IN THE SUPERIOR COURT OF THE STATE OF MAJOR

IN AND FOR JAMNER COUNTY, MAJOR

GRETCHEN and HANS SUMMERS ) CASE NO.: 12-12345Individually and as Administrators, )Personal Representatives of the )Estate of BRUNO SUMMERS, )deceased, )And as guardians for )AMANDA and RONNIE SUMMERS; )RONNIE SUMMERS, individually and )DEBORAH SUMMERS, individually, )

Plaintiffs,

v.

M.C. DAVOLA )and JANE DAVOLA, his wife; )And the GARAGE tavern CORPORATION )

Defendant.

______________________________/

Plaintiff’s Response and Memorandum of Law in Opposition to Defendant’s Motion in Limine

Plaintiffs, Gretchen and Hans SUMMERS, Deborah Summers (hereinafter “PLAINTIFFS”), by

and through the undersigned counsel, hereby file this Memorandum of Law in Opposition to

Defendant, M.C. DAVOLA and his wife, Jane DAVOLA’s (hereinafter “DEFENDANTS”)

Motion in Limine and state:

I. COUNTER-STATEMENT OF FACTS

A. The August 20, 2011 Incident

On August 20, 2011, after consuming alcohol provided to them at the Garage tavern

through employees of the tavern, Tom Donaldson and Mary Apple, Ed Hard and Bruno

Summers had a physical altercation. The altercation began when Ed Hard approached Bruno

Summers and his future wife, Deborah. Ed Hard had previously dated Deborah. Ed made

advances to Deborah. Bruno Summers got up to leave and told Deborah to come with him. Ed

Hard then grabbed Bruno Summers by the shoulder. Summers struck Hard in the mouth, causing

Hard to fall to the floor. Upon seeing the fight, Tom Donaldson ordered both parties to leave the

bar. Afterwards, Donaldson informed the owner of the tavern, Davola about the incident. Davola

told Donaldson to keep an eye on both Hard and Summers to try and avoid future trouble. After

the fight, Apple remembered muttering that she should not have served them (meaning Hard and

Summers).

B. The September 3, 2011 Incident

On September 3, 2011, both Ed Hard and Bruno Summers were at the Garage tavern

again. Both parties had consumed alcohol served to them by the same employees of the tavern

who served them on the August 20th incident, Tom Donaldson and Marry Apple. Bruno

Summers, at one point, went to the bathroom. Soon after, Ed Hard went to the bathroom as well

where the to subsequently met, at which point, Ed fired a gun hitting Bruno Summers in the

chest. An Ambulance was called to the scene. Bruno Summers eventually died in the hospital.

II. ARGUMENT

A. Even if a prediction from an expert witness might be unreliable, it affects only the weight of such evidence and not its admissibility; therefore, such expert testimony should be permitted.

Defendants argues that Dr. David Bowman’s opinions about what lay persons, Tom

Donaldson, and Mary Apple, would have believed under the circumstances are unreliable and

therefore, should not be admitted. The Plaintiffs disagree.

Major Rules of Evidence 702 dealing with testimony by experts states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, education, may testify thereto in the form of

an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Maj. R. Evid. 702.

“The competency of [psychiatric predictions] ha[ve] been repeatedly allowed because the

expert has the power to draw inferences from facts which a jury would not be competent to

draw.” Engdoll v. Guy, 269 Maj. 3d 26 (2003).

“Major courts allow opinion testimony concerning matters about which the juror may

have general knowledge if the expert opinion will still aid in the jury’s understanding of the facts

of the issue.” Id.

In Engdoll v. Guy, the Court of Major found that:

The fact that such predictions may be inaccurate affects the weight of such evidence and not its admissibility. Thus, doubt about the reliability and usefulness of these predictions can be called to the attention of the jury through opposing counsel’s direct and cross-examination. Juries should be presented with all relevant information regardless of the inaccuracies involved. Psychiatric opinion testimony will aid the trier of fact in its search for the truth. Id.

Here, Defendants argue that Dr. Bowman’s opinions are unreliable and that the testimony

of Dr. Bowman does not meet prong two of the M.R.E 702., and so should be barred. As there is

no further argument as to how it does not meet the second prong, not much can be argued other

than it does meet all three prongs, the second prong included; as demonstrated below.

