Kopf v. Skyrm

Decision Date07 May 1993
Docket NumberNo. 92-1566,92-1566
Citation993 F.2d 374
Parties37 Fed. R. Evid. Serv. 649 Ada Sandra KOPF, Personal Representative of the Estate of Anthony John Casella, Plaintiff-Appellant, v. James SKYRM; Prince George's County, Maryland, a body corporate and politic; Joseph P. Wing, Corporal; Steven Kerpelman, Corporal, Defendants-Appellees, and Other Unknown Officers of the Prince George's County Police Department, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

Terrell Non Roberts, III, argued (Christopher Griffiths, on brief), Roberts & Wood, Riverdale, MD, for plaintiff-appellant.

Sean Daniel Wallace, Associate County Atty., argued (Michael P. Whalen, County Atty., Michael O. Connaughton, Deputy County Atty., and Alan E. D'Appolito, Associate County Atty., on brief), Upper Marlboro, MD, for defendants-appellees.

Before ERVIN, Chief Judge, and HALL and PHILLIPS, Circuit Judges.

OPINION

K.K. HALL, Circuit Judge:

Ada Kopf appeals a judgment entered after a jury verdict in favor of the defendant police officers and a subsequent summary judgment for the defendant county in this 42 U.S.C. § 1983 action alleging excessive use of force during the arrest of Kopf's deceased son. We reverse and remand for a new trial.

I.

At midnight on February 21, 1988, a white male with a handgun robbed a pizza take-out shop in Hyattsville, Maryland. One hundred dollars were stolen. Witnesses recorded the license number of the van in which the perpetrator had fled the scene, and all local police were promptly on the lookout for it.

Within minutes, Hyattsville city police spotted the van and gave chase. The vehicle stopped, and its occupants--Joseph Corcoran (the actual stickup man), Anthony Casella, and Tammy Obloy--fled on foot. Corcoran fell, injured his leg, and was easily apprehended. Inasmuch as Corcoran did not have the gun used in the robbery, the arresting officers concluded that the other two suspects might have it. Corcoran had actually thrown the gun out of the window of the van.

Casella and Obloy hid behind a garage in the backyard of a nearby house. The hiding place was an extremely narrow passage between the wall of the garage and a fence around the yard. One end of the passage was obstructed by a post and the other by a woodpile.

Prince George's County officer Joseph Wing arrived with his police dog "Iron." After one unsuccessful track around the neighborhood, Iron located Casella and Obloy's hiding place.

According to Wing, he announced in a loud voice that he would release the dog unless the suspects surrendered. Obloy testified that she heard no warning.

Wing released Iron. He testified that he did so because it was more reasonable to subject the dog rather than an officer to the possibility of being shot. Iron ran to the garage and went into the passage. Wing followed. With his flashlight, Wing could see Iron bite Obloy. Casella kicked Iron. According to Obloy, Casella yelled to the officers to tell them she was pregnant and to get the dog off of her. Wing did not recall Iron. Rather, he repeatedly ordered Casella and Obloy to raise their hands, but they did not. Iron released Obloy and began biting Casella.

Two more county policemen, Steven Kerpelman and James Skyrm, arrived. They climbed over the woodpile and grabbed Casella; the dog continued to assist by biting. Casella was screaming and flailing his arms around. Skyrm could see that Casella did not have a gun in his hands, and he holstered his own weapon and grabbed his slapjack. He testified that he struck Casella a number of times, and that he may have hit him on the head.

By this time, Wing also knew that Casella was unarmed. Still, he did not order Iron to release; instead, he ran around the garage to the more accessible (woodpile) end in order to assist Kerpelman and Skyrm.

Iron began biting Casella in the thigh and groin. Casella was flailing his arms and legs around. According to Wing, Casella's arm hit him, and he responded with a slapjack blow to Casella's upper body, unintentionally striking Casella's head. According to Obloy, just before the first blow struck Casella's head, an officer said angrily, "Don't touch my dog." Obloy was subdued and removed from the woodpile. Finally, Wing commanded Iron to release Casella.

From a hunched over position between standing and kneeling, Casella lunged forward. Kerpelman interpreted this movement as an attempt to grab Skyrm's holstered gun. Kerpelman struck Casella with his slapjack, again in the head, again, according to the officer, unintentionally. At some point, one of Casella's flailing blows struck Kerpelman, causing a minor cut on his forehead.

