Police Practices Expert’s Use-of-Force Opinions Excluded
Posted on May 26, 2025 by Expert Witness Profiler
Plaintiff Deven Barrette (“Plaintiff) brings this action against Defendants the Village of Swanton; Kyle Gagne (“Defendant Gagne”); Jordan M. Mosher (“Defendant Mosher”); Robert Recore (“Defendant Recore”); and Leonard Stell (“Defendant Stell”); as well as John and Jane Does I-X (the “Doe Defendants”).
Plaintiff’s claims arose from his detention by Swanton Village Police Department (“SVPD”) officers on the night of April 2, 2020, and subsequent treatment by those officers and Northwest State Correctional Facility (“NWSCF”) employees. Barrette argued that Mosher, a corrections officer, used excessive force and unlawfully seized him when Mosher removed Barrette from a police cruiser. He also asserted assault and battery and intentional infliction of emotional distress.
Steve Ijames, Defendant Mosher’s use-of-force expert, opined that the injury suffered by Plaintiff “was not the result of force intentionally applied, but the accidental and unintended consequence of appropriate action taken while overcoming his resistance to control.”
Moreover, Michael J. Kuzel, Defendant Mosher’s human factors expert, opined that the action used by Defendant Mosher to pull Plaintiff out of the vehicle “involved a ballistic muscle contraction.”
Police Practices & Procedures Expert Witness
Steve Ijames has forty-six years of experience in policing and has acted as an instructor, presenter, and consultant on the use of force.
Human Factors Expert Witness
Michael Kuzel is a certified human factors professional with degrees in bioengineering, industrial engineering, and applied psychology.
Discussion by the Court
Use-of-Force Expert Opinions
To begin with, Ijames bases this opinion, in part, upon his reconstruction of the incident in which he met with Defendant Mosher, drove a Vermont State Police vehicle to a similar location where the vehicle transporting Plaintiff was parked, and allowed Defendant Mosher to extract him from the vehicle approximately twenty times in varying ways, including one in which a second officer grabbed him as he was being pulled out of the vehicle.
The Court held that the opinions of Steve Ijames that Plaintiff’s injuries were “accidental” are inadmissible because they are opinions regarding Defendant Mosher’s intent.
Correspondingly, expert opinions regarding whether Defendant Mosher acted “reasonably” under the circumstances are inadmissible because they not only usurp the role of the finder of fact, but also “express a legal conclusion or instruct the jury what conclusion to reach.”
Basically, the Court held that the Plaintiff’s challenge to opinions based on the attempts by Ijames to re-create the event are grounded in the absence of a need for expert witness testimony on this point.
Human Factors Expert Opinion
Based on his review of the video of Defendant Mosher’s use of force and Defendant Mosher’s testimony about the incident, Kuzel opined that the action used by Defendant Mosher to pull Plaintiff out of the vehicle “involved a ballistic muscle contraction.” According to Kuzel, “there is an accuracy tradeoff associated with ballistic contractions, leading to the actual force differing from the intended force.”
However, Plaintiff argued that Kuzel’s engineering background did not qualify him to opine on Defendant Mosher’s use of force, and that his conclusions were “speculative and conclusory.”
Because Kuzel provided no scientific basis for his conclusions that Defendant Mosher’s use of force on Plaintiff was a “ballistic muscle contraction” or that it is “unrealistic and near impossible” to predict Plaintiff’s resistance to such a movement or for his opinions regarding Defendant Mosher’s intent, and because his alleged scientific sources offer only broad generalizations about human behavior, such that “[t]hinking and decision-making are guided by two Systems[,]” one characterized by “instantaneous, automatic thinking” and another that “is analytical, deliberate, and rational,” the Court held that his opinions were inadmissible.
Held
The Court held that the opinions of both Steve Ijames and Michael J. Kuzel were unreasonable.
Key Takeaway:
To allow an expert to assume the role of an actor in his or her own incident reconstruction which involves no special expertise lies far afield of an opinion based upon specialized knowledge grounded in the expert’s education, experience, or training.
Case Details:
| Case Caption: | Barrette V. Swanton Village Trustees Et Al |
| Docket Number: | 2:22cv129 |
| Court Name: | United States District Court, Vermont |
| Order Date: | May 22, 2025 |