As a licensed, practicing clinical psychologist, Dr. Bowman was educated (at the

University of Texas where he received his Ph.D. in Clinical Psychology), received training (was

an intern for 1 year at Western State Hospital), and has experience (19 years) as a licensed

clinical psychologist (10 of the most recent years spent as Chief Psychologist at Western State

Hospital), and with that has the knowledge and skill necessary to be deemed a qualified expert

witness capable of giving competent testimony on the matter of psychological issues; i.e.

Donaldson and Apple’s mental capacity to predict that violence would occur between Bruno

Summers and Edward Hard. The testimony is based upon sufficient facts or data, and though

Defendants disagree, polling 26 people frequent customers to the tavern coupled with Dr.

Bowman’s knowledge of psychology and the facts of this case are sufficient; therefore, the first

prong is met. The second prong (emphasis added) is satisfied because, as a licensed

psychologist, Dr. Bowman knows what methods and principles are necessary to create a

psychological study and thus, come to a conclusion based on those methods. For this study, Dr.

Bowman polled 26 people, researched the facts of the case, and used his own education,

knowledge, and skill to come to a conclusion based on these reliable principles and methods that

all psychologists use. The third prong is also met due to as Dr. Bowman polled not only 26

people but 26 regular Garage tavern customers. This, in addition to Dr. Bowman’s knowledge of

the facts of the case, coupled with his own knowledge about psychology, creates a sufficient

basis to conclude that Dr. Bowman applied reliable principles and methods, many psychologists

use, to the facts of this case.

Defendants attempt to discredit the testimony through “opinions of the court and

scientific journal.” However, the scientific journals are secondary authority and thus, are

superceded by primary authority, i.e. Engdoll v. Guy. In addition, the opinions Defendants rely

on are merely the minority opinions which are trumped by their majority counter-parts.

As to the matter of Dr. Bowman’s opinions’ reliability or the existence of any bias, that

must be determined by the trier of fact, not the trier of law. As stated in Engdoll v. Guy, the jury

should be presented with all relevant information regardless of the inaccuracies involved. Also,

nowhere in the Major Rules of Evidence or the case law does it proscribe evidence being

admitted on the basis of bias.

B. The probative value of Dr. Bowman’s testimony is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

“The competency of [psychiatric predictions] ha[ve] been repeatedly allowed because the

expert has the power to draw inferences from facts which a jury would not be competent to

draw.” Engdoll v. Guy, 269 Maj. 3d 26 (2003).

“Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Maj. R. Evid. 403.

Here, the expert testimony by Dr. Bowman should be permitted as he is a licensed and

practicing clinical psychologist and is therefore, an individual who is competent and capable of

discussing the matter of Tom Donaldson and Mary Apple’s ability to predict that violence would

occur between Bruno Summers and Edward Hard; an inference from facts which a jury would

not be competent to draw on their own.

Defendants claim that Dr. Bowman’s theory is bias and that he did not have an open

mind when constructing his study, nor did he poll enough individuals. However, there is no rule

of evidence that precludes testimony due to the bias nature of it, for if there was, any testimony

by a family member or friend of a plaintiff or a defendant would be excluded. Once again, the

accuracy of a study or opinion can be and is determined by the jury and does not prevent its

admissibility. The bias of the witness is also something a jury is to take into account, not the trier

of law, and does not affect a piece of evidence’s admissibility. In addition, Defendants will have

the ability to raise of issues of bias or concerns about the study’s accuracy on cross-examination,

thus eliminating any unfair prejudice since Defendants may use their own expert testimony to

inform the jury as to the other side of the argument. Therefore, while the Court does have broad

discretion to exclude testimony, such discretion should not be used when doing so would remove

relevant evidence from the jury, especially when such evidence is not unfairly prejudicial and

which the opposing counsel is provided the opportunity to cross-examine it.

In addition, to say there is no basis to the study would be to ignore the study and the

sample size all together. There was a basis for the study. The persuasiveness and accuracy of the

study, however, should be left for the jury to determine. As the testimony satisfied all three

prongs of MRE 702, it is difficult to argue that such evidence fits within the limiting restriction

of M.R.E. 403 relevant but improper evidence rule.

