United States District Court, E.D. Pennsylvania
R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE.
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.”),  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). 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.
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
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.
LEGAL STANDARD - MOTION FOR A NEW TRIAL
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
(A) after a jury trial, for any reason for which a new trial
has heretofore been granted in an action at law in federal
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).
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.
Dr. Jonathan Arden
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.
Background and Context
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.)
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).
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.
The Timeliness of Plaintiff's Motion in Limine to Bar Dr.
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
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
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.
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
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.
Dr. Arden's Tenure At The WOCME
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
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.)
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.)
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. (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.)
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.
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