Emery v. Talladega Coll.
| Decision Date | 08 March 2016 |
| Docket Number | Case No.: 1:14-CV-880-VEH |
| Citation | 169 F.Supp.3d 1271 |
| Parties | Joshua Emery, Plaintiff, v. Talladega College, et al, Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
William J. Baxley, Donald R. James, Jr., Joel E. Dillard, Baxley Dillard McKnight James & McElroy, Joseph D. Jackson, Jr., Birmingham, AL, for Plaintiff.
Horace Cecil Ireland, III, James Michael Cooper, Porterfield Harper Mills & Motlow PA, Birmingham, AL, for Defendants.
VIRGINIA EMERSON HOPKINS
This case arises out of the shooting of Joshua Emery while a student at Talladega College. The defendants, Talladega College, Billy C. Hawkins, Jacqueline W. Paddio, and Miguel A. Bonds (“Talladega” or “Defendants”) have moved for summary judgment under Rule 56 against Plaintiff Joshua Emery (“Emery” or “Plaintiff”). The parties have also filed a panoply of discovery-related motions, all of which, other than Defendants' Motion to Strike Expert Testimony, will be TERMED AS MOOT in light of the resolution of this Motion for Summary Judgment. The Motion for Summary Judgment will be GRANTED. The Motion to Strike Expert Testimony will be GRANTED IN PART AND DENIED IN PART.1
Except as set out below, this motion will DENIED . The reason for this is two-fold. First, the motion to strike the report and testimony in their entirety is too broad, and, had the case survived summary judgment, it would have been appropriate to take up more atomistic objections to the report in advance of trial. Second, Emery only cites to the report and testimony three times as evidentiary support in his response to the motion for summary judgment, and it is unnecessary to resolve the admissibility of the report beyond those cited portions. The cited portions are:
The threshold issue for the admissibility of expert testimony and reports is Rule 702, which provides, in relevant part, that 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.” FED. R. EVID. 702(a)
(emphasis added). While expert opinions are technically subject to exclusion under FED. R. EVID. 403, see Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Rule 702 is a more stringent barrier that allows expert opinions to be excluded when the opinion's probative value and prejudicial effect are in equipoise, so the Rule 403 analysis is (as a practical matter) within the Rule 702 analysis. See 29 CHARLES ALAN WRIGHT AND VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE § 6263 at 196 (1997).
Defendants move to strike the expert testimony because it fails, they allege, to satisfy Rule 702
and, in the alternative, should be excluded under Rule 403 anyhow. For the reasons above, the court only conducts the Rule 702 analysis. The Eleventh Circuit has refined the Rule 702 analysis somewhat to require that the trial court consider, first, whether “the expert is qualified to testify competently regarding the matters he intends to address,” second, whether his methodology satisfies Daubert, and third, whether the testimony would assist the trier of fact, through specialized expertise, to understand the evidence or to determine a fact in issue. United States v. Frazier , 387 F.3d 1244, 1260 (11th Cir.2004).
As to paragraphs 74 and 75, Gaut is clearly qualified. His background in law enforcement gives him experience sufficient to consider proper protocols for the reporting of crimes. Because this opinion is a deeply factual one, it could easily be undercut by cross examination if it were untrue, so the touchstone of Daubert
, reliability, is satisfied. Finally, this information would assist the trier of fact in determining the Defendants' mental state as to Emery's fraud claims. The motion is DENIED as to paragraphs 74 and 75.
Paragraph 72 is a different story. The court is unwilling to assume that Dr. Gaut—or anyone—is qualified to render such an opinion, but the short explanation for why it should be excluded is that it would not assist the trier of fact because it does nothing but make Emery's closing argument for him. See Frazier , 387 F.3d at 1262–63
(). Further, as will be discussed infra , there is almost no evidence to support this opinion; it is “rank speculation.” See 29 CHARLES ALAN WRIGHT AND VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE § 6924 at 226–27 & n. 45 (1997) (collecting cases). The motion to strike is GRANTED insofar as Dr. Gaut's opinion is used to support the facts in Paragraph 72.