Therefore, since the testimony of Dr. Bowman’s probative value does not substantially

(emphasis added) outweigh any of the dangers listed under M.R.E. 403, the evidence should not

be excluded.

C. Engdoll v. Guy is not so different from the case at bar as to prevent proper comparison and application of the principles present in the case.

Engdoll v. Guy sets out a two element test used to justify the admittance of opinion

testimony: First, the subject of the inference must be distinctively related to some science,

profession, or occupation beyond the knowledge of the average layman. Id. Second, the witness

must have sufficient skill, knowledge, or experience ‘in the field as to make it appear that the

opinion or inference will probably aid the trier of fact in search of the truth. Id.

Here, the Defendants argue that Engdoll v. Guy is different from the case at bar.

Defendants state, it is “…more probable for a person to believe a murderer will have a tendency

for violence then to say that workers at a bar should have known some random customers

propensity for violence on one fight.” While that may be true, such does not go to the

admissibility of the evidence, but rather merely goes to its believability, which the jury, the

finder of fact, should be left to decide. Though the expert testimony relied on in Engdoll v. Guy

was different, the general principles drawn from the case can still be applied and are applicable

to this current proceeding. One such principle is the two prong test set out in the case, which can

be applied to the current case. The first prong of the test is satisfied because the subject of the

inference is a licensed and practicing clinical psychologist and therefore, his testimony as to

Donaldson and Apple’s ability to predict that Hard and Summers would act violently towards

one another, is distinctively related to the science and profession of psychology, which as Dr.

Bowman’s occupation, provides him with information and insight beyond that of an average

layman with regards to such matters. The second prong is met and surpassed because Dr.

Bowman, as a 19-year licensed clinical psychologist with a Ph.D., has sufficient skill,

knowledge, and experience in the field of clinical psychology to have his opinion and inferences

aid the trier of fact in its search for the truth (much less make it appear as to probably do such).

Thus, the proposed testimony should be admitted as competent opinion evidence. The

prediction that Tom Donaldson and Mary Apple could have known that Ed Hard and Bruno

Summers would engage in violence towards each other is distinctively related to the study of

human behavior which Dr. Bowman is well versed in, as a clinical psychologist. Such

psychiatric opinion testimony will only aid the trier of fact in its search for the truth. The fact

that the jury may be competent to make its own predictions should not preclude admission since

such testimony may aid the jury on its understanding of the issue. “Even though psychiatric

predictions have been labeled inaccurate, other authorities suggest that the inherent inaccuracies

may be overrated. Regardless, the fact the inaccuracies may exist should not preclude such

testimony. Any inaccuracies that do exist affect the weight of the testimony and not its

admissibility. It follows that such evidence should be properly admitted.” State v. Galvin, 287

Maj. 3d 26 (2011). Therefore, though the Court may be the “gatekeeper” with regard to expert

testimony, it should not build walls to blindly prevent such evidence from reaching the ultimate

trier of fact. Because the methodology behind Dr. Bowman’s testimony is reasonable and has

been used and proven an effect method of study (polls are relied on with numerous facets of

everyday life and psychiatric evidence have been accepted in Major Courts as sufficient expert

testimony evidence), the expert testimony should be admitted for the jury to decide on its

accuracy and persuasiveness; not the trier of law or opposing counsel.

III. CONCLUSION

WHEREFORE, the Plaintiffs, respectfully requests that this Court DENY Defendants’

Motion in Limine Order directing Plaintiffs, their witnesses, and attorneys to not make any

mention, oral or written, of the above referenced items at any time during the voir dire or trial of

this matter.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of this, Plaintiff’s Response and

Memorandum of Law in Opposition to Defendant’s Motion in Limine, was served via E-mail, on

this 26th day of March, 2012, to: LAW OFFICE OF SAM GOLDBERG, 45 West 45 Street, New

York, New York.

GRIM & ASSOCIATES, P.A.Attorney for Plaintiffs123 Ocean Drive, Suit 456 Lauderdale by the Sea, FL 33308 Telephone: (954) 555-5555Facsimile: (954) 555-5556

By: _ C. Kevin Grim ____________ C. Kevin Grim, Esq.

Fla. Bar #378902