Lippe v. Howard

• Decision Date: 14 February 2018
• Docket Number: Case No. CIV–15–331–D
• Citation: 287 F.Supp.3d 1271
• Parties: Vielka M. LIPPE and Christopher Lippe, individually, and as husband and wife, Plaintiffs, v. Christopher HOWARD, an individual and in his official capacity as a Police Officer for the City of Oklahoma City ; and The City of Oklahoma City, a municipal corporation, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

287 F.Supp.3d 1271

Vielka M. LIPPE and Christopher Lippe, individually, and as husband and wife, Plaintiffs,

v.Christopher HOWARD, an individual and in his official capacity as a Police Officer for the City of Oklahoma City ; and The City of Oklahoma City, a municipal corporation, Defendants.

Case No. CIV–15–331–D

United States District Court, W.D. Oklahoma.

Signed February 14, 2018

David J. Batton, Norman, OK, Jeremy Z. Carter, Carter Law Firm–NewCastle, Newcastle, OK, Antonio M. Romanucci, Bhavani K. Raveendran, Romanucci & Blandin LLC, Chicago, IL, for Plaintiffs.

Ambre C. Gooch, Collins Zorn & Wagner PC, Stacey Haws Felkner, Oklahoma City, OK, Richard C. Smith, Paulina Thompson, Municipal Counselor's Office–OKC, Oklahoma City, OK, for Defendants.

ORDER

TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE

Before the Court are Defendant City of Oklahoma City's Objections to Plaintiffs' Expert Witness Reports of John A. Cocklin and Jason Bass and Use of Said Experts [Doc. No. 96], and Defendant Christopher Howard's Motion to Exclude the Expert Report and Testimony of Plaintiffs' Expert John Cocklin and Brief in Support [Doc. No. 97]. Plaintiffs have responded [Doc. Nos. 102, 104], and Defendants have replied [Doc. Nos. 108, 111]. The matter is fully briefed and at issue.¹

BACKGROUND

Plaintiffs have filed suit under 42 U.S.C. § 1983 and state law for injuries allegedly suffered during an encounter with Defendant Christopher Howard ("Howard"), a police officer for the City of Oklahoma City (the "City"). Plaintiffs have sued the City and Howard. The First Amended Complaint asserts four claims against Howard individually: 1) a § 1983 claim for unlawful seizure and excessive use of force; 2) intentional infliction of emotional distress and outrageous conduct; 3) intentional violations of Plaintiffs' state constitutional rights; and 4) negligence. [Doc. No. 13]. It also asserts a failure to train or supervise claim and a negligence claim against the City. In support of these claims, Plaintiffs retained John Cocklin and Jason Bass as expert witnesses to testify about police policies, procedures, training and use of force.

1. John Cocklin

From 2002 until his retirement from government service in 2014, Mr. Cocklin was the chief investigator for the New Jersey Division of Alcoholic Beverage Control ("NJ ABC"), which investigates alleged violations of the New Jersey Alcoholic Beverage Control Act. See Cocklin's Résumé [Doc. No. 97–1 at 2]. As chief investigator, Mr. Cocklin supervised detectives and civilian investigators. Cocklin's Dep. [Doc. No. 97–2 at 22]. From 1980 until 2002, Mr. Cocklin was a detective with the Division of Criminal Justice for the New Jersey Attorney General's Office ("NJDCJ") where he served in different supervisory roles, including chief of detectives. Cocklin's Résumé [Doc. No. 97–1 at 3–4]. Admittedly, the only time Mr. Cocklin has served as a uniformed police officer was between 1977 and 1979. Id. at 5; see also Cocklin's Dep. [Doc. No. 97–2 at 25]. However, as a NJDCJ detective for 22 years, he held statewide police and special deputy sheriff powers and authority. Cocklin's Dep. [Doc. No. 97–2 at 24].

Since 2014, Mr. Cocklin has worked as an expert witness, first on his own and more recently as a salaried employee with Robson Forensic. Cocklin's Résumé [Doc. No. 97–1 at 1]; see also Cocklin's Dep. [Doc. No. 97–2 at 3–10]. Mr. Cocklin has testified as an expert witness in only three cases, all of which were dram shop cases involving alleged violations of alcoholic beverage regulations. Cocklin's Dep. [Doc. No. 97–2 at 4–7, 15–16]. Mr. Cocklin has no prior experience serving as an expert witness in use of force cases. He has written no peer-reviewed literature that relates to use of force.²

Mr. Cocklin's expert report in this case was "peer reviewed" by two of his colleagues at Robson Forensic. Cocklin's Dep. [Doc. No. 97–2 at 10–14]. One peer reviewer specializes in toxicology while the other specializes in "police service" cases. Id. at 10–14.

Mr. Cocklin has served as a New Jersey Police Training Commission certified instructor for 25 years. Cocklin's Résumé [Doc. No. 97–1 at 4]. He has provided instruction in more than 50 basic police training courses, including firearms training. Id. He has additional certifications as a firearms instructor, rangemaster and sub-gun instructor. Id.

