NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 19-3267 ______

THOMAS A. WOOD; MELISSA WOOD

v.

TROOPER PRESTYN K. SHOWERS, in their individual capacities; TROOPER TIMOTHY M. WESESKY, in their individual capacities

Thomas A. Wood,

Appellant ____________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 4-16-cv-01923) District Judge: Honorable Matthew W. Brann ____________

Submitted under Third Circuit LAR 34.1(a) April 24, 2020

Before: PHIPPS, RENDELL, and FISHER, Circuit Judges.

(Opinion Filed: August 21, 2020) ____________

OPINION* __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.

Thomas Wood appeals a jury verdict that rejected his excessive force claims

against two Pennsylvania State Troopers. Wood sued those troopers for their role in

‘bear hugging’ him and taking him to the ground after he, a diabetic in a suicidal state,

had overdosed on insulin in the middle of the night and refused to get in an ambulance.

As a result of that encounter, Wood sustained a broken ankle, which required several

surgeries, and he sought at least $150,000 in compensatory damages along with punitive

damages. To prove his case, Wood retained an expert witness to testify that the troopers’

use of force was greater than required for a non-threatening citizen and that, had the

troopers followed crisis management techniques, Wood would have avoided injury. The

troopers moved to exclude the expert from testifying, and the District Court issued an

order granting that motion. Wood now challenges that order.

As a case under a federal civil rights statute,

, for violations of

the Fourth Amendment, this action was within the District Court’s original jurisdiction.

See

, 1343(a)(3). In exercising jurisdiction over a timely appeal of a

final judgment, see

, we will affirm the judgment because the District

Court did not abuse its discretion in excluding the proffered expert testimony. See Gen.

Elec. Co. v. Joiner,

(1997); see also Pineda v. Ford Motor Co.,

(3d Cir. 2008).

I

To support his excessive force claims against the troopers, Wood retained an

independent consulting criminologist and professor emeritus, Dr. R. Paul McCauley, as

2 an expert witness. Dr. McCauley produced an expert report in which he recounted the

facts as he understood them. From there, that report set forth the legal framework

established by the Supreme Court in Graham v. Connor,

(1989), for

evaluating excessive force claims. The report also reviewed the use-of-force policies

from the International Association of Chiefs of Police and the National Institute of

Justice, but the report contained no explanation about those organizations or how they

formulated their use-of-force standards. Under those organizations’ standards, the report

explained, the troopers did not use accepted crisis-management tactics, and if they would

have done so, they could have de-escalated the situation without resorting to the use of

force. Ultimately, according to the report, Dr. McCauley would have testified that taking

Wood to the ground was unreasonable under the Graham factors and the use-of-force

policies published by those two organizations.

Before trial began, the troopers moved in limine to prevent Dr. McCauley from

testifying, and the District Court granted that motion. The District Court reasoned that

although Federal Rule of Evidence 704 permits testimony on ultimate issues, Dr.

McCauley’s proposed testimony about the law was inadmissible because it would

“merely tell the jury what result to reach.” Slip Op. at 3 (quoting Fed. R. Evid. 704

advisory committee note). In further explanation, the District Court determined that the

testimony about policies promulgated by organizations other that the Pennsylvania State

Police would not fit the issues in the case, which concerned the conduct of two state

troopers. Slip Op. at 4. As part of its analysis, the District Court visited the website of

the International Association of Chiefs of Police to learn about the organization. See Slip

3 Op. at 4.

Wood argues that the District Court erred in six respects. His two primary

challenges assert that the District Court erred by excluding Dr. McCauley’s testimony

because it (i) substituted its own judgment for the standards upon which an expert could

rely and (ii) improperly excluded evidence on the use of force against an emotionally

disturbed person. Wood also argues that the District Court erred as a matter of

procedure by (iii) conducting internet research about the International Association of the

Chiefs of Police to make a credibility determination. Finally, Wood contends that the

District Court erred by making three new rules of law: (iv) that expert testimony in

reliance on the standards from the International Association of the Chiefs of Police is

inadmissible; (v) that to qualify as an expert on a trooper’s conduct, the expert must have

knowledge of the procedures that govern the Pennsylvania State Police; and (vi) that

different standards apply to the troopers’ conduct than municipal police officers.

