Boerste v. Ellis, LLC
| Decision Date | 28 September 2021 |
| Docket Number | Civil Action 3:17-CV-00298-BJB-CHL |
| Parties | BRYAN TYLER BOERSTE, Plaintiff, v. ELLIS, LLC, et al., Defendants. |
| Court | U.S. District Court — Western District of Kentucky |
REPORT AND RECOMMENDATION
Before the Court are seven motions to exclude expert testimony filed by various Parties (DNs 178, 179, 180, 181, 182, 183, 184) the Motion for Leave to File a Surreply (DN 229) of Plaintiff Bryan Tyler Boerste (“Boerste”), and Motion for Leave to file a response out of time (DN 231) filed jointly by Defendant Ellis, LLC (“Ellis LLC”); Defendant Ellis Towing, LLC (“Ellis Towing”); Defendant Kevin Bewley (“Bewley”); Defendants City of Springfield, Kentucky and Springfield Police Department (the “Springfield Defendants”); Defendant Michael Cotton (“Cotton”); Defendant Mattingly Security Inc. (“Mattingly Security”); and Defendant Joshua Baker (“Baker”) (collectively “Defendants”). All motions related to the admissibility of expert testimony pursuant to Fed.R.Evid 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), have been referred to the undersigned “to conduct a hearing, if necessary, and to submit proposed findings of fact and a recommendation for disposition.” (DN 195.) The case has also been referred to the undersigned “for hearing and determining all pretrial matters, including non-dispositive motions” pursuant to 28 U.S.C. § 636(b)(1)(A). (DN 237.) While the latter referral would permit the undersigned to issue an order resolving the two motions for leave (DNs 229, 231), given the relationship of those motions to the motions on which the undersigned has been tasked with making a report and recommendation, the undersigned will likewise make a recommendation on the motions for leave.
All motions are either fully-briefed or the time to submit responses and replies has expired. (DNs 198, 199, 204, 205, 210, 214, 216, 217, 218, 223, 233, 235.) Therefore, these matters are ripe for review.
This matter arises from an April 16, 2016, incident.[1] Boerste was visiting friends at St. Catharine College (“St. Catharine”), which at the time was located in Springfield, Kentucky.[2]Defendants allege that while visiting his friends, Boerste used drugs-namely, Xanax, marijuana, and cocaine.[3] That morning, Baker, an employee of Mattingly Security, which provided campus security at St. Catharine, saw Boerste and his friend attempting to access a door improperly and otherwise acting strangely.[4] Ultimately, Baker asked Boerste and his friend to leave the building and wait by their vehicle; Baker called the Springfield Police Department because he was concerned about the two men driving and suspicious they were under the influence.[5]
Springfield Police Officer Cotton arrived on scene and administered a breathalyzer test, which Boerste was told he passed.[6] Cotton told them to leave campus, and they drove away.[7] Baker watched Boerste and his friend drive to a different place on campus, alerted Cotton, and Cotton again told the two to leave.[8] As Boerste attempted to leave the second time, he ran a stop sign and went straight through a t-intersection, getting his car stuck on the edge of the road.[9]
Baker called a tow truck at the direction of the St. Catharine's Vice President of Student Affairs.[10] Boerste and his friends wanted to try to push the car back onto the road, but Baker refused.[11] When Bewley, the tow truck driver from Ellis Towing, LLC and/or Ellis LLC, [12] arrived and began to pull Boerste's car up onto the tow truck, Boerste climbed onto his car's roof.[13]Ultimately, Bewley drove away with Boerste still on the roof of his car.[14] As Bewley drove away, Boerste either fell from the roof of his car or jumped and struck his head on the guardrail.[15] Boerste was airlifted to the hospital.[16]
Boerste alleged that neither Baker nor Cotton took any action to prevent Bewley from loading his car onto the rollback tow truck or driving away with him on top.[17] Boerste claimed that as a result of the accident he incurred medical expenses and will continue to incur future medical expenses for care and rehabilitative services.[18] He alleged that he incurred lost wages, lost benefits of employment, and permanent impairment of his ability to labor and earn money and perform household services as a result of the accident.[19] He brought negligence, gross negligence, and IIED claims against all Defendants; claims for violations of 42 U.S.C. § 1983 against the Springfield Defendants, Cotton, Bewley, and Ellis Towing; claims for failure to train and supervise against the Springfield Defendants, Mattingly Security, and Ellis Towing; and assault and battery claims against Ellis Towing, Ellis LLC, and Bewley.[20]
Fed. R. Evid. 702, which governs the admission of expert testimony, provides, 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:
Fed. R. Evid. 702. These prerequisites apply to not only to “scientific” testimony but to all expert testimony within the scope of Fed.R.Evid. 702. Kumho Tire, 526 U.S. at 141, 147 (quoting Fed.R.Evid. 702).
