Explaining Legal Factors, Expert Witnesses Risk Overstepping
Explaining the legal factors relied on in forming an expert opinion is appropriate of expert witnesses during testimony, but mentioning the source of those factors is not, the Arizona Supreme Court has ruled. That leaves expert witnesses with a thin needle to thread for persuasive testimony.
In Ryan v. Napier, Sup. Ct. Az, CV-17-0325-PR 2018, the state Supreme Court vacated the Court of Appeals' opinion and reversed the trial court's judgment, finding that plaintiffs cannot make negligence claims based on an admitted intentional torts, and that the trial court inappropriately permitted the defense expert witness to imply the applicable legal standard.
Susan Ryan, as administrator of the estate of Brian McDonald, sued Mark Napier, Pima County Sheriff; and Joseph Klein, a police officer, for injuries suffered by McDonald after Deputy Klein released his police dog to "bite and hold" McDonald, claiming Klein "negligently released" the dog.
McDonald had been driving near midnight when he swerved into the opposite lane and nearly collided with a patrol car. Police pursued McDonald a short distance as he drove 35 mph. When McDonald stopped with his window down, a police officer got out of his car and began yelling commands at McDonald. McDonald rolled up his car window and drove off. Police deployed road spikes, which McDonald ran over, continuing to drive at the same slow speed. Eventually, McDonald came to a stop and was surrounded by some seven marked police cars and numerous police.
Deputy Klein got out of his car with his police dog, yelling commands at McDonald. McDonald got out of his car, walking slowly toward the rear, putting his hands to rest on top of the car. Video evidence showed that then, as McDonald was placing his hands on top of the car, Klein released the dog which bit McDonald and dragged him to the ground. The dog left "serious injuries and permanent disfigurement."
Subsequently, police found that McDonald had Type 1 diabetes and had been experiencing severe hypoglycemic shock. Police dropped all charges against McDonald.
At trial, Klein admitted that he intentionally released the police dog. Napier moved for summary judgment, arguing that Klein's intentional use of force could not constitute negligence but rather battery. The trial court disagreed.
Over the objections of Napier, McDonald's use-of-force expert witness testified about the Graham factors test for reasonableness in excessive force claims which include:
- The severity of the crime
- Whether the suspect poses an immediate threat to the safety of the officers or others, and
- Whether he is actively resisting arrest or attempting to evade arrest by flight.
McDonald's expert also explained to the jury that the Grahman factors were based on a U.S. Supreme Court case, that they were accepted "nationwide" in law enforcement as the standard for reasonableness and that Klein was trained in them. Under the Graham factors, McDonald's expert testified, Klein did not act reasonably by releasing the police dog on McDonald.
The jury awarded McDonald $617,500 in damages.
Napier appealed, arguing that the case should not have been allowed to proceed as a negligence action but as a battery action, that the burden of proving justification should have been placed on McDonald and not on them, that the trial court incorrectly allowed expert witness testimony about U.S. Supreme Court use-of-force case law, and that state law prohibits damages for injuries inflicted by police dogs.
The majority in a split decision of the Arizona Court of Appeals rejected Napier's arguments, in particular finding that an expert witness did not overstep by testifying that Graham governs the application of the justification defense. Napier appealed.
The state Supreme Court agreed with the appellate court's minority opinion, finding McDonald's expert witness had overstepped: "It is the trial court's role, not the expert's, to instruct the jury on the applicable legal standards."
Central to the state Supreme Court's decision to reverse the trail court was its conclusion that "... if a defendant acts with intent to cause a harmful or offensive touching (battery), that same act cannot constitute negligence." Part of the state Supreme Court's logic was that permitting such a "negligence liability" could permit plaintiffs to "plead around" statutory provisions that apply only to intentional tort claims.
As the state Supreme Court pointed out, public entities like the County Sheriff's Office are generally immune from liability for damages under such intentional tort claims, as well as being shielded from any need to indemnify the employee for any liability imposed. As for employees, the state Supreme Court noted that when a law enforcement officer "intentionally uses physical force" the officer is "presumed to [have been] acting reasonably."
In other words, by rejecting negligence claims, the state Supreme Court was making it far more difficult for plaintiffs to prevail in any similar case, and even if they do, any successful damage awards are far less probable.