As chief investigator of the NJ ABC, Cocklin created, designed and implemented the NJ ABC's Last Drink Initiative and the first statewide investigation of alcoholic beverage substitution by bars and restaurants. Id. at 2. In addition, he was a member of the NJ ABC's executive staff and participated in the review, modification and enactment of administrative regulations for the alcoholic beverage industry. Id.

Cocklin was a commanding member of the New Jersey Attorney General's Police Shooting Response Team. Id. at 3. The team established statewide protocols for the investigation of police involved shootings and other uses of deadly force. Id. In his role as deputy chief of detectives, he also oversaw the NJDCJ's Internal Affairs Unit and the Prosecutor's Supervisory Bureau for four years. Id. This role required Cocklin to supervise and review all criminal and non-criminal professional misconduct, use of force and code of ethics violations involving NJDCJ personnel and all county prosecutor offices in New Jersey. Id.

Mr. Cocklin intends to offer the following opinions concerning Howard's actions on February 1, 2014:

1. Howard, while off duty, in plain clothes and without his police badge created a dangerous situation when he took police action against Mrs. Lippe. Howard should have known that no objectively reasonable person under the same circumstances as Mrs. Lippe would have known he was a police officer.

2. Howard illegally detained, constructively arrested and injured Mrs. Lippe and caused damage to her vehicle.

3. A similarly trained and objectively reasonable police officer under the same circumstances would have determined he lacked reasonable suspicion to detain or probable cause to arrest.

4. Howard used prohibited police tactics when he placed himself in front of a motor vehicle in an attempt to detain Mrs. Lippe. Further, Howard used excessive and deadly force against Mrs. Lippe. Howard's actions violated the standard of care outlined in the OCPD policies and procedures and was contrary to Oklahoma law and national model policies for off duty police conduct.

Cocklin's Report [Doc. No. 97–3 at 19].

Howard's and the City's objections to Mr. Cocklin's testimony are based on the content of Mr. Cocklin's expert report and his deposition testimony. Howard and the City contend that Mr. Cocklin has offered opinions on matters that he is not qualified to address and that his opinions on police procedure and use of force are not reliable.

2. Jason Bass

Mr. Bass worked for the Oklahoma County Sheriff's Office from August 2000 until his resignation³ in April 2015. See Bass' Résumé [Doc. No. 96–6 at 1]; see also [Doc. No. 96–4]. Prior to his resignation, Mr. Bass had achieved the rank of Corporal and his Advanced Peace Officer certification. Bass' Résumé [Doc. No. 96–6 at 1]; Bass' Report [Doc. No. 96–2 at 1]. As a Corporal Detective, Bass supervised criminal investigations, trained subordinates in proper police procedure, and developed and implemented departmental policies and procedures. Bass' Résumé [Doc. No. 96–6 at 1].

Mr. Bass was also assigned to the Special Investigations Unit ("SIU") of the Oklahoma County Sheriff's Office as a supervisor detective. Bass' Report [Doc. No. 96–2 at 1]; Bass' Résumé [Doc. No. 96–6 at 2]. The SIU is responsible for investigating administrative and criminal allegations that involve Sheriff's Office personnel. Id. This includes allegations of staff misconduct and assaults both on and off duty. Id. In addition, Mr. Bass assisted in the development of the Oklahoma County Sheriff's Office Policy and Procedures Manual. Bass' Report [Doc. No. 96–2 at 1].

Mr. Bass' résumé indicates he was the sole administrator for the Oklahoma County Detention Center's inmate phone recording system. Bass' Résumé [Doc. No. 96–6 at 2]. In this capacity, Bass was charged with investigating criminal cases involving inmates. Id. Additionally, it appears Mr. Bass worked as a paid consultant for Telmate, an inmate communicationsfirm. Id. at 1. Mr. Bass trained law enforcement and jail staff across the country on the company's software. Id.

Mr. Bass' report indicates he has submitted expert reports in two state cases.⁴ Bass' Report [Doc. No. 96–2 at 1]. Neither case appeared to involve the use of force by a police officer. One involved charges of robbery with a dangerous weapon, first-degree burglary and kidnapping. The other included charges for possession of child pornography and downloading obscene materials. Thus, it appears Mr. Bass has no prior experience serving as an expert witness in use of force cases. Moreover, he has written no peer-reviewed literature relating to the use of force.

Based on his review of Howard's and other OCPD officers' depositions in this case, Mr. Bass opines that the OCPD failed to effectively train its officers on its policies concerning use of force, use of deadly force and carrying of firearms off duty. Bass' Report [Doc. No. 96–2 at 7]. Mr. Bass further opines that the OCPD's failure to train caused Mrs. Lippe's injuries on February 1, 2014. Id.

The City's objections to Mr. Bass' testimony are based on Mr. Bass' expert report. The City contends that Mr. Bass has offered opinions on matters that he is not qualified to address and that his opinions on police procedure and use of force are not reliable.

DISCUSSION

Courts have broad discretion in determining the admissibility of expert testimony. Taylor v. Cooper Tire & Rubber Co. , 130 F.3d 1395, 1397 (10th Cir. 1997). A district court also has broad discretion to decide "how to assess an expert's reliability, including what procedures to utilize...