United States District Court, D. Maine
WILLIAM P. SADULSKY and SANDRA SADULSKY, Plaintiffs
HALEY L. FLEMING, Defendant
MEMORANDUM DECISION AND ORDER ON MOTIONS IN LIMINE
John H. Rich III United States Magistrate Judge
In this action alleging that the defendant, Winslow police officer Haley L. Fleming, used excessive force against plaintiff William P. Sadulsky and negligently caused plaintiff Sandra Sadulsky emotional distress, Fleming has filed three motions in limine (i) to preclude the plaintiffs from introducing evidence of Taser manufacturer recommendations, (ii) to bar testimony of witnesses not present during the incident at issue, and (iii) to preclude certain testimony of the plaintiffs’ expert, Melvin Tucker. See Defendant’s Motion in Limine To Preclude Plaintiffs From Introducing Evidence of Taser Manufacturer’s Recommendations (“Taser Motion”) (ECF No. 85); Defendant’s Motion in Limine To Preclude Testimony From Plaintiffs’ Witnesses Not Present at Incident (“Witness Motion”) (ECF No. 86); Defendant’s Motion in Limine To Exclude Certain Expert Testimony of Melvin Tucker (“Expert Motion”) (ECF No. 87).
For the reasons that follow, the Taser Motion is denied; the Witness Motion is mooted in part as to one witness, former Chief Jeffrey P. Fenlason, granted in part to the extent that the remaining five witnesses are permitted to testify solely for purposes of impeachment, and otherwise denied; and the Expert Motion is granted in part with respect to any testimony defining the term “consensual encounter, ” expressing an opinion that Fleming’s interaction with the plaintiffs constituted such an encounter, or offering an opinion that Fleming’s use of force was unreasonable, and otherwise denied. To the extent I have denied the motions, my denial is without prejudice to Fleming’s interposition of objections at trial consistent with this order.
A. Taser Motion
Fleming seeks to preclude the plaintiffs from introducing evidence of the Taser manufacturer’s training or certification recommendations or requirements on the bases that that evidence is irrelevant, unduly prejudicial, and could confuse the jury. See Taser Motion at -. On the showing made, the motion is denied.
Fleming reasons that, because this court ruled on summary judgment that the Town of Winslow (“Town”) was not liable on a failure-to-train theory pursuant to 42 U.S.C. § 1983 or the Maine Civil Rights Act despite the Town’s failure to require annual training in Taser usage as recommended by the manufacturer, evidence regarding the manufacturer’s recommendations or requirements is irrelevant as to his conduct. See id. at -. However, it is a separate question whether Fleming is liable for his alleged use of excessive force against plaintiff William Sadulsky, and the court did not rule that the manufacturer evidence was irrelevant as to any defendant. See Recommended Decision on Motion for Partial Summary Judgment (“Summary Judgment Ruling”) (ECF No. 55) at 18-19; Order Affirming the Recommended Decision of the Magistrate Judge (ECF No. 58). While, as Fleming points out, see Taser Motion at , the court noted that the State of Maine does not require annual Taser training, see Summary Judgment Ruling at 19, that goes to the weight, rather than the admissibility, of the Taser manufacturer evidence.
To the extent that Fleming seeks preclusion of the Taser manufacturer evidence on the basis that, pursuant to Federal Rule of Evidence 403, any probative value is outweighed by the danger of unfair prejudice to him and/or confusion of the jury, see Taser Motion at -, I decline to bar the evidence on that ground in advance of trial. Fleming is free to raise the objections that are the subject of this motion (both relevance and Rule 403) if and when any Taser manufacturer evidence is offered at trial, at which time I will rule on its admissibility in the trial context.
B. Witness Motion
Fleming seeks to preclude the testimony of six witnesses not present at the time of the incident at issue on the bases that their testimony would be irrelevant, unduly prejudicial, and/or confusing to the jury and that the plaintiffs failed to include them in their initial disclosures, instead disclosing them for the first time in their final pretrial memorandum, well past the close of discovery. See Witness Motion at -. The motion is mooted in part, as to former Chief Fenlason, by the plaintiffs’ representation that he will not be called. See Plaintiffs’ Response to Defendant’s Motion To Preclude Testimony From Plaintiffs’ Witnesses Not Present at Incident (“Witness Response”) (ECF No. 97) at 3. I otherwise grant the motion in part, to the extent that, in view of the plaintiffs’ failure to timely disclose these witnesses, they shall be permitted to call the remaining five solely for impeachment purposes. See Fed. R. Civ. P. 26(a)(1)(A)(i). I decline to bar testimony of these witnesses in advance of trial on the bases that it is irrelevant, unduly prejudicial, and/or confusing to the jury. Fleming is free to raise any such objections if and when the impeachment evidence is offered at trial, at which time I will rule on its admissibility in the context of trial.
C. Expert Motion
Lastly, Fleming seeks pursuant to Federal Rule of Evidence 702 to exclude two categories of expected testimony by Tucker: (i) testimony regarding alleged violations of the Town’s electronic weapons control (“EWC”) policy and Maine Criminal Justice Academy (“MCJA”) standards, on the basis that Tucker lacks sufficient foundation to testify as to those matters, and (ii) testimony regarding the “consensual encounter” and the unreasonableness of the use of force pursuant to the Fourth Amendment, on the basis that it would constitute inadmissible instruction on the law. See Expert Motion at -.
I decline to exclude the EWC and MCJA testimony for lack of adequate foundation. “When the adequacy of the foundation for . . . expert testimony is at issue, the law favors vigorous cross-examination over exclusion.” Zuckerman v. Coastal Camps, Inc., 716 F.Supp.2d 23, 28 (D. Me. 2010) (citation and internal quotation marks omitted). “If the factual underpinnings of the expert’s opinions are in fact weak, that is a matter affecting the weight and credibility of [the expert’s] testimony.” Id. (citation and internal punctuation omitted). “It is only if an expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury that such testimony must be excluded on foundational grounds.” Id.
Tucker’s curriculum vitae indicates that he was an adjunct professor of criminal justice at the University of Maine at Augusta from 2000 to 2004 and has provided criminal justice training at the MCJA. See Appx. A (commencing on page 11 of ECF No. 49-2) to Affidavit of Melvin L. Tucker (“Tucker Aff.”) (commencing on page 6 of ECF No. 49-2), attached to Plaintiff[s’] Response to Defendants’ Statement of Material Facts (“Plaintiffs’ Opposing SMF”) (ECF No. 49-1), attached to Plaintiffs’ Response to Defendants’ Motion for Partial Summary Judgment ...