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Taylor v. Police Officer Larry Shields

United States District Court, E.D. Pennsylvania

June 19, 2017





         Presently before the Court is Plaintiff Joshua Taylor's Motion for New Trial and accompanying memorandum (Doc. No. 95) (“Pl. Br.”), Plaintiff's Supplemental Brief in Support of Motion for New Trial (Doc. No. 112) (Pl. Supp. Br.”), Defendant's Response in Opposition (Doc. No. 98) (“Def. Br.”), Defendant's Supplemental Response in Opposition to Motion for New Trial (Doc. No. 113) (“Def. Supp. Br.”), [1] Plaintiff's Supplemental Brief Regarding the Applicability of Los Angeles v. Mendez to the Instant Case and Pending Motion for New Trial (Doc. No. 118), and Defendant Police Officer Larry Shields' Reply in Opposition to Plaintiff's Second Supplemental Brief Upon Plaintiff's Motion for New Trial (Doc. No. 119).[2] Upon consideration of the materials presented and the extensive oral argument held on May 15, 2017, and for the reasons set out within this memorandum, we deny Plaintiff's motion.


         This was a civil case arising out of a shooting which took place on April 25, 2011, at Plaintiff's home on Worth Street, Philadelphia, where Plaintiff Joshua Taylor (“Plaintiff” or “Taylor”) was shot and seriously injured by Defendant Police Officer Larry Shields (“Defendant” or “Shields”). At trial, Taylor claimed that Shields used excessive force by pursuing him into his home and shooting him in the chest in front of his family. Taylor sought to recover damages against Shields for violating his Fourth Amendment right to be free from an unlawful seizure of his person brought about by the shooting. Shields argued that the shooting was justified by Taylor confronting him in the doorway and pointing a gun directly at him. Taylor now seeks the entry of an order granting him a new trial asserting several claims of trial court error.

         The evidence in this excessive force claim was presented to an eight person jury from November 1 to November 4, 2016. Closing arguments, jury instructions, and jury deliberations took place on November 7, 2016. The jury returned a verdict for Officer Shields, finding that his use of excessive force was justified. Taylor's new trial motion has followed and is now ripe for resolution.


         It is well settled that the “ordering of a new trial is committed to the sound discretion of the district court.” Bonjorno v. Kaiser Aluminum & Chem. Corp., 752 F.2d 802, 812 (3d Cir. 1984). Fed.R.Civ.P. 59(a) sets forth the grounds under which motions for new trial may be considered. It provides in relevant part:

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues . . . as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court

         Fed. R. Civ. P. 59(a). In considering the merits of a motion for a new trial based on an asserted error of law, as here, the court must determine whether an error was made and if so determine “whether that error was so prejudicial that refusal to grant a new trial would be ‘inconsistent with substantial justice.'” Farra v. Stanley-Bostitch, Inc., 838 F.Supp. 1021, 1026 (E.D.Pa.1993) (citing Bhaya v. Westinghouse Elec. Corp., 709 F.Supp. 600, 601 (E.D.Pa.1989)). The district court shall be given “wide latitude” in making a determination where “the reason for interfering with the jury verdict is a ruling . . . that initially rested within the discretion of the court such as an evidentiary ruling or jury instruction.” Kiss v. Kmart Corp., 2001 WL 568974, at *1 (E.D. Pa. May 22, 2001) (citations omitted); Ries v. CSX Transp., Inc., 2000 WL 377509, at *1 (E.D. Pa. Mar. 29, 2000).


         In his motion, Taylor asserts that the Court erred in excluding certain evidence which he offered based on his view that it pertained to the qualifications and reliability of defense expert Dr. Jonathan Arden and further erred by permitting the jury to hear the testimony of Dr. Arden. Taylor also contends that the Court erred in issuing conflicting rulings regarding the use of the Philadelphia police department's off-duty policy, Memorandum 98-1, during trial. We discuss the issues concerning Dr. Arden first.