Emery asserts four claims against the Defendants. Count I, against Talladega College, alleges that Talladega College negligently or wantonly failed to provide for his safety, resulting in his shooting injury. Count II, against Talladega College, Hawkins, and Paddio, alleges promissory fraud on the basis of those defendants' promise, and subsequent failure, to pay Emery's medical bills after the shooting. Count III, against Talladega College and Bonds, alleges that they deceived Emery and thereby harmed him by telling him he could study engineering and play in the band at Talladega College. Count IV, against all defendants, alleges that they concealed information about the true prevalence of crime and violence from prospective students. Defendants move for summary judgment as to all counts.
A New Orleanian, Emery enrolled as a freshman at Talladega College in August 2012. (Emery Dep. 59:16-22; 60:9-23; 70:1-2). Prior to enrollment, Miguel Bonds offered Emery a $2,000 band scholarship to attend Talladega College. (Emery Dep. 39:18–23). At the time of enrollment, Emery wanted to major in engineering because he likes to use his hands, and he had an interest in cars. (Emery Dep. 45:2–8). Talladega College does not offer an Engineering Program, Bonds Dep. 34:20–35:2, but Emery was informed that they had such a program at the time he enrolled and only learned the truth a few months after enrollment. (Emery Dep. 69:14–70:10).
Additionally, Bonds informed Emery before enrollment that the crime rate in Talladega was “not that high.” (Emery. Dep. 242:18–22). Similarly, Bonds responded to a question from Sherida Emery, Joshua Emery's mother, about the safety of campus by saying “it's pretty safe.” (Sherida Dep. 40:20–22). Bonds also described Talladega as a “friendly area” and a “little hick town.” (Sherida Dep. 40:13–17).
On October 12, 2012, near “The Inn,” Emery Dep. 195:4–15, while Emery and two other Talladega College band members were walking on a campus sidewalk to meet other students for “activities at the campus chapel,” Emery observed “three people [he] walked past.” (Emery Dep. 87:13–14). He “looked” and “didn't recognize them, so” he “turned [his] head.” (Emery Dep. 87:15–16). “[O]ne of them was looking at [Emery] kind of strange like he had a problem.” (Emery Dep. 87:16–18). Emery kept walking because “they had a bottle sitting next to them.” (Emery Dep. 87:19–21). Emery and his friends proceeded to the chapel without incident. (Emery Dep. 87:22–88:2).
After stopping at the chapel, Emery returned to see (Emery Dep. 88:3–6). Emery said “what's up?” to the individual, to which the individual replied, “what's up, what you mean, you want to fight?” (Emery Dep. 88:7–9). Emery then said to the individual, “What you want to do then,” but the individual's friends grabbed the individual and said “we're not on that.” (Emery Dep. 88:10–12). Emery walked off, and the three individuals, who Emery characterized as “locals,” began to follow him, Emery Dep. 88:13–17,3 “cursing and threatening.” (Emery Dep. 195:10–15).
As he walked off, Emery became afraid, so he called a bandmate over. In response to his call, “a crowd” of other Talladega College students ran to the Inn and joined Emery. (Emery Dep., 165:7-13) The locals, as they followed, were still “riled up,” and the individual who had previously asked Emery to fight was “rah-rahing up at the mouth.” (Emery Dep. 88:21–23; 89:1). Emery asked the local if he wanted to fight, and the local's friends again said “we're not on that.” (Emery Dep. 89:2–4). One of the locals then made a phone call, and shortly thereafter someone pulled up in a Black Dodge Charger with a license plate that said “ColbyD.” (Emery Dep. 89:4–7).
The driver (“ColbyD”) exited the vehicle with his hand in his pants; he removed his hand, and he was holding a bottle that he subsequently placed into the car. (Emery Dep. 89:10–15). He then reached into the car, retrieved a gun, and stuck it into his pants. (Emery Dep. 89:16–18). Everyone “kind of backed up,” but a campus police car passed by, and the locals piled into the Charger with ColbyD and drove off. (Emery Dep. 89:19–23).
Seeing the crowd of people, the...
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