Under this Rule, the trial judge acts as a gatekeeper to ensure that expert testimony is both relevant and reliable. See Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir. 2000) (); Daubert, 509 U.S. at 589. Although there is no “definitive checklist or test” to strike this balance, relevant factors include: (1) whether a theory or technique “can be (and has been) tested”; (2) whether a “theory or technique has been subjected to peer review and publication”; (3) the “known or potential rate of error”; and (4) whether the theory or technique is generally accepted. Daubert, 509 U.S. at 593-94. These factors are not exhaustive and the inquiry is “a flexible one, ” Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 677 (6th Cir. 2011) (citations omitted), for district courts must be mindful that “the gatekeeping inquiry must be ‘tied to the facts' of a particular ‘case.' ” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). Further, in assessing reliability, the Court must focus “solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595.
The proponent of expert testimony “must establish its admissibility by a preponderance of proof.” Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001) (citing Daubert, 509 U.S. at 592 n.10); Sigler v. Am. Honda Motor Co., 532 F.3d 469, 478 (6th Cir. 2008). Additionally, where the Parties submit sufficient information for the Court to adjudicate the motion, the Court is not required to hold a hearing. Nelson, 243 F.3d at 249; Kumho, 526 U.S. at 152.
After reviewing the Parties' briefs, the undersigned finds that there is an adequate basis in the record from which to determine the qualifications of the experts at issue and the relevance and reliability of their proposed testimony. Though Fed.R.Civ.P. 26(a)(2) requires only disclosure of a party's expert witnesses subject to the conditions therein and Fed.R.Civ.P. 5(d)(1)(A) directs that expert disclosures made pursuant to Fed.R.Civ.P. 26(a)(2) not be filed in the record “until they are used in the proceeding, ” the Parties generally filed the relevant disclosures in the record separately and in advance of filing their Daubert motions.[21] The Parties also either separately filed or attached to their motion(s) the entirety or relevant excerpts of the depositions of the experts at issue.[22] Thus, the undersigned finds no evidentiary hearing is necessary to resolve the instant Daubert motions. See Zuzula v. ABB Power T & D Co., 267 F.Supp.2d 703 (E.D. Mich. 2003) (citing Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999)) ( that no evidentiary hearing was necessary to resolve Daubert motions where “the parties ha[d] submitted sufficient information to permit the Court to adjudicate the motions”).
The Springfield Defendants, Cotton, Mattingly Security, and Baker filed a motion to exclude the testimony of Charles W. Drago (“Drago”), Boerste's expert on “proper police policies, practices in arrest techniques[, ] and security.”[23] (DN 112, at PageID # 2004; DN 178.) The Parties took Drago's deposition on December 18, 2019. (DN 225.)
Drago has had a thirty-year career in law enforcement with experience in the roles of police chief, assistant police chief, field training officer, detective, sergeant, captain and major, as well as experience as a “frontline law enforcement officer who was directly or indirectly involved in thousands of arrests.” (DN 112-1, at PageID # 2011-12.) He has an Associates Degree in Criminal Justice from the State University of New York in Farmingdale, New York and a Bachelor of Arts Degree in Administration of Justice from St. Thomas University in Miami, Florida; completed a 400-hour Command Officers Development Course at the Southern Police Institute at the University of Louisville in Louisville Kentucky; and has a...
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