Law Enforcement Expert Not Allowed to Opine on the Effects of Taser Deployment

This is a civil rights lawsuit brought by the Plaintiffs Don Frank and Antonio Frank, individually, as the surviving heirs of their brother, Armando Frank, and as representatives of Armando Frank’s estate, for the violation of Armando’s Civil Rights, his survival action and his wrongful death.

On October 20, 2017, Armando Frank drove his tractor to the Walmart parking lot in Marksville, Louisiana, on a personal errand. As Frank was sitting on his tractor in the parking lot, he was approached by Brandon Spillman and Alexander Daniels about an outstanding arrest warrant they had been made aware of that day by a confidential informant. Later, Kenneth Parnell joined in the detention.

The argument between Frank and the officers eventually escalated and the three officers, Daniels, Spillman, and Parnell were held responsible for Frank's death by the Plaintiffs.

Defendants filed a motion in limine to preclude certain testimony of Plaintiff's experts, Dr. Christopher J. Tape and Charles P. Stephenson.

Law Enforcement Expert Witness

Charles P. Stephenson is a skilled professional with more than thirty years’ experience in Public Law Enforcement, Contract Security, Private Investigations, Risk Management Consulting and Expert Witness testimony.

Stephenson has been certified as an Expert Witness in multiple Federal and State jurisdictions. He has provided depositions and rendered opinions on numerous occasions regarding Police and Security Guard involvement in Use Of Lethal/Less Lethal, Use Of Force and Standard of Care Issues.

Get the full story on challenges to Charles Stephenson's expert opinions and testimony with an in-depth Challenge Study.

Pathology Expert Witness

Dr. Christopher James Tape earned his medical degree from the University of New Mexico, where he discovered his calling in forensic pathology during his first observation of a forensic autopsy. He completed a residency in anatomic and clinical pathology at the University of Vermont, where he undertook multiple forensic pathology rotations, including a notable stint at the New York City Office of Chief Medical Examiner.

His specialized training culminated in a forensic pathology fellowship at Wake Forest University in North Carolina, with supplemental education at the Virginia Forensic Academy. In 2010, Tape began his career as a forensic pathologist at the Louisiana Forensic Center, LLC. Over his tenure, he has performed over 4,000 autopsies and testified as an expert witness in more than 100 cases, including cold cases and high-profile investigations. As owner of the Louisiana Forensic Center from 2019 to 2022, he successfully led the organization through the challenges of the COVID-19 pandemic.

Want to know more about the challenges Christopher Tape has faced? Get the full details with our Challenge Study report.

Discussion by the Court

Christopher Tape

Plaintiffs sought to exclude the following opinions of Tape:

1. The total time of respiratory compromise — 6 minutes and 42 seconds;

2. Frank received electronic control device shocks ("ECD");

3. Police intervention was likely the intervening factor that led to his death;

4. The EDC likely caused respiratory compromise due to muscle paralysis and pain inflicted by the ECD which were likely a contributing factor in the death;

5. The law enforcement arrest was the intervening factor that led to the death;

6. The video showed that Frank had compromised breathing;

7. There were 2 minutes and 45 seconds of compression on the tractor which was actual compromise to the respiratory system;

8. Dr. Tape's belief that Frank died because of the police actions;

9. Frank's oxygenation was compromised;

10. A "bar hold" compromised or impaired blood flow to Frank's brain;

11. Frank's heavy breathing was caused by police action and not by his own resistance; and

12. The action of the Defendants caused and/or contributed to Frank's death.

Defendants generally asserted that Tape is not an expert in the fields of law enforcement procedures and/or tactics or electronic control devices ("ECD"); thus, his testimony regarding these subjects should be excluded. Plaintiffs stated they did not intend to elicit testimony from Tape regarding law enforcement procedure and/or tactic, so the objections to items 3, 5, 8, and 11 are moot. However, the Court noted that items 3 and 5 also contain language regarding police action being an "intervening factor." Whether someone's conduct is an intervening factor is a question of law, and as such, is not a matter on which an expert should opine. Accordingly, Tape may not express any opinion as to whether he believes conduct is an intervening cause.

