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Estate of Mikal R. Gaither, By and Through Pearl Gaither, Personal v. District of Columbia

December 19, 2011

ESTATE OF MIKAL R. GAITHER, BY AND THROUGH PEARL GAITHER, PERSONAL REPRESENTATIVE, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Pearl Gaither ("Plaintiff"), the representative of the estate of Mikal R. Gaither ("Gaither"), brings this action against the District of Columbia (the "District") and a series of individual defendants seeking damages in connection with Gaither's fatal stabbing while he was incarcerated pending sentencing at the District's Central Detention Facility. Plaintiff has indicated an intention to present expert testimony at trial from Michele Roberts, Esq. ("Roberts") concerning the sentence Gaither likely would have received had he survived in support of her alleged damages. The matter comes to this Court on the District's [113] Motion to Strike Plaintiff's Expert Michelle [sic] Roberts, Esq. ("Motion to Strike"); the Honorable Magistrate Judge Alan Kay's [120] Memorandum Order resolving the District's Motion to Strike; Plaintiff's [235] Updated Memorandum in Support of Expert Testimony of Plaintiff's Sentencing Expert; the District's [246] Updated Memorandum in Opposition to Plaintiff's Updated Memorandum in Support of Plaintiff's Sentencing Expert; and Plaintiff's [236] Motion for Leave to Supplement Expert Report of Michele Roberts, Esq. ("Motion to Supplement"). Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court concurs with Magistrate Judge Kay that Roberts should be precluded from testifying as to her opinion of the sentence that Gaither likely would have received in his criminal case. However, the Court finds that Roberts may provide generalized testimony about the factors that a judge might take into account in the course of sentencing a criminal defendant, an issue that was not addressed by Magistrate Judge Kay in his Memorandum Order.

I. BACKGROUND

The Court assumes familiarity with its prior opinions in this action, which set forth in detail the extensive factual and procedural background of this case.

On December 14, 2002, Gaither was fatally stabbed by a fellow inmate while incarcerated at the District's Central Detention Facility. A subsequent investigation concluded that two of Gaither's fellow inmates had forced Gaither into an open cell and proceeded to stab him, and indications were that Gaither had been killed because of his involvement in a grand jury investigation into the murder of an individual by the name of Kenneth Muldrow.

Plaintiff brings this action on behalf of Gaither's estate. She asserts claims under, inter alia, Section 1 of the Ku Klux Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983, against the District and a series of individual officials and correctional officers, seeking compensatory damages against each defendant in the amount of $10 million.

Significantly, at the time of his death, Gaither had already pleaded guilty to one felony count of distribution of cocaine and was awaiting sentencing in the Superior Court of the District of Columbia by the Honorable Judge Noël Anketell Kramer, who was then the Presiding Judge of the Criminal Division.*fn1 Under the statute that applied at the time, Gaither's conviction carried a possible sentence ranging from probation to thirty years' incarceration. See D.C. CODE § 33- 541(a)(1) (1981). Due to Gaither's untimely death, his actual sentence will never be known. Nevertheless, because the parties agree that Gaither would not have suffered lost wages for any period that he was incarcerated, the sentence Gaither likely would have received is an important ingredient of Gaither's lifetime earning potential, which in turn is a large part of Plaintiff's claimed compensatory damages in this case. Distilling the matter to its essence, should the jury ever need to reach the issue, the less time it finds that Gaither would have spent in jail, the greater Plaintiff's damages.

For this reason, during the course of discovery, Plaintiff designated Roberts to testify as a "sentencing expert" and, more precisely, to provide an opinion as to the sentence that Gaither likely would have received had he lived.*fn2 Roberts subsequently prepared, and Plaintiff produced, a three-page written report, in which she stated her "opinion that, had he lived, Mr. Gaither would have been sentenced to probation for his first felony conviction on a single count of distribution of cocaine." Report of Michele A. Roberts, Esq. ("Roberts' Rep."), ECF No. [113-3], at 1. According to her report, Roberts based her opinion on the following:

(1) Her experience representing criminal defendants in the District of Columbia;

(2) Her experience as a member of the Sentencing Commission for the District of Columbia;

(3) Her review of historical sentencing data and guidelines;

(4) Her review of information bearing on Gaither's character, upbringing, and family history and circumstances; and

(5) Her review of information in documents provided by Plaintiff's counsel. See id. at 1.

While acknowledging that "the statutory maximum sentence for distribution of cocaine was 10 to 30 years at the time of Mr. Gaither's offense," Roberts opines in her report that "a defendant without a prior felony conviction was more likely than not to receive a sentence of probation upon conviction for this offense, both according to the relevant historical data and based on [her] own experience." Id. According to Roberts, "[t]hat is because judges were generally concerned about proportionality in sentencing-i.e., treating like offenders alike-and, consequently, exercised their sentencing discretion in a manner that took into account criminal history as well as mitigating factors." Id. In her report, Roberts identifies three "aggravating factors" and nine "mitigating factors"*fn3 that she contends supports her opinion that Gaither likely would have received probation as a sentence. Id. at 2-3. The three aggravating factors include:

(1) Gaither's testing positive for cocaine on three occasions-on September 19, September 30, and October 3, 2002, while under pretrial supervision and in violation of his conditions of release and after his graduation from a three-month Harbor Lights residential drug treatment program;

(2) Gaither's two prior misdemeanor convictions for possession of marijuana; and

(3) Gaither's pending charge of felony possession with intent to distribute cocaine, which was set to be dismissed at sentencing but was nonetheless pending as of his death.

