T]he expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated by Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand evidence or to determine a fact in issue.

Quiet Technology, 326 F.3d at 1340-41 (citing City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589) (other citation omitted). "The burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion, whether the proponent is the plaintiff or defendant in a civil suit, or the government or the accused in a criminal case." United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). The proponent must meet his or her burden by a preponderance of the evidence. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.1999) (stating that "[t]he burden of laying ...


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