II

A

At the core of Wood’s first two challenges is the question of whether an expert

may testify about the application of legal standards or other policies to the facts before

the jury.

The rule against testimony on governing law partially answers that question. It is

the province of a judge – not an expert witness – to instruct a jury about governing law.

See Berckeley Inv. Grp. v. Colkitt,

, 217 (3d Cir. 2006) (explaining that “the

District Court must ensure that an expert does not testify as to the governing law of the

4 case . . . because it would usurp the District Court’s pivotal role in explaining the law to

the jury”); United States v. Leo,

(3d Cir. 1991) (explaining that “it is

not permissible for a witness to testify as to the governing law since it is the district

court’s duty to explain the law to the jury”). Because Dr. McCauley sought to testify

about the application of the Graham factors, which govern excessive-force claims, the

District Court did not err in excluding that component of his testimony.

But Dr. McCauley sought to testify about more than just the Graham factors. He

was prepared to share his conclusions that the troopers’ conduct fell short of standards

promulgated by the International Association of Chiefs of Police and the National

Institute of Justice. Unlike testimony regarding governing law, that kind of testimony

may be permitted if its proponent meets the burden of establishing its admissibility. See

Padillas v. Stork-Gamco, Inc.,

(3d Cir. 1999). Procedurally, in a

civil case, a retained expert must produce a report providing a “complete statement of all

opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P.

26(a)(2)(B)(i). Substantively, an expert must be qualified and offer reliable testimony

that fits the case. See Fed. R. Evid. 702; Daubert v. Merrell Dow Pharms., Inc.,

(1993). The reliability of an expert’s conclusions and opinions hinges on the

reliability of the expert’s methodology. See Fed. R. Evid. 702(c) (requiring expert

testimony to be “the product of reliable principles and methods”).

In light of those principles, the District Court did not abuse its discretion in

excluding the remainder of Dr. McCauley’s proposed testimony. His expert report did

not establish the reliability of the policies promulgated by the International Association of

5 Chiefs of Police or the National Institute of Justice. It did not describe those

organizations, the process by which they developed their standards, or the general

acceptance of those standards. Without that information or other evidence of reliability,

see Daubert,

, Dr. McCauley did not provide a basis for concluding

that his proposed testimony was the product of reliable principles and methods for

determining whether an officer used excessive force. And absent such a showing, his

proposed testimony was correctly excluded.

The Dissenting Opinion characterizes this conclusion as the product of a

“rigorous, inflexible approach.” Dissent Op. at 3. Instead, the Dissent conceives of a

much lower bar for expert testimony, one where “flaws in [an expert’s] testimony,” such

as the reliability of an expert’s principles and methods, would be primarily a question for

the jury and would not be screened by the trial judge. See

But that is not the legal

standard. In Daubert, the Supreme Court explained that while a trial judge has flexibility

in assessing an expert witness’s reliability, “[t]he focus, of course, must be solely on

principles and methodology . . . .”

; see also Kumho Tire Co. v.

Carmichael,

(1999) (Scalia, J., concurring) (“[T]rial-court

discretion in choosing the manner of testing expert reliability . . . is not discretion to

abandon the gatekeeping function . . . [and] it is not discretion to perform the function

inadequately.”). Lest that admonition go unheeded, the amendments to Rule 702 added

four conditions for expert testimony – two of which specifically address “principles and

methods.” Fed. R. Evid. 702(c)-(d); see also Amendments to the Rules of Federal

Evidence, H.R. 154 Doc. No. 106-225, at 41-53 (2000). Most relevant here is the

6 requirement in Rule 702(c) that expert testimony be “the product of reliable principles

and methods.” Fed. R. Evid. 702(c). And yet Dr. McCauley’s report did not provide any

background on the two organizations that developed policing standards; the report did not

explain the methods by which those organizations developed those standards; it did not

address whether those standards were ever tested or subjected to peer review; nor did it

comment on the general acceptance of those standards. A trial judge does not abuse his

or her discretion by excluding testimony from an expert whose methodology lacks so

many indicia of reliability.