See id. at 2. Meanwhile, the nine mitigating factors identified by Roberts in her report are as follows:

(1) Events in Gaither's life that were "beyond his control" that "caused him to spiral into despair," including the death of his sister, which Roberts indicates led Gaither to begin using drugs and to sell drugs to "feed his habit";

(2) Gaither's demonstrated "ability to succeed under court supervision," having successfully completed probation in his two prior misdemeanor cases;

(3) Gaither's successful completion of a three-month residential drug rehabilitation program, even though he "suffered a relapse after leaving the program," and his active search for "further drug rehabilitation";

(4) Gaither's "deeply caring and supportive family";

(5) Gaither's access to "excellent role models," in particular his mother and two older brothers, all of whom had "long and steady work histories";

(6) Gaither's "prior work history";

(7) Gaither's genuine interest in "improving his prospects," including "developing marketable work skills";

(8) Judge Kramer's attendance at Gaither's graduation from the drug rehabilitation program and his funeral; and

(9) Gaither's voluntary cooperation with a grand jury investigation of the murder of Kenneth Muldrow.

Id. at 2-3.

Believing that Roberts' opinion, as set forth in her written report, did not satisfy the requirements of Rule 702 of the Federal Rules of Evidence, the District filed its [113] Motion to Strike, seeking to preclude Roberts from testifying on how a presiding judge may have ruled in Gaither's case. See Mem. of P. & A. in Supp. of Defs.' Mot. to Strike Pl.'s Expert Michelle [sic] Roberts, ECF No. [113]. Plaintiff subsequently filed an opposition, the District filed a reply, and, with the Court's leave, Plaintiff filed a surreply. See Pl.'s Opp'n to the District of Columbia's Mot. to Strike Pl.'s Sentencing Expert Roberts, ECF No. [114]; Def. District of Columbia's Reply to Pl.'s Opp'n to the District of Columbia's Mot. to Strike Expert Michelle [sic] Roberts, ECF No. [115]; Pl.'s Sur-Reply in Opp'n to the District of Columbia's Mot. to Strike Pl.'s Experts, ECF No. [119]. In a detailed [120] Memorandum Order, Magistrate Judge Kay, to whom this action was referred under Local Civil Rule 72.2(a), granted the District's Motion to Strike in relevant part. Magistrate Judge Kay concluded that Roberts should be precluded from testifying as to the opinion that Gaither likely would have received probation had he lived, finding that the methodology underlying her opinion, as reflected in her three-page written report, failed to meet the standards of reliability set forth in Rule 702. Magistrate Judge Kay was neither asked to, nor did, determine whether Roberts could provide more generalized testimony, such as testimony about the factors judges are likely to consider when sentencing a criminal defendant.

Subsequently, Plaintiff filed objections to Magistrate Judge Kay's ruling, and the District filed a response to those objections. See Pl.'s Mem. of Law in Supp. of Her Objections to Magistrate Judge Kay's Order Granting in Part the District's Mot. to Strike Pl.'s Experts, ECF No. [126-1]; Def. District of Columbia's Mem. of P. & A. in Opp'n to Pl.'s Mem. of Law in Supp. of Her Objections to Judge Kay's Order Granting the District's Mot. to Strike Pl.'s Sentencing Expert, ECF No. [129]. The Court heard oral argument on Plaintiff's objections, during which the Court raised various questions concerning Roberts' methodology and her ultimate conclusion. See Tr. of Status Hr'g, ECF No. [187]. Later, without objection, the Court held a thorough Daubert hearing,*fn4 during which the parties had a full and fair opportunity to probe the reliability of Roberts' methodology and conclusions. See Tr. of Daubert Hr'g, ECF No. [188]. Following the hearing, the parties filed supplemental memoranda addressing the reliability of Roberts' proffered testimony. See Def. District of Columbia's Suppl. Mem. of P. & A. in Opp'n to Pl.'s Objections to Judge Kay's Order Granting the District's Mot. to Strike Michele Roberts, Esq., as a Sentencing Expert in this Case, ECF No. [153]; Pl.'s Am. Opp'n to Defs.' Suppl. Mem. of P. & A. in Opp'n to Pl.'s Objections to Magistrate's Order Striking Pl.'s Sentencing Report, ECF No. [172-1];Pl.'s Am. Notice of Filing of Signed Decl. of Michele A. Roberts, Esq., ECF No. [177]; Defs.' Reply to Pl.'s Opp'n to Defs.' Suppl. Mem. of P. & A. in Opp'n to Pl.'s Mem. of Law in Supp. of Her Objections to Judge Kay's Order Granting in Part the District's Motion to Strike Pl.'s Experts, ECF No. [176].

Thereafter, a number of developments changed the landscape of this case. Most notably, the Court resolved the parties' cross-motions for summary judgment and granted Plaintiff leave to amend her complaint. See Estate of Gaither ex rel. Gaither v. District of Columbia, 655 F. Supp. 2d 69 (D.D.C. 2009). Accordingly, the Court invited the parties to inform the Court whether they believed additional briefing as to the admissibility of Roberts' testimony would be desirable. See Order, ECF No. [222]. After the parties weighed in, the Court set a schedule for the submission of updated memoranda. See Min. Order (Mar. 31, 2011). The parties were directed to file consolidated memoranda and were expressly warned that their "submissions must raise any and all arguments they may have regarding the admissibility of Roberts' testimony at trial" and that the Court would "not consider prior submissions." Id. (emphasis added). Plaintiff filed her memorandum on April 20, 2011. See Pl.'s Updated Mem. in Supp. of Expert Test. of Pl.'s Sentencing Expert ("Pl.'s [235] Mem."), ECF No. [235]. The District filed its memorandum on May 11, 2011. See Def.'s ...


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