         A. Dr. Jonathan Arden

         We begin by setting out some background regarding Dr. Arden, his credentials, his report, and how Shields proposed to make use of certain impeachment evidence in the case. We next consider Taylor's procedural objection concerning his earlier motion in limine to preclude the testimony of Dr. Arden. We then review Taylor's substantive objections concerning Dr. Arden's qualifications, methodology, and opinions.

         1. Background and Context

         On November 28, 2015, within the parameters of the Court's scheduling order, Shields supplemented his Rule 26 disclosures by identifying Dr. Jonathan L. Arden, M.D., a forensic pathologist, as a defense forensics expert. (Doc. 52-1, Exh. A, at 2.) Defense counsel attached Dr. Arden's curriculum vitae (“CV”) and the subject matter of his proposed evidence to the disclosure. (Id.) On May 11, 2016, Shields served Dr. Arden's report on counsel for Plaintiff. (Doc. 52-1, Exh. C, at 24-32.) Shields offered Dr. Arden to testify about the gunshot wound to Taylor. (Id. at 28.) Specifically, Dr. Arden compared the two different scenarios offered by Taylor and Shields in order to determine the consistency of their accounts of the shooting with the trajectory of Taylor's gunshot wound. (Id.)

         Dr. Arden's CV showed that he completed a medical residency in anatomic pathology at New York University from 1980 to 1983. (Doc. No. 52-1, Exh. A., at 8.) He received training in forensic pathology at the Office of the Chief Medical Examiner for the State of Maryland from 1983 to 1984. (Id.) He came to be certified in both specialties by the American Board of Pathology, and is licensed to practice medicine in five states. (Id. at 9.) He has also published articles and lectured on forensic pathology. (Id. at 10-12.) He worked for twenty years as a government-employed medical examiner, including five years as the Chief Medical Examiner of Washington D.C. (“WOCME”) (Id. at 8.) He currently provides consulting services in forensic pathology and medicine, and has a part-time appointment as a forensic pathologist in the Office of the Chief Medical Examiner for the State of West Virginia. (Id.) Dr. Arden has testified over 800 times as an expert witness, “concerning the determination and analysis of bullet trajectories within bodies, including the assessment of the relative positioning between a gun and the person shot by the gun.” (Doc. No. 52-2, Exh. E, at 6, ¶ 7).

         In this case, Dr. Arden sought to determine which version of the shooting was consistent with physical evidence of the trajectory of the bullet: Taylor's claim that he was lying on the ground when Shields shot him or Shields' claim that Taylor was standing upright pointing a gun at him when he shot. (Doc. No. 52-1, Exh. C, at 28.) Dr. Arden explained that a review of the CT scan taken of Taylor on May 4, 2011, revealed that the bullet entered his body “approximately at his xyphoid, which is the front surface of the body, and came to rest in his right-rear ribcage, at a level slightly lower (i.e., closer to the feet) than the entrance point, so the trajectory was backward, to the right, and downward, relative to the body.” (Id.) (emphasis added). Dr. Arden further explained that in addition to this CT scan, he also considered the approximate distance between the gun and Taylor, the angle at which the gun was pointed at Taylor, the depth of Taylor's torso, and the height of the gun above the floor and the angulation relative to the floor of the front of Taylor's torso. (Id.) Using these factors, Dr. Arden created the following diagram of a side-view of the shooting scenario as offered by Taylor: (Image Omitted.) (Id. at 31.) Dr. Arden opined that under the scenario offered by Taylor, the bullet trajectory would have traveled in an upward angle relative to his body; which, he opined would have been contrary to the downward trajectory of the bullet path in Taylor's torso. (Id. at 29.) He explained that:

In fact, an informal, common sense approach to this scenario yields the same result . . . . Both by the common sense approach and by manipulating the factors in the scale diagram, the target surface of the front of the body would have to be sitting up at nearly 90° angle in order to create a downward trajectory of the gunshot wound.

(Id.) In short, he concluded that while Taylor's version of the shooting would be inconsistent with the objective medical evidence of his gunshot wound, Shields' version was consistent with the objective evidence. (Id.)

