True confessions of a plaintiff’s expert
Part One: The names of the officers and their agencies have been altered, but the details and states where the testimony took place are accurate
I’ve been getting a few uncomfortable vibes recently from some of my peers in the police training world. Most trainers know that there’s a requirement in the Federal Civil Rules of Procedure that mandates that experts keep track of all cases where they’ve provided expert testimony in either deposition or trial. They’re required to produce that document — generally referred to as a Rule 26 statement — on demand of the opposing counsel.
Apparently mine, which is really not all that lengthy considering I’ve been doing this kind of work for almost 20 years, has generated some interest because there are a few entries on my list where I’ve testified as a plaintiff’s expert. Of course, those instances are rare because usually when I’m called by a plaintiff’s attorney who’s positive he’s got a great case; my analysis is contrary to his contention that the cop used excessive force and “was 100 percent wrong.”
But I have taken a few plaintiff cases and accepted money from plaintiff’s attorneys. So here’s my true confession: “I’ve actually testified against agencies/officers.” Here are some of the details. I’ve got four stories to share with you, but because these online articles are necessarily limited in length (at the insistence of PoliceOne Editor Doug Wyllie), I’ve decided to break this into two parts. Part two will appear in this space two weeks from today. In the interest of privacy, I’ve altered the names of the officers and their agencies, but the details and states where the testimony took place are accurate.
Plaintiff’s Case #1: Pennsylvania
Officer Joe Palumbo was called to the scene of a violent shoplifter. Upon his arrival he was met by a suspect who recognized Palumbo as someone who arrested him before. Store security was just standing by, but an arrest was demanded. So, Palumbo started to apply the cuffs. The suspect had other ideas.
The struggle went to the ground and the suspect sustained a few facial injuries during the arrest. The incident was soon forgotten until the suspect appeared with his girlfriend at the stationhouse some time later and wanted Palumbo charged with excessive force. She produced photographs of some injuries on other parts of her boyfriend’s body (his back) that didn’t appear on Palumbo’s use-of-force report.
Apparently, the Police Chief decided that it would easier to just fire Palumbo and see if that would appease the couple and ward off a lawsuit for excessive force. Palumbo saw things differently and demanded a hearing. When a hearing was denied, the Chief summarily terminated Palumbo for excessive force and untruthfulness regarding the omissions of the other apparent back injuries in his use-of-force report. Palumbo contacted his PBA rep and legal counsel and filed suit against his agency to get his job back.
I left the warmth and sunshine of southwest Florida and visited central Pennsylvania to testify Pro Bono (except for travel expenses) for Palumbo. In summary, the Judge saw matters differently than the Chief and ruled Joe’s use of force reasonable. He was awarded all his back pay and reinstated to his former position with retroactive raises. There was no expert for the other side, except the Police Chief.
Plaintiff’s Case #2: Colorado
Officer Tommy James was dispatched to “an EDP threatening with a knife” call. Upon his arrival he was met by the mother who claimed her 15-year son was threatening her with a knife. While standing on the porch, James tried to defuse the emotionally-charged youth who remained hidden behind a partially opened inner door while James held the storm door closed with his foot.
After a minute or two, the youth decided to reach around the inner door and stick the 10” butcher’s knife through the storm door screen in an attempt to stab James. Unable to disengage, James fired through the screen hitting his target center mass. Emotions raged through the local community, and the politically-appointed Director of Public Safety overruled the Police Chief and suspended James for 30 days for “tactical errors.”
James contacted his FOP counsel who attempted to negotiate the suspension, to no avail. I was asked to review the IAB file and after doing so opined James’ tactics were fine and his use of force proper, reasonable, and consistent with department policy. When matters reached a loggerhead, James sued to get the suspension reduced. A trip to the Rocky Mountain State was required, and I testified in the “Matter of Officer Tommy James, Plaintiff vs. the City of Rocky Point, Colorado, Defendant.”
In the end, the Judge found the City’s expert incredible and agreed with my analysis. Officer Tommy James’ suspension was overturned, his record cleared, and he received all his back pay plus raises.
Two down, two to go. Next time out, I’ll run through two other cases where I wore a plaintiff expert’s hat and then I’ll sum up this “confession” once and for all. In fact, if the spirit moves me, I may even beg for forgiveness.