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Brendon Bondach,*Fn1 v. Joshua T. Faust

August 30, 2011

BRENDON BONDACH,*FN1
PLAINTIFF,
v.
JOSHUA T. FAUST, JORGE A. GONZALEZ, WILLIAM M. HEIM, CITY OF READING AND JOHN DOES, 1-10, DEFENDANTS.



The opinion of the court was delivered by: Perkin, M.J.

MEMORANDUM

Presently before the Court is the Motion in Limine of Plaintiff, Brendon Bondach, to Preclude Defense Expert Testimony (Dkt. No. 46), filed on August 1, 2011, and Defendants' Response in Opposition to Plaintiff's Motion (Dkt. No. 48), filed on August 11, 2011. For the reasons that follow, the Motion is denied.

I. STANDARD OF REVIEW.

An in limine motion "is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions." Sweitzer v. Oxmaster, Inc., No. CIV.A. 09-5606, 2011 WL 721907, *1 (E.D. Pa. Mar. 2, 2011)(quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir.1990) (citation omitted)).

Federal Rule of Evidence 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." F.R.E. 702. The trial judge should act as a gatekeeper to make sure that all expert testimony or evidence is both relevant and reliable. Clark v. Shonk, No. 4:CV-01-200, 2002 WL 34371511, at *1 (M.D. Pa. Feb. 6, 2002)(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kannankeril v. Terminix Int'l Inc., 128 F.3d 802, 806 (3d Cir.1997) (citation omitted)). The Daubert gatekeeping function applies to all expert testimony. Id. (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). "Rule 702 has three major requirements: (1) the proffered witness must be an expert ('qualifications'); (2) the expert must testify about matters requiring scientific, technical, or specialized knowledge ('reliability'); and (3) the expert's testimony must assist the trier of fact ('fit'). Id. (citing Kannankeril, 128 F.3d at 806 (citing In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 741-42 (3d Cir.1994)) and United States v. Mathis, No. 99-5940, 2001 WL 995170, at *11 (3d Cir. Aug. 30, 2001)(citing Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir.2000))).

Although "Rule 702 focuses on an expert's methodology, Rule 703 focuses on the data underlying the expert's opinion." Id. (citing Paoli, 35 F.3d at 747). Federal Rule of Evidence 703 provides, in part, the following:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. . . .

F.R.E. 703. In determining whether Rule 703 reliability should be decided by the court or by experts in the relevant discipline, the Third Circuit instructs that:

[I]t is the judge who makes the determination of reasonable reliance, and that for the judge to make the factual determination under Rule 104(a) that an expert is basing his or her opinion on a type of data reasonably relied upon by experts, the judge must conduct an independent evaluation into reasonableness. The judge can of course take into account the particular expert's opinion that experts reasonably rely on that type of data, as well as the opinions of other experts as to its reliability, but the judge can also take into account other factors he or she deems relevant.

Clark, 2002 WL 34371511, at *1 (quoting Paoli, 35 F.3d at 748.) "[T]he standard is equivalent to Rule 702's reliability requirement-there must be good grounds on which to find the data reliable." Id. at *2 (quoting id.) "If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded." Id. (quoting id. (quoting In re "Agent Orange" Prod. Liab. Litig., 611 F.Supp. 1223, 1245 (E.D.N.Y.1985))).

II. DISCUSSION.

Counsel for Plaintiff moves to preclude the expert testimony of Dr. Stephen Mechanick. Dr. Mechanick is a psychiatrist who examined Plaintiff, reviewed his medical records and rendered an opinion in response to Plaintiff's claim that he suffered emotional damages as a result of a struggle with Defendant police officers at Mr. Bondoch's residence on November 27, 2008. Plaintiff argues that Dr. Mechanick's proposed expert testimony does not meet the reliability requirements of Federal Rules of Evidence 702 and 703 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Plaintiff specifically argues:

At no time does Dr. Mechanick identify any accepted scientific methodology that he used, merely, all Mechanick does is cite purported confliction [sic] portions of the record and makes speculative conclusions concerning: whether Bondach was drinking on the night of the incident; whether Bondach's sister, Bernadette, is credible; whether Bondach is credible; whether Bondach actually incited the beating meted out by Faust and Gonzalez; and whether the police officer Defendants did anything to justify imposition of liability under 42 U.S.C. § 1983.

Mechanik's "methodology" is both personal and idiosyncratic, with obvious scientific flaws. His opinions are nothing more than the ipse dixit of a purported expert, and are not scientifically valid or reliable. He simply selects certain ...


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