         2. The Timeliness of Plaintiff's Motion in Limine to Bar Dr. Arden

         Before considering the substantive objections presented by Taylor, we address the procedural posture of this motion. On December 21, 2015, the Court issued an amended Scheduling Order, stating that “[a]ll . . . Daubert motions shall be filed no later than June 20, 2016.” (Doc. 37, ¶ 3 (emphasis in original).) On May 11, 2016, Shields served the Arden report on Plaintiff's counsel. See Doc. 52-1, Exh. C, at 25. On September 30, 2016, over three months after the June 20, 2016 deadline, Taylor filed his motion in limine seeking to preclude the testimony of Dr. Arden. See Doc. 48. The motion failed to address its delayed filing. On October 11, 2016, Shields filed a response to the motion seeking to dismiss it, in pertinent part, as untimely. (Doc. 52, at 2.) On October 13, 2016, Taylor filed a reply arguing that the Court, in its gatekeeper function, had the authority to consider limine motions at any time. (Doc. 57, at 3-4.) Taylor also argued that it sought relief not only based on Daubert but also upon Fed.R.Evid. 401 and 403. (Doc. 57, at 3-4.) On October 21, 2016, after consideration of the extensive briefing by the parties as well as the oral argument before the Court on October 20, 2016, and for the reasons discussed at oral argument, we denied the motion. (Doc. No. 72.) We explained that the motion was out of time and that Taylor failed to set out any “good cause” or “excusable neglect” for that untimely filing. See Fed. R. Civ. P. 6(b)(1) and 16; Doc. No. 72. We also noted that the concerns raised by Taylor could be appropriately addressed on cross-examination of Dr. Arden. (Id.) We elaborated on this point in the oral argument, stating that despite the untimely filing, we still reviewed the report and concerns raised by Taylor and concluded:

I have to conclude that if the answer was that anything can come [in] - you know, regardless of how frivolous the expert opinion might be, regardless if it was absolutely classified based upon junk science, that doesn't sound right to me. But to the contrary, I can't have - we can't have lawyers just, you know, ignoring the Rule 16 order, and the timing and the consequence of the Rule 16 orders. They're there for a reason . . . you had the report for several months before the deadline ran . . . [and it] wasn't provided until somewhat later. I'm inclined to allow them to go forward with respect to Arden, and I also think that there's - from what I'm seeing from the review of the report and the way in which you addressed it in the papers, that those things that you - those questions that you raised . . . are questions that could very effectively be raised by way of cross examination.

(Doc. No. 112, Pl. Supp. Br., Exh. 2, at 15) (emphasis added).

         Taylor argues that the Court should not have denied his untimely motion in limine on procedural grounds. (Pl. Br. at 29.) We are unable to accept this proposition as we will not ignore the significance of case management and the benefits it brings to the litigation process. The Third Circuit has explained that: “scheduling orders are at the heart of case management. If they can be disregarded without a specific showing of good cause, their utility will be severely impaired.” Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir.1986). At the same time, we acknowledge our responsibility to make certain that evidence to be presented before the jury calling for expert opinions must be properly vetted and must meet the requirements of Fed.R.Civ.P. 702. We will not rest our determination here solely upon the procedural deficiency of Taylor's failure to present his Daubert motion in a timely manner. While we undertook this responsibility prior to ruling on the motion in limine, as detailed by my explanation above during the oral argument, we take this opportunity to more fully detail our reasoning on this issue.

