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C.F.B. v. Hayden

United States District Court, D. Kansas

August 7, 2019

C.F.B., a minor, by and through her next friend TERRI E. BAKER, Plaintiff,
v.
SHERIFF CALVIN HAYDEN, et al., Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         Plaintiff C.F.B., a minor, by and through her grandmother and next friend, Terri E. Baker, brings this action against Johnson County Sheriff Calvin Hayden, Lieutenant Thomas Reddin, Sergeant Christopher Mills, and Deputy Travis Turner. Plaintiff claims that defendants violated her civil rights under 42 U.S.C. § 1983 when defendants unlawfully seized her from her grandparents' driveway. This matter is now before the court on plaintiff's Motion to Exclude Certain Testimony of Dr. Milfred Dale and Strike Portions of His Expert Report (Doc. 114). Plaintiff alleges that certain testimony of defendants' expert witness, Dr. Milfred Dale, should be excluded as unreliable, irrelevant, or more prejudicial than probative under Federal Rule of Evidence 403. For the reasons set forth below, the court grants plaintiff's motion in part and denies it in part.

         I. Factual Background

         On September 2, 2015, defendants Deputy Travis Turner, Sergeant Christopher Mills, and Lieutenant Thomas Reddin arrived at the home of Linus and Terri Baker with a temporary Protection from Abuse Order meant for their daughter, Maggie McCormick. The order granted sole custody of her child, S.F.M., to her husband, Ryan McCormick. Linus Baker was in the driveway when defendants arrived, along with plaintiff and C.F.B., who is Maggie's child with Austin Banks. Linus demanded the officers leave, but they refused stating “I've got a court order, we're here to take [S.F.M.] . . . she's going with us.” As Linus returned to his house, defendant Mills reached down to pick up plaintiff asking, “are you [S.F.M]? Come here sweetheart.” Plaintiff cried and screamed for her mom, and defendant Mills carried her to a van where Ryan McCormick was waiting to verify if she was the right child. When asked, Ryan responded with “no, [S.F.M.] is a boy.” Defendant Mills then carried plaintiff back onto the property and gave her back to Linus.

         Plaintiff filed the present suit against defendants for unlawful arrest and excessive force. As part of the litigation, plaintiff, as well as several of her caretakers, were evaluated by Dr. Milfred Dale, Ph.D., J.D., a licensed psychologist. Dr. Dale was hired by defendants to conduct a comprehensive evaluation of plaintiff and her caretakers to determine the source, nature, and extent of any mental health injuries or conditions incurred by plaintiff, as well as the nature and extent of any future care and treatment for such injuries. Dr. Dale interviewed plaintiff, Linus and Terri Baker, faculty of plaintiff's school, and conducted multiple surveys and data collection and analysis. As a result, Dr. Dale produced a 50-page report outlining his findings as well as appendices with relevant documents and exhibits.

         Plaintiff now moves to exclude portions of Dr. Dale's expert report because they are either unreliable, irrelevant, or are more prejudicial than probative under Federal Rule of Evidence 403.

         II. Legal Standard

         Federal Rule of Evidence 702 determines the admissibility of expert testimony. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 588 (1993). Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(1) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) the testimony is based on sufficient facts or data;
(3) the testimony is the product of reliable principles and methods; and
(4) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The Tenth Circuit has developed a two-part, gatekeeping test for trial courts to apply when considering whether proposed expert testimony is admissible, which requires the court to determine first, whether the expert is qualified “by knowledge, skill, experience, or education, ” and second, whether the proposed testimony is reliable and relevant. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). The party advancing the expert testimony bears the burden of showing that the testimony is admissible. Nacchio, 555 F.3d at 1241. However, the rejection of expert testimony is the exception rather than the rule. Fed.R.Evid. 702. “[V]igorous cross-examination, presentation of contrary evidence, and careful instruction on ...


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