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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ALAN THIBAULT,

Case No: 2:15-cv-11358

Plaintiff, Hon. Matthew F. Leitman

v. 

EDWARD WIERSZEWSKI, individually

and in his official capacity as a Public

Safety Officer,

Defendant.

__________________________________________________________________/

ARI KRESCH (P29593) GEORGE M. DeGROOD, III (P33724)

SOLOMON M. RADNER (P73653) MICHELLE A. THOMAS (P35135)

1-800 LAW-FIRM, PLLC Attorneys for Defendant

Attorney for Plaintiff 400 Galleria Officentre, Suite 550

26700 Lahser Rd., Suite 400 Southfield, MI 48034

Southfield, MI 48033 (248) 353-4450

(248) 291-9712 gdegrood@thomasdegrood.com

sradner@1800LawFirm.com mthomas@thomasdegrood.com

__________________________________________________________________/

PLAINTIFF’S RESPONSE BRIEF IN OPPOSITION TO DEFENDANT’S

MOTION TO PRECLUDE TESTIMONY AT TRIAL OF 

PLAINTIFF'S OFFERED EXPERT MR. MARTY BUGBEE 

Plaintiff, Alan Thibault (“Plaintiff” or “Mr. Thibault”), by and through his 

attorney, Solomon M. Radner of 1-800-LAW-FIRM, PLLC moves this Court to 

DENY Defendant Edward Wierszewski’s (“Defendant”) Motion to Preclude 

Case 2:15-cv-11358-MFL-SDD ECF No. 14, PageID.454 Filed 04/11/16 Page 1 of 12
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testimony at trial of Plaintiff's offered expert, for the reasons stated herein this 

Brief in Opposition.

Respectfully submitted,

1-800-LAW-FIRM, PLLC

/s/ Solomon M. Radner

Solomon M. Radner (P73653)

Attorney for Plaintiff Avigne 

26700 Lahser Rd., Suite 400

Southfield, MI 48033

(248) 291-9719

Dated: April 11, 2016

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TABLE OF CONTENTS 

TABLE OF AUTHORITIES...............................................................iv

STATEMENT OF RELEVANT FACTS....................................................1

A. Background............................................................................1

B. Procedural History.....................................................................3

STANDARD OF REVIEW..................................................................3

ARGUMENT..................................................................................4

I. The expert witness, Mr. Bugbee’s, testimony is relevant in determining the 

central issue of the case...............................................................4

II. Mr. Bugbee is a qualified expert witness in the field sobriety tests.............5

III. The testimony of Mr. Bugbee is necessary to assist the trier of fact in 

determining a fact in issue............................................................7

CONCLUSION...............................................................................8

CERTIFICATE OF SERVICE.............................................................11

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TABLE OF AUTHORITIES

Cases Pages

Beck v. Ohio, 379 U.S. 89 (1964)....................................................7

Cook v. American S.S. Co., 53 F.3d 733 (6th Cir. 1995).........................5

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)...................3, 4

Hopkins v. Dow Corning Corp., 33 F.3d 1116 (9th Cir. 1994)...................5

Jones v. Pramstaller, 874 F. Supp. 2d 713 (W.D. Mich. 2012)...................7

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)...........................5, 6

Morales v. Am. Honda Motor Co., 151 F.3d 500 (6th Cir. 1998).............3, 5

United States v. Geiger, 303 F. App’x 327 (6th Cir. 2008)........................4

Statute 

42 U.S.C. § 1983......................................................................3, 7

Rules

Federal Rule of Evidence 401.........................................................4

Federal Rule of Evidence 702...................................................3, 5, 6

Other Authority

Charles Alan Wright et al.,

29 Federal Practice & Procedure Evidence § 6264................................7

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STATEMENT OF RELEVANT FACTS

A. Background.

Mr. Thibault is a resident of the state of Michigan. (Compl. ¶1). Defendant 

was employed as a public safety officer by the Grosse Pointe Farms Police 

Department during the relevant period pertinent to the Complaint. (Compl. ¶2). On 

December 5, 2014, while Mr. Thibault was driving a semi-truck during the course 

of his employment he began to make a left turn onto a public road when he 

observed what he thought to be a “no trucks” sign. (Compl. ¶¶8 & 9). While 

correcting his steering to continue on the road he was traveling on, the truck’s 

trailer clipped the middle median. (Compl. ¶9). Mr. Thibault observed police cars 

traveling the opposite direction make a U-turn, presumably to stop and question 

him, and therefore activated his hazard lights and slowed the truck to park it on the 

side of the road. (Compl. ¶10). Thereafter, Defendant and an unknown officer 

pulled behind Mr. Thibault’s truck and activated their emergency lights. (Compl. 

¶11). Defendant asked Mr. Thibault to step out of the truck to search the truck for 

alcohol, drugs and weapons, and to conduct a field sobriety test. (Compl. ¶13). Mr. 

Thibault cooperated with all the demands of Defendant. (Compl. ¶¶ 12-15).