Rather than confront those omissions, the Dissent accepts Dr. McCauley’s reliable

application of those two organizations’ policing standards to this case, see Dissent Op.

at 2. But satisfying that requirement, see Fed. R. Evid. 702(d), does not cure the

deficiencies in Dr. McCauley’s methodology as this Circuit long ago explained, “any step

that renders the analysis unreliable under the Daubert factors renders the expert’s

testimony inadmissible.” In re Paoli R.R. Yard PCB Litig.,

(3d Cir.

1994).

B

Perhaps due to the critical deficiencies in the expert report, the District Court

visited the webpage of the International Association of Chiefs of Police to learn about the

organization. Wood argues that doing so was improper because it was not the judge’s

role to make credibility determinations. That contention fails. Evaluating the reliability

of an expert’s methodology is not a credibility determination but a critical gatekeeping

function for judges – not juries – to perform. See Kumho Tire,

7 (explaining that Federal Rule of Evidence 702 imposes a special obligation upon a trial

judge to “ensure that any and all scientific testimony . . . is not only relevant, but

reliable” (quoting Daubert,

)); see also Daubert,

(explaining that a trial judge must make “a preliminary assessment of whether the

reasoning or methodology underlying the testimony is scientifically valid and of whether

that reasoning or methodology properly can be applied to the facts in issue”).

Nonetheless, as gatekeepers, judges do not have free rein to consider internet

content – even information about an organization from its own homepage. Rather, sua

sponte judicial research on a question of fact must still meet the standard for judicial

notice, which requires an absence of a “reasonable dispute” about the fact. Fed. R.

Evid. 201(b); cf. Kumho Tire,

(“[T]he trial judge must have considerable

leeway in deciding in a particular case how to go about determining whether particular

expert testimony is reliable.”). But here, the outcome of that inquiry – the propriety of

judicially noticing facts from an organization’s online profile – is inconsequential. Dr.

McCauley failed to establish the reliability of his methods, and his opinions were not

admissible.

C

Finally, by arguing that the District Court incorrectly established three new rules

of law, Wood takes on too much. A district court cannot issue decisions of binding

precedential weight, and thus the District Court’s orders in this case are just that – rulings

applied to the facts of one case. See, e.g., Farley v. Farley,

(3d Cir.

1973) (noting that a district court’s decision does not create binding precedent). And

8 under an abuse of discretion standard, inconsistencies between evidentiary rulings among

district courts are not fatal, or even unexpected: as long as their decisions are not

“manifestly erroneous,” district courts may make contrary evidentiary rulings in different

cases. Joiner,

. Of course, certain errors, such as a “clearly erroneous

finding of fact, an errant conclusion of law or an improper application of law to fact,”

uniformly constitute an abuse of discretion. Pineda,

(quoting In re TMI

Litig.,

(3d Cir. 1999)). But no such error is present here; Dr.

McCauley did not meet his burden of establishing a reliable methodology for his expert

testimony.

***

For these reasons, we will affirm the judgment of the District Court.

9 Thomas Wood and Melissa Wood v. Trooper Prestyn K. Showers and

Trooper Timothy M. Wesesky

No. 19-3267

RENDELL, Circuit Judge, dissenting in part:

The Majority concludes that the District Court simply fulfilled its role as gatekeeper.

I disagree. In my view, the relatively low threshold requirement for the admissibility of

expert testimony was satisfied in these circumstances, and the District Court went well

beyond its gatekeeping role in conducting independent internet research without notice to

the parties and relying on it in declaring the testimony inadmissible. Because I would find

that the District Court abused its discretion in excluding Dr. McCauley’s testimony

regarding proper police procedures, I respectfully dissent.1

1 I agree with the Majority’s conclusion that the District Court correctly barred Dr. McCauley’s testimony to the extent that he offered views concerning the application of the Graham factors to the excessive force claim, which would have essentially been a legal conclusion. But I find that the remainder of Dr. McCauley’s testimony, which We generally take a “liberal approach to admitting expert testimony” and have

“eschewed imposing overly rigorous requirements of expertise.” Holbrook v. Lykes Bros.