         3. Substantive Objections

         Taylor presents two separate but related substantive arguments regarding Dr. Arden's proffered testimony. In his post trial motion papers, he first asserts that he should have been given the opportunity to question Dr. Arden in front of the jury regarding his mismanagement of and departure from the WOCME on the premise that such information was relevant to Dr. Arden's qualifications under Rule 702.[3] Taylor then asserts that Dr. Arden was not qualified under Daubert and Rule 702 to testify regarding ballistics, his methodology was not reliable, and his testimony did not assist the trier of fact. We set out each argument here, provide Shields' response, and conclude with our analysis of the issues.

         a. Dr. Arden's Tenure At The WOCME

         With respect to his first argument, Taylor asserts that a “new trial is warranted because the jury should have heard evidence pertaining to Dr. Arden's departure from the [W]OCME and his mismanagement of the [W]OCME.” (Pl. Br. at 13.) The proffered evidence covered:

1) Arden's mismanagement of the DC Office of the Chief Medical Examiner, including mishandling of bodies, violations of applicable local laws, maintenance of hazardous facilities, failure to make legally-required reports, and failure to properly conduct autopsies according to applicable standards and practices;
2) Allegations of sexual harassment against Dr. Arden's employees;
3) Allegations of race and religious discrimination against Dr. Arden by Dr. Arden's employees and by members of the general public whose family members had passed away;
4) The circumstances regarding Dr. Arden's departure from the DC Office of Chief Medical Examiner, whereby Arden was put on administrative leave and then resigned.

(Id. at 8-9.)

         Taylor asserted that this information was relevant to Dr. Arden's qualifications and his credibility under Federal Rules of Evidence 702 and 608. (Id. at 13-14.) He explained that Shields' counsel used Dr. Arden's WOCME experience to paint him as “supremely qualified” and that the Court erred by precluding Taylor from questioning Dr. Arden in front of the jury as to his management of the WOCME and the reasons for his resignation. (Id. at 13.) Taylor states: “[t]he jury was entitled to know that Dr. Arden was instead a disgraced medical examiner who was forced out of the biggest job he ever had, who had mismanaged the [W]OCME and had violated DC laws in doing so, and who now cannot even get a full-time medical examiner job and is instead relegated to being a part-time examiner in West Virginia.” (Id.) Moreover, Taylor goes on to assert that Dr. Arden's lack of qualification is bolstered by the fact that his methods were “inherently unscientific, ” and that “they contradicted the testimony of Dr. Khan - who stated that the bullet curved inside Plaintiff - and Lt. Nolan - who testified that they were not able to determine Taylor's body positioning due to the lack of an exit wound.” (Id. at 14.)

         Taylor expands this argument, stating that the proffered evidence “bec[ame] even more important when considering the stakes of Dr. Arden's testimony.” (Id. at 15.) Taylor asserts that Dr. Arden was pivotal to the defense as the case centered on a factual dispute - whether Taylor was standing or lying on the ground when Shields approached him - and Shields' only evidence supporting his version of the events was Dr. Arden's testimony. (Id.) As such, according to Taylor, Shields' chief strategy was to make Dr. Arden seem “supremely qualified and reliable.” (Id.) Taylor argues that if the jury had heard his intended questioning of Dr. Arden, it would have undermined Dr. Arden's qualifications, and the jury would have not accepted the evidence presented as reliable.[4] (Id.) He asserts that the jury was entitled to know whether he left voluntarily, if he was forced to leave, and the circumstances involved in this decision as this was relevant to the attack of Dr. Arden's qualifications and his credibility. (Id. at 16.) Accordingly, Taylor contends that there is a “substantial likelihood that the outcome of the litigation would have been different had the jury heard this information.” (Id. at 16-17.)

         Shields responds arguing that the “Court was well within its discretion to exclude that evidence both because the issue was not raised and disclosed in a timely manner, and because the evidence was not relevant impeachment evidence.” (Def. Br. at 4.) He argues that the Court properly excluded the evidence on the grounds that (1) Taylor had failed to previously disclose it; (2) it was not proper impeachment evidence under Rule 608; (3) it was not relevant to the subject matter of Dr. Arden's testimony, and (4) under Fed.R.Civ.P. 403, its introduction would have been distracting and confusing to the jury and its probative value would not have outweighed its prejudicial effect. (Def. Br. at 5.)

         We agree with Shields. Our analysis focuses on whether we erred by not considering the evidence in our determination of whether Dr. Arden should have been permitted to render his opinion at all. We consider the question first with respect ...

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