Jenkins v. Bartlett

• Citation: 487 F.3d 482
• Decision Date: 23 April 2007
• Docket Number: No. 06-2495.,06-2495.
• Parties: Debra JENKINS, Mother, Special Administrator and Personal Representative of the Estate of Larry Jerome Jenkins, Estate of Larry Jerome Jenkins, Briana L. Jenkins-Benning, Decedent's Minor Child, et al., Plaintiffs-Appellants, v. Jon BARTLETT, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

487 F.3d 482

Debra JENKINS, Mother, Special Administrator and Personal Representative of the Estate of Larry Jerome Jenkins, Estate of Larry Jerome Jenkins, Briana L. Jenkins-Benning, Decedent's Minor Child, et al., Plaintiffs-Appellants, v. Jon BARTLETT, Defendant-Appellee.

No. 06-2495.

United States Court of Appeals, Seventh Circuit.

Argued December 8, 2006.

Decided April 23, 2007.

James D. Montgomery, Cochran, Cherry, Givens, Smith & Montgomery, Chicago, IL, Willie J. Nunnery (argued), Madison, WI, for Plaintiffs-Appellants.

Susan E. Lappen (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Debra Jenkins, on behalf of the estate of her son, Larry Jenkins, filed this action under 42 U.S.C. § 1983 against Jon Bartlett, a police officer in the Milwaukee Police Department ("MPD"). She alleged that Officer Bartlett had violated Mr. Jenkins' constitutional rights through the use of excessive force when he shot and killed Mr. Jenkins as he attempted to flee custody.¹ Ms. Jenkins also brought § 1983 claims against the City of Milwaukee ("City") and Arthur Jones, the Chief of the MPD at the time Mr. Jenkins was shot, under Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). She alleged that the City and Chief Jones were deliberately indifferent to Mr. Jenkins' constitutional rights in the training and supervision of Milwaukee police officers with respect to the use of deadly force on suspects in vehicles ("Monell claims"). The district court granted summary judgment in favor of the City and Chief Jones on Ms. Jenkins' Monell claims and, following a trial, a jury found that Officer Bartlett had not violated Mr. Jenkins' constitutional rights. Ms. Jenkins appeals the district court's grant of summary judgment in favor of the City and Chief Jones on her Monell claims. Ms. Jenkins also appeals two of the district court's evidentiary rulings. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I BACKGROUND

A.

On the night of September 19, 2002, Officer Bartlett was on duty with Officer Kurt Lacina. Officers Bartlett and Lacina stopped a black Jeep that they suspected of involvement in drug-related activity. As the officers approached, Mr. Jenkins exited the vehicle. Officer Bartlett searched him for weapons and decided to place him in the squad car while the officer completed his investigation. Before he could be secured in the car, Mr. Jenkins fled on foot and Officer Bartlett, also on foot, pursued him. After a one- to two-minute pursuit, Mr. Jenkins entered an occupied vehicle.

Believing that Mr. Jenkins was attempting to car-jack the vehicle, Officer Bartlett drew his service weapon and approached the vehicle from the front. Mr. Jenkins now was in the driver's seat behind the steering wheel. The vehicle moved toward Officer Bartlett and struck the officer. Accounts differ as to the speed at which the vehicle was traveling and whether the vehicle swerved to strike him. When the vehicle struck Officer Bartlett, he was thrown onto the vehicle's hood. Officer Bartlett then fired nine shots into the vehicle, seven of which struck Mr. Jenkins. Mr. Jenkins died of his wounds.

After the shooting, pursuant to MPD policy, Officer Bartlett was taken to MPD detective bureau headquarters, and an investigation was begun immediately by both the criminal and Internal Affairs divisions of MPD. As was department custom, Bradley DeBraska, the police liaison officer for the City and president of the Milwaukee Police Association, was contacted following the shooting. DeBraska and an attorney appointed by the police officers' association, Jonathan Cermele, met Officer Bartlett at MPD headquarters. Throughout the evening, DeBraska gathered information and advised Cermele as the attorney prepared to represent Officer Bartlett during his interview with Internal Affairs.

The results of the criminal investigation were sent to the Milwaukee County District Attorney's Office. The district attorney found no basis to file criminal charges against Officer Bartlett. The investigation by Internal Affairs concluded that Officer Bartlett had not violated any MPD policy in the course of the shooting.

B.

