United States District Court, D. Maine
BRITTANY IRISH, individually and as personal representative of the estate of KYLE HEWITT, deceased, and KIMBERLY IRISH, Plaintiffs,
DETECTIVE JASON FOWLER, et al. Defendants.
ORDER ON MOTION TO EXCLUDE D.P. VAN BLARICOM
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Court denies defendants' motion to exclude the expert
testimony of D.P. Van Blaricom, concluding that the proposed
expert testimony is generally proper under Daubert
and Kumho and that any inadequacies are best tested
through the traditional tools of trial work:
“[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of
proof.” Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 596 (1993).
case arises out of a terrible tragedy that took place in
Aroostook and Penobscot Counties, Maine, in July of 2015,
when Anthony Lord, the former boyfriend of Brittany Irish,
entered her house, shot and killed her new boyfriend, shot
and grievously wounded her mother, and abducted her. Ms.
Irish, her mother, and the estate of her deceased boyfriend
filed a civil action against the state of Maine, the Maine
State Police, and a number of police officers on the ground
that, despite explicit warnings from Ms. Irish, the police
notified Mr. Lord that she had gone to the police to complain
that he had sexually assaulted her and then the Defendants
failed to protect them from the ensuing harm.
March 1, 2017, the Court of Appeals for the First Circuit
vacated this Court's dismissal of the individual
defendants and remanded the case for discovery on whether the
individual defendants violated “accepted norms of
police procedure” and whether they acted “despite
foreseeing the harm” to the Plaintiffs. Irish v.
Maine, 849 F.3d 521, 528 (1st Cir. 2017). The First
Circuit wrote that the answers to these questions will
“speak to whether the officers acted in deliberate
indifference to Irish's safety, so much so that their
conduct shocks the conscience.” Id.
the remand, the parties engaged in discovery and after the
Court consulted with the parties, it resolved that it would
be more efficient to rule on any Daubert/Kumho
motions before the parties briefed dispositive motions.
Order (ECF No. 58). The Plaintiffs designated D.P.
Van Blaricom as their police practices expert on June 13,
2017 and amended his report on October 11, 2018.
Defs.' Mot. to Exclude D.P. Van Blaricom Attach.
1, Report of Pls.' Police Practices Expert (ECF
No. 59). On December 14, 2018, the Defendants filed a motion
to exclude the testimony of D.P. Van Blaricom on the grounds
that he “is not qualified and his opinions are not
relevant, helpful, or grounded in a reliable
methodology.” Defs.' Mot. to Exclude D.P. Van
Blaricom (ECF No. 59) (Defs.' Mot.). On
January 11, 2019, the Plaintiffs filed a response.
Pls.' Obj. to Defs.' Mot. to Exclude D.P. Van
Blaricom (ECF No. 62) (Pls.' Opp'n). On
January 25, 2019, the Defendants filed a reply.
Defs.' Reply in Support of Mot. to Exclude D.P. Van
Blaricom (ECF No. 67) (Defs.' Reply).
D.P. Van Blaricom
Curriculum Vitae: A Summary
Van Blaricom graduated with a Bachelor of Arts degree magna
cum laude from the University of Washington in 1973.
Def.'s Mot. Attach. 1, Ex. A at 11 (Van
Blaricom CV). He received a Master of Public
Administration from Seattle University in 1976. Id.
He is a graduate of the Federal Bureau of Investigations
National Academy in Law Enforcement Executive Development
programs. Id. He holds a certificate in forensics
awarded in 2000 from the University of Washington and he has
been certified as a litigation specialist by Americans for
Effective Law Enforcement. Id.
Blaricom served twenty-nine years in municipal policing, with
the last eleven as Chief of Police in Bellevue, Washington,
then the state of Washington's “fourth largest and
fastest growing city.” Id. at 10.
Experience as a Police Practices Expert
Blaricom states that he has served as a police practices
expert in more than 1, 900 matters of police-related
litigation. Id. at 3, 9. He lists forty-six states
where he has been retained as an expert in litigation
involving police practices and states that he has testified
in “several hundred depositions, federal court trials,
state court trials and arbitrations.” Id. at
9. He is a member of several professional associations.
Id. at 15.