As to expert testimony from Tape regarding ECDs, the Court noted that he admits in his deposition that he is not an expert in that field. However, he qualifies his statement by stating he conducts research on and has familiarity with ECDs, and he has reviewed autopsies where ECDs are relevant - though he does not explain how. In their opposition, Plaintiffs attempt to bolster Tape's qualifications by generally averring he is a forensic pathologist with medical experience, this is not his first case involving ECDs, he familiarized himself with Taser literature, and his medical training, knowledge, and experience qualify him to render opinions on whether or how Frank received electrical shocks and what effect those shocks had on Frank's body. However, Tape's own deposition testimony indicates otherwise as he stated that he was unsure if a circuit was ever established by the Taser probes that were deployed, Although Tape's medical training as a forensic pathologist qualifies him to offer opinions within his expertise (perhaps the effects of electricity on Frank physiologically), those questions will have to be addressed as they arise at trial in the realm of hypotheticals. What is clear from Tape's deposition testimony is that he is not qualified to opine that Frank was actually shocked by the Taser probes because he has already said he does not know. Any other shocks administered to Frank, such as in a drive stun mode, will be addressed should they arise during trial.

The Court turned next to the question of whether Tape should be allowed to refer to Defendants as "police" and "law enforcement." This matter is one that will have to be addressed at trial as we cannot anticipate all of the circumstances under which the reference could or could not be made. The Court cautioned that referring to "police" or "law enforcement" broadly could create confusion for the jury. For example, a number of law enforcement personnel who played some part, arrived on scene at various points. The parties dispute whether the actions of these individual law enforcement personnel contributed to Frank's death and whether these actions are independent of the actions undertaken by the named Defendants.

As to items 1, 6, 7, 9, 10, and 12, the Court found that the Defendants' argument for exclusion goes to the weight and credibility of the testimony rather than the admissibility. Accordingly, at this time the Court will not exclude Tape from testifying as to these matters. Tape's report is not per se admissible but may be used in impeachment within the foregoing rulings.

Charles Stephenson

Defendants first addressed the report of Stephenson. They contended that Stephenson's description of the incident should be excluded because it is nothing more than a summary of the video which the jury is more than capable of watching and understanding without Stephenson's assistance. The Court agreed. Stephenson cannot provide either a narrative of the video or his own credibility determinations or legal conclusions based on his review of the video. Accordingly, this portion of the report should be excluded.

The Court next addressed the Defendants' request to exclude the video evidence obtained from Honea, Firmin, and Paige. To the extent the request is one to prevent Stephenson from relying on these videos, the request is denied. Whether the videos are in fact hearsay evidence is of no moment when deciding whether an expert witness may review them in forming his opinions. However, this does mean that the videos may be admitted as evidence for the jury to consider. Unfortunately, the Court cannot determine at this time whether the videos are in fact hearsay as we do not know who Honea, Firmin and Paige are, nor have the parties provided copies or pointed to their existence in the record so the Court might review them. Accordingly, at this time, the request to exclude the videos as evidence is denied.

According to Stephenson, Frank’s identity, behavior patterns, and place of residence were known to both the Sheriff’s Office and the Police Department, and the Sheriff’s Office also knew of his history of mental instability; Daniel’s initial question asking Frank whether he was a veteran showed that Daniel already knew him. The Court noted that there is no dispute that opinions 1, 2, and 3 must be excluded from evidence as they are factual statements and not opinions.

At this time, the Court found that Stephenson, if otherwise qualified, could render opinions on police procedures, law enforcement training, departmental policies, de-escalation techniques, supervisory practices, Taser practices, restraint practices, and whether certain conduct was consistent or inconsistent with identified professional standards or policies. He may refer to International Association of the Chiefs of Police policies and procedures to explain recognized law enforcement practices, but he cannot testify that violation of these procedures necessarily results in a constitutional violation. In fact, Stephenson may not render any opinions that assert legal conclusions. His statements that police conduct was "objectively unreasonable," that they used "excessive force" or "grossly excessive" force, that their actions were "punitive", etc., will not be allowed. Nor may he testify to the credibility of any witness or speculate as to an officer's intent, motive, or desire to punish Frank. Such testimony is not only prohibited at trial, but it should be excluded from any report. As always, Defendants may challenge Stephenson's assumptions and conclusions via cross-examination and the presentation of evidence.

The Court also agreed with Defendants that Stephenson's testimony regarding medical causation and effects of Taser deployment is beyond his qualifications. Stephenson is not a medical expert, and such statements exceed any expertise he possesses on use of Tasers.

Held

• The Court granted in part, denied in part and denied as moot in part the Defendants' motion pertaining to the testimony of Dr. Christoper Tape.

• The Court granted in part and denied in part the motion to exclude certain opinions of Charles P. Stephenson.

Key Takeaway

Stephenson was precluded from offering legal conclusions and opinions which invade the province of the jury but may offer otherwise admissible police-practices testimony, subject to appropriate objections and cross-examination at trial.

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