Ms. Jenkins then brought this action on behalf of Mr. Jenkins' estate. She alleged that Officer Bartlett's use of deadly force was excessive and had violated Mr. Jenkins' Fourth Amendment rights. She also alleged that the City and Chief Jones had exhibited deliberate indifference to Mr. Jenkins' constitutional rights by failing to train properly and to supervise MPD officers with respect to the exercise of deadly force on suspects in vehicles. She based this claim on MPD's alleged failure to train properly its officers according to MPD's own training bulletins for approaching and exercising deadly force on suspects in vehicles. She also pointed to past incidents in which MPD officers had used deadly force on suspects in vehicles.

As the case proceeded, the district court set November 1, 2003 as the deadline for Officer Bartlett, the City and Chief Jones (collectively, "defendants") to provide Ms. Jenkins the disclosures related to expert witnesses required by Rule 26(a)(2) of the Federal Rules of Civil Procedure.² On October 1, 2003, Susan Lappen, the attorney for the defendants, sent Ms. Jenkins' attorney a letter that identified the expert witnesses the defendants expected to call, their anticipated testimony and the bases for the opinions to which the experts would testify, including the autopsy protocol the defendants previously had provided to Ms. Jenkins. This letter identified Dr. Jeffrey Jentzen, the Milwaukee County Medical Examiner, and Dr. Mary Mainland, an Assistant Medical Examiner, as potential experts; these physicians had been involved in the autopsy of Mr. Jenkins and in a reconstruction of the shooting. Attached to the letter, Attorney Lappen included each physician's curriculum vitae. Neither physician signed the letter, but both subsequently provided sworn affidavits adopting the contents of the letter.

Ms. Jenkins objected to the proposed testimony of the physicians. She submitted that the defendants' disclosures did not satisfy Rule 26(a)(2)(B)'s requirement for an expert report. The objection did not specify the deficiencies of the disclosure. The district court denied the motion, noting that Ms. Jenkins had not stated the basis for her objection and that the physicians subsequently had adopted Lappen's letter by sworn affidavit that had cured any defect in the report.

The defendants then moved for summary judgment. The district court denied Officer Bartlett's motion for summary judgment based on the defense of qualified immunity: It held that genuine issues existed as to the reasonableness of the use of deadly force. The district court granted summary judgment in favor of the City and Chief Jones: It held that Ms. Jenkins had "failed to articulate any deficiency in the training of MPD officers" or in the inadequacy of investigations of prior incidents in which MPD officers had exercised deadly force on suspects in vehicles. R.99 at 13. After this order, only Officer Bartlett remained as a defendant.

Before trial, the judge originally assigned to the case, Judge Stadtmueller, was replaced by Judge Herndon. After Judge Herndon assumed responsibility for the case, Ms. Jenkins again moved to exclude the testimony of Dr. Mainland, again arguing that Lappen's October 1, 2003 letter did not "comply with the rules for an expert report" and added that Dr. Mainland's opinions were not "rationally based" and had "no relevance other than being highly suggestive." R.125 at 5-6. Judge Herndon denied the motion, noting that Ms. Jenkins had not shown any cause to disturb Judge Stadtmueller's earlier decision. At trial, Ms. Jenkins again attempted to exclude Dr. Mainland's testimony. She contended that the basis for Dr. Mainland's proposed opinion testimony about the position in which Mr. Jenkins was sitting when he was shot did not satisfy the standard of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), for reliability of expert testimony. The district court denied Ms. Jenkins' motion.

Ms. Jenkins also sought to call DeBraska and Cermele as witnesses. Officer Bartlett objected, asserting attorney-client privilege and work product protection. After taking testimony on the matter, the district court ruled that DeBraska's presence during Officer Bartlett's conversations with Cermele did not destroy the attorney-client privilege because DeBraska was acting as Cermele's agent by assisting Cermele in rendering legal services to Officer Bartlett. Therefore, the district court held, Ms. Jenkins could not call DeBraska or Cermele to testify.

The jury returned a verdict in favor of Officer Bartlett. Ms. Jenkins now appeals.

II DISCUSSION

Ms. Jenkins raises three issues on appeal. First, Ms. Jenkins submits that the district court erred when it allowed Drs. Jentzen and Mainland to testify as expert witnesses because the defendants had failed to provide an expert report that satisfied Federal Rule of Civil Procedure 26(a)(2)(B) and because their testimony did not satisfy the Daubert standard for reliability of expert testimony offered under Federal Rule of Evidence 702. Next, she contends that the district court erred when it sustained Officer Bartlett's claim of attorney-client privilege despite DeBraska's presence during conversations between Officer Bartlett and Cermele. Lastly, Ms. Jenkins challenges the district court's grant of summary judgment on her Monell claims against the City and Chief Jones. We shall address each of these issues.

A. Expert Testimony

Ms. Jenkins contends that the district court erred when it permitted Drs. Jentzen and Mainland to testify as...