S.S. Co.,

, 781, 782 (3d Cir. 1996); In re Paoli R.R. Yard PCB Litig.,

(3d Cir. 1994). Indeed, expert testimony should be admitted as long as there is a

“logical basis for an expert’s opinion testimony.” Breidor v. Sears, Roebuck & Co.,

(3d Cir. 1983).

Here, a logical basis supported Dr. McCauley’s testimony. He reviewed the case

materials, analyzed the facts, and referred to the International Association of Chiefs of

Police (IACP) model policies and procedures to support his conclusion that the defendant

officer did not act appropriately in responding to this non-criminal medical-assist police

call. Dr. McCauley provided an overview of proper police protocol in medical-assist

situations involving emotionally distressed persons and emphasized that, here, the plaintiff

was nonthreatening and potentially suicidal. Applying the IACP model procedures, Dr.

related to proper police procedures, could have provided helpful information to the jury and should have been admitted.

2 McCauley concluded that the defendant ignored widely accepted police procedures by

using physical force before attempting to de-escalate the situation.

Because there was a logical basis for Dr. McCauley to refer to model police

procedures to explain the de-escalation practices officers should follow in medical-assist

situations, and because that information could have been helpful for the jury to understand

the appropriate actions for police officers to take in such situations, the testimony should

have been admitted. See United States v. Hall,

(7th Cir. 1996) (“The

test of Rule 702 is whether the testimony will assist the jury.”). Indeed, we have declined

to “automatically discount . . . [the] presumption[] . . . that official police department

policies may be considered among other things in the reasonableness inquiry.” Johnson v.

City of Phila.,

(3d Cir. 2016). Courts must take a practical approach to

admitting expert testimony and apply the standards of admissibility flexibly based upon

the facts of the case and the complexity of the issue. See Karlo v. Pittsburgh Glass Works,

LLC,

(3d Cir. 2017); Heller v. Shaw Indus., Inc.,

(3d

Cir. 1999). This was not the type of issue where a jury must heavily rely upon the expert’s

testimony to understand complex scientific concepts. Instead, it involved a straightforward

3 application of model police procedures to the officer’s use of force. Thus, the rigorous,

inflexible approach taken by the Majority in critiquing Dr. McCauley’s “methodology” is

misplaced. Any flaws in his testimony could have been pursued on cross-examination and

assessed by the jury.

Further, I find that the District Court abused its discretion when it conducted

independent internet research—without providing notice to the parties or providing the

parties an opportunity to address this research—and relied upon that research to completely

exclude Dr. McCauley’s testimony. Based on the internet research, the District Court

inferred that the IACP procedures are inferior to Pennsylvania State Police (PSP)

procedures, and therefore, Dr. McCauley’s reliance upon IACP procedures warranted

exclusion. The District Court reasoned that Dr. McCauley’s testimony should be excluded

because the information about the propriety of the defendant’s actions could be elicited

“more effectively” by directly questioning the defendant officer about PSP procedures.

App. 6. Similarly, the District Court reasoned that Dr. McCauley’s testimony may have

been admitted if he had referenced the PSP procedures or if he were a former Pennsylvania

state trooper instead of a former municipal police officer.

4 In making this determination, the District Court invaded the province of the jury.

See Breidor,

(noting that “the credibility and weight” of an expert’s

testimony must “be determined by the jury, not the trial judge.”). Whether the IACP

procedures are the best or most well-respected police procedures is irrelevant for purposes

of admissibility; any challenges to the “facts and assumptions” underlying Dr. McCauley’s

testimony should have been addressed during cross-examination and weighed by the jury.

Stecyk v. Bell Helicopter Textron, Inc.,

(3d Cir. 2002); see also Oddi v.

Ford Motor Co.,

(3d Cir. 2000) (“The test of admissibility is not

whether a particular scientific opinion has the best foundation or whether it is demonstrably

correct.”). I therefore conclude that the District Court did not exercise the proper

gatekeeping function in excluding Dr. McCauley’s testimony.

For these reasons, I respectfully dissent.

5