United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Defendant's motions in
limine to exclude expert testimony from Geoffrey P. Alpert.
For the reasons set forth below, the Court denies the motion.
alleges that on that on August 25, 2015, he was awoken by
John Mauldin knocking on his door. Mr. Mauldin told Plaintiff
that he was there to repossess a vehicle. Plaintiff told him
to leave his property. Plaintiff asserts that Mr. Mauldin did
not present any paperwork or documentation, and that he
informed Mr. Mauldin that he did not have permission to
repossess Plaintiffs vehicle. At that time, Mr. Mauldin
called 911 and told the dispatcher that Plaintiff had pointed
a handgun at him. Plaintiff denies that he never pointed a
gun at Mr. Mauldin.
Mr. Mauldin was on the phone with 911 dispatch, Defendant,
who was then the Coroner for Dorchester County, South
Carolina, approached Mr. Mauldin, identified himself as the
Coroner, and offered to assist Mr. Mauldin with the
repossession. Mr. Mauldin told Defendant that Plaintiff had
pointed a gun at him. Plaintiff then left his house in his
vehicle, and the Defendant, in his official county vehicle,
followed the Plaintiff and activated his vehicle's blue
lights and siren. Plaintiff testified that when he stopped,
Defendant pointed his county-issued firearm at him and told
him to "get out of the car you little black mother
fucker." (Dkt. No. 44-4.) Police officers then arrived
on the scene. Officers directed Defendant to drop his weapon,
which he did after a delay of about 15 to 20 seconds.
(Id.) No parties were charged with any crime that
night. Ultimately, Defendant was charged with misconduct in
office and breach of the peace. He pleaded no contest to
breach of the peace and the misconduct in office charge was
dropped nolle prosequi.
October 27, 2015, Plaintiff filed the present action,
asserting claims under 42 U.S.C. § 1983 for wrongful
seizure and excessive force, and claims under South Carolina
law. Plaintiff subsequently abandoned his state law claims.
This matter is set for jury trial of Plaintiff s § 1983
claims beginning February 5, 2018. On November 11, 2016,
Plaintiff disclosed Patrick Gallagher as his expert witness.
Circumstances later made Mr. Gallagher unable to testify at
trial, so the Court permitted Plaintiff to identify Geoffrey
Alpert as an expert witness. Defendant has moved to exclude
Rules 104(a) and 702 of the Federal Rules of Evidence,
"the trial judge must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but
reliable." Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 589 (1993). Thus, the trial court
must ensure that (1) "the testimony is the product of
reliable principles and methods, " that (2) "the
expert has reliably applied the principles and methods to the
facts of the case, " and (3) that the "testimony is
based on sufficient facts or data." Fed.R.Evid.
7O2(b)-(d). "This entails a preliminary assessment of
whether the reasoning or methodology underlying the testimony
is scientifically valid, " Daubert, 509 U.S. at
592-93, and whether the expert has "faithfully appl[ied]
the methodology to facts, " Roche v. Lincoln Prop.
Co., 175 Fed.Appx. 597, 602 (4th Cir. 2006).
to be considered include "whether a theory or technique
. . . can be (and has been) tested, " "whether the
theory or technique has been subjected to peer review and
publication, " the "known or potential rate of
error, " the "existence and maintenance of
standards controlling the technique's operation, "
and whether the theory or technique has garnered
"general acceptance." Daubert, 509 U.S. at
593-94; accord United States v. Hassan, 742 F.3d
104, 130 (4th Cir. 2014). However, these factors are neither
definitive nor exhaustive, United States v. Fultz,
591 Fed.Appx. 226, 227 (4th Cir. 2015), cert,
denied, 135 S.Ct. 2370 (2015), and "merely
illustrate the types of factors that will bear on the
inquiry, " Hassan, 742 F.3d at 130. Courts have
also considered whether the "expert developed his
opinions expressly for the purposes of testifying, "
Wehling v. Sandoz Pharms. Corp., 162 F.3d 1158 (4th
Cir. 1998) (unpublished per curiam), or through
"research they have conducted independent of the
litigation, " Daubert v. Merrell Dow Pharm.,
Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (on remand),
and whether experts have "failed to meaningfully account
for ... literature at odds with their testimony, "
McEwen v. Bait. Wash. Med. Ctr. Inc., 404 Fed.Appx.
789, 791-92 (4th Cir. 2010). The Daubert standard
applies to non-scientific expert testimony as well. Kumho
Tire Co. v. Carmichael, 526 U.S. 137 (1999).
702 of the Federal Rules of Evidence also requires courts
"to verify that expert testimony is 'based on
sufficient facts or data.'" EEOC v.
Freeman, 778 F.3d 463, 472 (4th Cir. 2015) (quoting
Fed.R.Evid. 702(b)). The court may exclude an opinion if
"there is simply too great an analytical gap between the
data and the opinion offered." Id. "The
proponent of the [expert] testimony must establish its
admissibility by a preponderance of proof." Cooper
v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir.
Court is mindful that the Daubert inquiry involves
"two guiding, and sometimes competing, principles."
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261
(4th Cir. 1999). "On the one hand, . . . Rule 702 was
intended to liberalize the introduction of relevant expert
evidence, " id., and "the trial
court's role as a gatekeeper is not intended to serve as
a replacement for the adversary system, " United
States v. Stanley, 533 Fed.Appx. 325, 327 (4th Cir.
2013). On the other, "[b]ecause expert witnesses have
the potential to be both powerful and quite misleading, it is
crucial that the district court conduct a careful analysis
into the reliability of the expert's proposed
opinion." Fultz, 591 Fed.Appx. at 227.
moves to exclude Plaintiffs expert Geoffrey P. Alpert.
Professor Alpert is a professor of criminology at the
University of South Carolina. He has been a tenured professor
of criminology or sociology for approximately 37 years, and
was chair of the department of criminology at the University
of South Carolina from 2002 to 2007. He has testified in over
thirty cases since 2013. He has published numerous
peer-reviewed articles on police policies and the use of
force. He has been the monitor for the Consent Decree for the
New Orleans Police Department. (See Dkt. No. 104-1.)
case, Plaintiffs seek to offer an expert opinion Professor
Albert regarding generally accepted police policies and
procedures. Defendant argues Professor Alpert is not
qualified to offer such an opinion because he has no
expertise specific to the office of a coroner in South
Carolina or the Castle Doctrine. Defendant's arguments
are without merit. The peculiarities of the office of coroner
in South Carolina are not at issue in this case. What a
reasonable officer would do on the night of the incident is
at issue. Professor Alpert is manifestly qualified to offer
an expert opinion regarding the generally accepted practices
that help ...