D.P. Van Blaricom's Expert Opinions: A Summary
Blaricom opines that Maine State Police (MSP)
“Detectives Perkins and Fowler did not exercise a
reasonable standard of care in their investigation of
victim's crime report.” Id. at 6. He
stated that when investigating complaints of sexual assault
or domestic violence, the priorities are to “[b]elieve
the victim” and to “[p]rotect the victim from
further violence.” Id. Mr. Van Blaricom wrote
that Detectives Perkins and Flower violated these two
priorities. Id. He also stated that the “first
priority is to locate the suspect and take him into
custody.” Id. Mr. Van Blaricom wrote that, in
his view, the police in this case assumed a special duty to
plaintiffs, which they failed to fulfill.” Id.
THE POSITIONS OF THE PARTIES
The Defendants' Motion
D.P. Van Blaricom's Expertise
Defendants maintain that Mr. Van Blaricom is not qualified to
express opinions about police procedure. Defs.'
Mot. at 4. The Defendants concede that Mr. Van Blaricom
“may have enough experience to opine about certain
areas of police practice.” Id. But they assert
that he “does not have sufficient expertise regarding
conducting investigations of sexual assaults and other major
crimes.” Id. They point out that Mr. Van
Blaricom has “neither personally conducted a sexual
assault investigation nor received any training in how to
conduct such an investigation.” Id. They
observe that Mr. Van Blaricom has not worked in law
enforcement since 1985. Id. The Defendants argue
that “[g]iven his limited and outdated experience,
[Van] Blaricom is not qualified to opine on whether MSP
detectives properly investigated Brittany's sexual
assault and kidnapping allegations.” Id.
D.P. Van Blaricom's Opinions are Irrelevant and
Defendants first attack Mr. Van Blaricom's opinion about
whether Detectives Fowler and Perkins “exercised a
‘reasonable standard of care' when they were
investigating [Ms. Irish's] sexual assault and kidnapping
accusations.” Id. at 5. The Defendants point
out that the Plaintiffs are bringing only § 1983 claims,
not state law negligence or malpractice claims. Id.
They argue that the issue for a § 1983 claim is whether
the defendants “violate[d] clearly established
statutory or constitutional rights of which a reasonable
person would know.” Id. (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
Defendants acknowledge that the First Circuit remanded this
case to determine whether they “violated accepted norms
of police procedure, ” id. (quoting
Irish, 849 F.3d at 528, but they maintain that Mr.
Van Blaricom's opinion is “not helpful because he
does not opine that the defendant violated such norms.”
Id. Even when Mr. Van Blaricom measures the
Defendants' conduct against standards established by the
International Association of Chiefs of Police (IACP), the
Defendants argue that Mr. Van Blaricom conceded that the IACP
standards themselves expressly state that they are not
intended to be a national standard. Id. Instead,
police officers are required, the Defendants say, to follow
their own department guidelines. Id. Moreover, the
Defendants state that Mr. Van Blaricom never identified any
“obvious departure” that either Defendant made
from the IACP model policies. Id. at 5-6.
Defendants acknowledge that Mr. Van Blaricom referred to an
MSP policy entitled “Maine State Police Policy
Regarding Response to and Investigation of Domestic Violence
Incident, ” the so-called “M-4 policy.”
Id. at 6. Here, the Defendants claim that a
factfinder “does not need help from an expert to assess
whether the defendants departed from it.” Id.
Defendants next maintain that Mr. Van Blaricom's opinions
are unreliable. Id. They argue that he
“selectively picked” facts and assumed them to be
true, and then “arbitrarily rejected” other facts
and wrongly assumed them to be false. Id. They cite
the opinions of other courts that have called into question
Mr. Van Blaricom's methodology. Id. at 7-9
(citing cases). They recite specific instances where they say
Mr. Van Blaricom selectively manipulated the facts in this
case. Id. at 9-10.
the Defendants argue that Mr. Van Blaricom should not
“be allowed to opine that police officers assume a duty
to protect people from private harm when they promise
protection.” Id. at 10. Citing First Circuit
authority, the Defendants contend that the First Circuit has
declined to impose liability on law enforcement officers in
similar circumstances. Id. (citing Rivera v.
Rhode Island, 402 F.3d 27, 37-38 (1st Cir. 2005)).
The Plaintiffs' Response
their opposition, the Plaintiffs return to the First Circuit
opinion in this case. Pls.' Opp'n at ...