Defendant continued further questioning of Mr. Thibault without reading him his 

Miranda rights. (Compl. ¶17). Even though Plaintiff passed all sobriety tests and 

despite no illegal substance being recovered from the truck, Defendant placed 

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handcuffs on Mr. Thibault and told him that he was under arrest for “operating 

while intoxicated.” (Compl. ¶18).

On the way back to the station, Mr. Thibault asked an unknown officer about 

the reason for his arrest as he did not break any law. (Compl. ¶19). The unknown 

officer stated that if he was sober, he would not be charged of committing any 

crime. (Compl. ¶19). According to the Grosse Pointe Farms Police Department, the 

video and audio equipment from this particular squad car was not working that 

evening. (Compl. ¶19). In the police station, Mr. Thibault was subjected to 

breathalyzer test which read “all zeros.” (Compl. ¶20). The results of this 

breathalyzer test was left out of the police report and Mr. Thibault only learned this 

through his counsel. (Compl. ¶21). Defendant continued to interview and question 

Mr. Thibault and a drug influence evaluation was also started. (Compl. ¶22). Mr. 

Thibault’s blood pressure and the pulse, which were taken more than twice, all fell 

within the normal range. (Compl. ¶¶23 & 24). Thereafter, Mr. Thibault was read 

his Miranda rights and was questioned further. (Compl. ¶25). Mr. Thibault’s blood 

was taken for chemical testing and he was released on bond. (Compl. ¶29).

Immediately after his release, he took a drug and alcohol screening test at his

employer’s drug screening facility, Mercy Memorial – Corporate Connection to 

provide to his employer. (Compl. ¶30). Mr. Thibault tested negative for any 

alcohol or illegal substances in the test results. (Compl. ¶30).

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B. Procedural History. 

On April 14, 2015, Plaintiff filed the complaint alleging unlawful arrest and 

malicious prosecution under 42 U.S.C. § 1983 and the violation of Fourth and 

Fourteen Amendments against Defendant. (See Compl.). Mr. Marty Bugbee (“Mr. 

Bugbee”) was named as an expert witness by the Plaintiff in this matter to 

substantiate his claims in the Complaint. (Def.’s Mot. p. 3). Defendant filed the 

Motion stating that Mr. Bugbee’s testimony is irrelevant to the determination and 

claims that if allowed to be presented before the jury, would invade the province of 

jury. (Def.’s Mot. p. 3). Defendant also argues that Mr. Bugbee is not qualified as 

an expert as required by Federal Rule of Evidence 702. (Def.’s Mot. p. 3).

This Response follows.

STANDARD OF REVIEW

Federal Rule of Evidence 702 “confides to the judge some gatekeeping 

responsibility in deciding questions of the admissibility of proffered expert 

testimony.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 600 (1993). A 

district court has discretion to admit expert testimony under Rule 702. Morales v. 

Am. Honda Motor Co., 151 F.3d 500, 520 (6th Cir. 1998). “[T]he trial judge must 

investigate the competence a particular proffered witness would bring to bear on 

the issue without relying upon any particular label or fact, and must determine 

whether it would aid the trier of fact in reaching a decision.” Id. at 515. 

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ARGUMENT

I. The expert witness, Mr. Bugbee’s, testimony is relevant in determining 

the central issue of the case. 

“Like all evidence, the admissibility of expert testimony is also subject to a 

determination of relevancy under Rule 401.” United States v. Geiger, 303 F. App’x 

327, 329 (6th Cir. 2008). “‘Relevant evidence’ is defined as that which has ‘any 

tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be 

without the evidence.’” Daubert, 509 U.S. at 587 (quoting Rule 401). “The Rule’s 

basic standard of relevance thus is a liberal one.” Id. “[T]he testimony’s 

admissibility depends on its relevancy and on whether its probative value 

outweighs its potential unfair prejudicial effect.” Geiger, 303 F. App’x at 330. 

Mr. Thibault has alleged unlawful arrest without probable cause and 

malicious prosecution in violation of his Fourth and Fourteenth Amendment rights. 

Plaintiff seeks to offer the testimony of Mr. Bugbee to help the jury determine Mr. 

Thibault’s claims in the Complaint regarding whether there was probable cause for 

Mr. Thibault’s arrest. Mr. Bugbee is a police expert having extensive experience in 

criminal, civil, and internal investigations and is capable and qualified to testify to 

police procedures. Mr. Bugbee’s testimony is both relevant and essential to prove 

Mr. Thibault’s case. Mr. Bugbee’s testimony about whether the breathalyzer test

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and field sobriety tests conducted by Defendant provided probable cause goes to 

the heart of the claims made by Mr. Thibault in this case. Thus, Mr. Bugbee’s 

testimony is highly relevant to prove whether Mr. Thibault’s arrest was done with 

probable cause. Moreover, Mr. Bugbee’s testimony is reliable on the basis of his 

qualification and expertise in the field of sobriety tests. 

