IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THOMAS M. JANUSZ, JR., )

) Case No. 03 C 4402

Plaintiff, )

) Judge Joan B. Gottschall

v. )

)

CITY OF CHICAGO, et al. )

)

Defendants. )

DEFENDANTS’ MOTION IN LIMINE NO. 3 TO

BAR THE TESTIMONY OF DR. JAMES PASTOR

Defendants Alan Lucas, Parris George, Gina Liberti and Amy Mugavero-Lucas 

(collectively “Defendants”), by and through their undersigned attorneys, move this Court to bar 

the testimony of Plaintiff’s expert, Dr. James Pastor, at the trial of this matter and bar any of the

documents upon which he relied and his expert report. In support thereof, Defendants state as 

follows: 

Introduction

Plaintiff seeks to offer the testimony of Dr. James Pastor, a purported expert in the area of 

police procedures. Pastor’s opinions are contained in his “Report of Expert,” (attached hereto as 

Exhibit A), and are divided into two main areas: first, opinions regarding the City of Chicago’s 

Complaint Review process and disciplinary system, and second, opinions regarding police 

practices and procedures. With respect to the first area, Pastor’s opinions should be barred 

because they are irrelevant to any issue being tried in this case. Such opinions are only relevant 

to a claim against the City pursuant to Monell v. Dept. of Social Services of the City of New York, 

436 U.S. 658 (1978). The Monell claims in this case are not being tried based upon the 

Stipulation of the City agreed to by the parties in July 2006. (See Docket no. 100, and see Dkt. 
2

207, Minute Order of Judge Nordberg acknowledging that Monell claim was removed by 

Stipulation). Accordingly, Pastor’s opinions regarding the City’s disciplinary system are no 

longer relevant and should be barred. As to his opinions on police practices and procedures, 

Pastor must not be permitted to testify because his opinions are unreliable and not be helpful to 

the jury.

Argument

Rule 702 of the Federal Rules of Evidence provides that: “[a] witness who is qualified as 

an expert by knowledge, skill, experience, training, or education may testify in the form of an 

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of 

fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.”

Fed. R. Evid. 702 (West 2013). As the “gatekeeper” for expert witness testimony at trial, this 

Court must “ensure that any and all scientific testimony or evidence admitted is not only 

relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). 

Expert testimony can be barred when it is unhelpful to the jury and it is improper if it usurps the 

jury’s function. See Wells v. City of Chicago, et al., No. 09 C 1198, 2012 WL 116040, *9 (N.D. 

Ill. January 16, 2012) (Kennelly, J.). Additionally, “no expert testimony is needed when the 

subject matter of the testimony is clearly within the average person’s grasp.” Sommerfield v. 

City of Chicago, 254 F.R.D. 317, 329 (N.D. Ill. 2008) (Cole, Mag. J.)

I. PASTOR’S OPINIONS RELATING TO PLAINTIFF’S MONELL CLAIM 

ARE IRRELEVANT TO THE CLAIMS AT TRIAL AND SHOULD BE 

BARRED. 

Pastor spends the bulk of his Report discussing Monell-related issues including the

Complaint Review and disciplinary process of the City. Indeed, Pastor comes to the ultimate 
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conclusion that the disciplinary process was inconsistently applied and incorrectly administered 

resulting in a custom and practice that permits, and tacitly consents to, the behavior of the 

officers in this case. See Ex. A, pg. 17. In light of the fact there will be no Monell claim 

presented at trial, Pastor’s opinions regarding these issues are completely irrelevant. 

A. Complaint Register Files are not Relevant or Admissible for any 

Purpose.

Plaintiff lists an extensive number of Complaint Register (“CR”) files as trial exhibits 

(Exhibits 18 and 20) consisting of investigations of complaints against Officer Lucas (Ex. 20) 

and the remaining Defendants (Ex. 18). Pastor reviewed the CR files identified in Ex. 18 in 

addition to other CR files and rendered opinions on the integrity of the investigation process. 

For instance, Pastor noted that several of the CR files he reviewed, including some of the ones 

listed in Ex. 18, were improperly categorized in the computer system leading him to conclude 

that this was done in an effort to minimize the seriousness of the allegation to benefit the accused 

officer. See Ex. A, pg. 11. Putting aside whether this conclusion is even an admissible expert 

opinion, it should be barred because the Monell claim has been mooted by the Stipulation agreed 

to in July 2006. Pastor’s review of the CR files was for the sole purpose of Plaintiff’s claim that 

the City had a custom, practice and policy of failing to investigate and discipline officers who 

planted drugs to frame a person for a crime. Now that the Monell claim has been mooted, 

Pastor’s opinions on the subject are irrelevant and inadmissible.

