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United States v. Harvey

United States District Court, S.D. Mississippi, Northern Division

September 16, 2019

UNITED STATES OF AMERICA
v.
TOMMY JOE HARVEY

          ORDER

          DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE

         The Government says Defendant Tommy Joe Harvey, while serving as Simpson County Chancery Court Clerk, violated 18 U.S.C. § 242 when he pepper-sprayed victim A.R. outside the courthouse. Section 242 prohibits anyone acting “under color of any law” from “willfully” depriving another “of any rights, privileges, or immunities secured or protected by the Constitution.” According to the Government, the pepper-spraying incident violated A.R.'s Fourth Amendment right to be free from excessive force.

         Harvey has designated Dr. Ron Martinelli to offer opinions primarily related to the characteristics of pepper spray and how exposure to it might have affected A.R. Dr. Martinelli is a former law-enforcement officer who holds a Ph.D. in Criminology. He is also a forensic criminologist and a “Certified Medical Investigator, ” though it does not appear that he has any medical training. The question is whether his opinions satisfy Federal Rule of Evidence 702. I. Standard The admission of expert testimony is governed by Federal Rule of Evidence 702, which provides:

         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:

(a) 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;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         Rule 702 “requires trial courts to ensure that proffered expert testimony is ‘not only relevant, but reliable.'” In re Tex. Grand Prairie Hotel Realty, L.L.C., 710 F.3d 324, 329 (5th Cir. 2013) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). “To determine reliability, the trial court must make a ‘preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can properly be applied to the facts in issue.'” Id. (quoting Daubert, 509 U.S. at 590-91).

         The Court should “make certain that an expert, whether basing testimony upon professional studies or personal experiences, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). This gatekeeper function does not, however, replace a trial on the merits. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

         II. Analysis

         Dr. Martinelli's report contains a “Findings & Opinion” section that offers three general opinions supported by additional findings. The Government describes those general opinions as: “(1) his judgment of what happened when Harvey pepper-sprayed A.R.; (2) a conclusion that A.R.'s account of her injuries is not ‘completely supported by the medical evidence'; and (3) a conclusion that pepper spray is not a dangerous weapon.” Gov't's Mot. [81] at 2. Each is disputed.

         A. Opinions Regarding the Facts

         In “Findings & Opinion No. 1” of his report, Dr. Martinelli provides the following:

Based upon my review of the discovery evidence . . . and in consideration of my law enforcement, forensic and chemical agents education, training and experience, I find and opine to a reasonable degree of professional certainty that the following circumstances occurred at the time that ...

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