Soon the officers had pulled Casella out into the open yard. The struggle (or, according to the plaintiff, the beating) continued. Kerpelman struck Casella with his flashlight and, after it broke, his slapjack.

Casella was eventually reduced to senselessness. Emergency medical personnel were summoned to the scene. According to one of the paramedics, Wing walked up to Casella as he lay on a stretcher and said, "You son of a bitch, you kicked my dog." Wing denied making this statement.

Casella was transported by ambulance to a local hospital. On arrival, he was awake but confused and combative. Because these symptoms could be produced by an acute drug overdose, particularly of PCP, a drug test was performed. The result was negative.

An examination for traumatic head injuries proved more fruitful. At trial, one of the treating physicians identified five different lacerations on photographs of Casella's scalp. His skull was fractured, and he had a epidural hematoma, which required immediate surgery. Dog bites adorned Casella's lip, right arm, chest, knee, thigh, and scrotum. The five-inch-long thigh wound was deep and involved muscle. The skin covering Casella's scrotum was avulsed "in a jagged fashion," though the scrotal sac was intact.

Following the brain surgery and inpatient recuperation, Casella spent five months in a brain injury rehabilitation program at Mount Vernon Hospital. He suffered several cognitive deficits from his head injuries, the most serious of which was aphasia--an impairment in the ability to express oneself verbally. Though he made progress, he never fully recovered.

Casella pled guilty to armed robbery and was sentenced to state prison. He later brought this suit against Wing, Kerpelman, Skyrm, and Prince George's County. He alleged a claim under 42 U.S.C. § 1983 against all defendants and pendent state-law claims for battery and negligence.

On July 31, 1989, Casella was attacked in prison and killed. Ada Kopf, his mother, is his personal representative and was substituted as plaintiff.

Following discovery, the district court granted summary judgment for the defendants. Kopf appealed, and this court reversed and remanded. Kopf v. Wing, 942 F.2d 265 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1179, 117 L.Ed.2d 423 (1992).

On remand, the district court bifurcated the claims against the individual officers from the claims against the county and set the former for trial first. Then, in the central ruling on appeal, the district court ruled in limine that two expert witnesses Kopf expected to call--Thomas Knott and Robert diGrazia--would not be permitted to testify. Kopf sought a writ of mandamus from this court to compel the district court to permit the testimony. We denied the writ. In re Kopf, No. 92-1033 (4th Cir. Feb. 12, 1992).

A jury trial was held. Because of the total exclusion of her expert witnesses, Kopf was forced to call Wing as an adverse witness and to ask him about the standards for and the particular use of the dog. Wing did not give the answers Kopf would have liked, and she was unable to rebut them. On the use of slapjacks, Kopf introduced a lesson plan for county officers, which stated, "[n]ever strike your aggressor's head, neck, or throat." The court permitted the author of this report to contradict it with testimony that the head was not a "primary target area," but "there may be a time in [a] police officer's career where a blow to the head is necessary." Again, Kopf's experts were not permitted to rebut these assertions. 1

The jury returned a verdict for the defendants. On the county's motion, summary judgment was then entered for it as well.

Kopf appeals.

II.
A.

Fed.R.Evid. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Article VII of the Federal Rules of Evidence eliminated many formalistic barriers imposed by the common law on the introduction of opinion and expert testimony. Rule 702 is broadly interpreted, and helpfulness to the trier of fact is its "touchstone." Friendship Heights Associates v. Koubek, 785 F.2d 1154, 1159 (4th Cir.1986). Testimony from an expert is presumed to be helpful unless it concerns matters within the everyday knowledge and experience of a lay juror. Persinger v. Norfolk & Western Railway Co., 920 F.2d 1185, 1188 (4th Cir.1990) (testimony about how difficult it is to lift heavy things is not "helpful" and is thus excludable). Even then, the erroneous admission of such testimony is usually harmless: an astronomer's explanation that the days are longer in the summertime may not assist the jury, but it is also not likely to cause an erroneous finding of fact. "Trouble is encountered only when the evaluation of the commonplace by an expert witness might supplant a jury's independent exercise of common sense." Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.1986).

The witness' qualifications to render an expert opinion are also liberally judged by Rule 702. Inasmuch as the rule uses the disjunctive, a person may qualify to render expert testimony...

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