II. Mr. Bugbee is a qualified expert witness in the field of sobriety tests. 

Federal Rule of Evidence 702 says that “‘[i]f scientific, technical, or other 

specialized knowledge will assist the trier of fact ..., a witness qualified as an 

expert ... may testify thereto in the form of an opinion.’” Kumho Tire Co. v. 

Carmichael, 526 U.S. 137, 137 (1999) (quoting FRE 702). “[A] district court is not 

required to hold a formal hearing to determine whether a person is qualified to be a 

witness; rather, the court must merely make a determination as to the proposed 

expert’s qualifications.” Morales, 151 F.3d at 515 (citing Hopkins v. Dow Corning 

Corp., 33 F.3d 1116, 1124 (9th Cir. 1994)).

Whether a proposed witness is qualified to testify as an expert is 

determined, in part, by examining ‘whether the witness’s ‘knowledge, 

skill, experience, training, or education,’ are such as to qualify him or 

her to testify as an expert at all, and it may include a determination of 

the tests or experiments that the proffered expert conducted, if any.’

Id. at 520 (quoting Cook v. American S.S. Co., 53 F.3d 733, 738 (6th Cir. 1995)).

Further, Rule 702 “grant[s] all expert witnesses, not just ‘scientific’ ones, 

testimonial latitude unavailable to other witnesses on the assumption that the 

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expert's opinion will have a reliable basis in the knowledge and experience of his 

discipline.” Kumho Tire Co., 526 U.S. at 138.

Mr. Bugbee is a qualified expert based on his knowledge and experience as a 

police officer. He held the position of Michigan State Police Trooper from April 

1989 to April 2011. (Transcript Testimony (“Tr.”) of Mr. Bugbee, 5:8-16). At the 

time of retirement he held the rank of a Detective First Lieutenant. (Tr. Mr. 

Bugbee, 5:17-19). He has been certified as a standard sobriety field test expert and 

he was a Field Training Officer with the Michigan State Police as well as other 

police departments. (Tr. Mr. Bugbee, 6:4-6, 11-13). In his capacity as Field 

Training Officer, Mr. Bugbee had instructed other officers and troopers on field 

sobriety testing and the arrest process for alcohol enforcement. (Tr. Mr. Bugbee, 

6:13-16). He is experienced in teaching field sobriety testing on the basis of Field 

Training Manual to Field Training Officers. (Tr. Mr. Bugbee, 7:17-21). Before his 

retirement in 2011, Mr. Bugbee was involved in traffic stops of citizens on the 

roadway suspected of either erratic driving or operating under influence. (Tr. Mr. 

Bugbee, 11:14-19). Thus, Mr. Bugbee, is a qualified expert to testify on the basis 

of his extensive knowledge, skill, experience, training, and education.

Based on the foregoing, Mr. Bugbee is an expert in the field of sobriety tests. 

III. The testimony of Mr. Bugbee is necessary to assist the trier of fact in 

determining a fact in issue. 

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An expert witness’s testimony is needed when the jury is in need of an 

opinion that cannot “be derived from common sense, common experience, [and] 

the jury’s own perceptions, or simple logic.’” Jones v. Pramstaller, 874 F. Supp. 2d 

713, 720 (W.D. Mich. 2012) (quoting Charles Alan Wright et al., 29 Federal 

Practice & Procedure Evidence § 6264). In this case, whether there was probable 

cause to arrest Mr. Thibault depends on the meaning of the breathalyzer test and 

field sobriety test results in the context in which Mr. Thibault was arrested. Mr. 

Bugbee has extensive training in basic and advanced narcotics with the Michigan 

State Police. (Tr. Mr. Bugbee, 48:13-15). As an expert in the field, his testimony 

will shed light on whether, given the results of the sobriety tests, “there were 

sufficient facts and circumstances to warrant a prudent officer to believe that [Mr. 

Thibault] had committed or was about to commit an offense.” Beck v. Ohio, 379 

U.S. 89, 90 (1964). Therefore, the import of the Defendant’s sobriety testing and 

Plaintiff’s results are something which Mr. Bugbee can provide clarity on, but 

which a lay jury member would not have a significant background in.

Thus, Mr. Bugbee’s testimony will be highly useful to helping the jury 

determine issues in this case. 

CONCLUSION

WHEREFORE, Plaintiff Alan Thibault respectfully requests this Honorable 

Court to deny Defendant’s Motion in its entirety. 

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Respectfully submitted,

1-800-LAW-FIRM, PLLC

/s/ Solomon M. Radner

Solomon M. Radner (P73653)

Attorney for Plaintiff Avigne 

26700 Lahser Rd., Suite 400

Southfield, MI 48033

(248) 291-9719

Dated: April 11, 2016

CERTIFICATE OF SERVICE

Solomon M. Radner hereby states that on April 11, 2016, he 

caused the foregoing document to be filed electronically with the 

United States District Court and that a copy of said document was sent 

to all counsel of record through the ECF system. 

/s/ Solomon M. Radner 

Solomon M. Radner (P73653) 

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