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Irish v. Detective Jason Fowler

United States District Court, D. Maine

March 13, 2019

BRITTANY IRISH, individually and as personal representative of the estate of KYLE HEWITT, deceased, and KIMBERLY IRISH, Plaintiffs,
v.
DETECTIVE JASON FOWLER, et al. Defendants.

          ORDER ON MOTION TO EXCLUDE D.P. VAN BLARICOM

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The 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[1] 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).

         I. BACKGROUND

         This 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.

         On 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.

         Following 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).

         II. D.P. Van Blaricom

         A. Curriculum Vitae: A Summary

         1. Education

         D.P. 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.

         2. Police Experience

         Mr. Van 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.

         3. Experience as a Police Practices Expert

         Mr. Van 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.

         B. D.P. Van Blaricom's Expert Opinions: A Summary

         Mr. Van 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.

         III. THE POSITIONS OF THE PARTIES

         A. The Defendants' Motion

         1. D.P. Van Blaricom's Expertise

         The 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.

         2. D.P. Van Blaricom's Opinions are Irrelevant and Unreliable

         The 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)).

         The 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.

         The 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. at 7.

         The 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.

         Finally, 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)).

         B. The Plaintiffs' Response

         In their opposition, the Plaintiffs return to the First Circuit opinion in this case. Pls.' Opp'n at ...


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