Moreover, to the extent Plaintiff intends to offer evidence of the CR files or question the 

Police Officer Defendants regarding the allegations made therein, such a use is forbidden by the 

rules of evidence. Rule 404(b) bars the use of evidence of other bad acts to prove the 

defendant’s propensity to commit those bad acts, which is precisely what Pastor concludes: “the 

old adage holds true: the best predictor of future behavior is past behavior.” Ex. A, pg. 15. 
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Regardless of the “old adage,” the rules of evidence limit the introduction of such evidence to 

very specific circumstances, none of which are applicable here. See Defendants’ Motion in 

Limine to Bar Improper Character Evidence, filed herewith. Therefore, if Pastor is allowed to 

testify to any extent, he should be barred from making any reference to the CR files he reviewed.

B. Pastor Should be Barred From Offering Opinions Regarding 

Investigations into Officer Lucas’ Alleged Conduct.

Pastor’s opinions regarding the number or subject of other complaints made against 

Officer Lucas are inadmissible as expert opinions and pursuant to the rules of evidence. In his 

report, Pastor posits:

The sheer number and frequency of the allegations – particularly those initiated against

Officer Lucas – should have triggered some corrective response from the department. In 

essence, there are too many similar allegations given by a wide variety of people to be 

simply discounted as false. ... The nature of the allegations is also telling. Is it purely 

coincidence that so many people made allegations of theft and planting drugs? I have 

very strong doubts that these are all coincidence.

Ex. A, pg. 17. First, to the extent that Pastor opines as to the necessity of a corrective response 

from the department, that opinion is relevant only to the now mooted Monell claim. Second, to 

the extent this “opinion” related to defendant Lucas’ conduct alone, Pastor’s use of the CRs to 

support this opinion is in complete contravention of Rule 404(b) which prohibits the use of 

evidence of other wrongs to prove the person acted in conformity with their bad character.

Finally, Pastor’s opinions are inadmissible because he is essentially making a determination that

allegations made against Officer Lucas are true. An expert witness “may not usurp the jury’s 

function to weigh evidence and make credibility determinations.” Davis v. Duran, 277 F.R.D. 

362, 370 (N.D. Ill. 2011) (Cole, Mag. J.). 
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C. The Investigation of this Incident is Irrelevant.

Lastly, Pastor should not be permitted to testify as to the investigation related to this 

incident. The investigation resulted in a finding of unfounded1

For these reasons, Pastor should be barred from offering any testimony relating to 

Plaintiff’s Monell claim, including reference to any CR files he reviewed, any opinions he has 

regarding complaints made against Officer Lucas, or any of the other Defendants, and regarding 

the investigation into this incident.

because the complainant, 

Plaintiff, would not give a statement to investigators because of the pending federal lawsuit. In

his report, Pastor concludes that the finding of unfounded “further illustrates the custom and 

practice of the department.” Ex. A, pg. 16. Clearly, Pastor’s review and opinion of the 

investigation related to this incident pertain solely to Plaintiff’s Monell claim against the City, 

and have no bearing at trial. Therefore, Pastor should be barred from making any reference to the 

investigation of this incident. See Davis, 277 F.R.D. at 368 (barring opinion as to the adequacy 

of the post-incident investigation as it was not relevant to the facts at issue and would

“impermissibly deflect the jury’s attention from the critical issue in the case.”). 

II. PASTOR’S OPINIONS REGARDING POLICE PRACTICES AND 

PROCEDURES ARE UNRELIABLE AND WILL NOT ASSIST THE 

JURY.

The second area of Pastor’s opinions relate to the actual incident in this case. In the 

section entitled “Arrest and Police Procedures,” Pastor offers the following opinions:

1) Pastor does not “believe” that the anonymous call led to the surveillance which 

resulted in Plaintiff’s arrest;

2) The release of the female passenger in Plaintiff’s vehicle was “legally 

questionable” and procedurally improper in relation to Chicago Police policy and 

procedure.

 1

 A complaint is unfounded when an allegation is false or not factual.
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3) Pastor also back tracks into his opinions regarding the disciplinary system to 

opine that the Chicago Police Department’s failure to detect and correct the 

problematic behavior he observes in the Officers’ CRs (see Section I. B above)

led to Plaintiff’s unconstitutional arrest.

 

These opinions, in their entirety, should be barred because they violate the basic tenants of Rule 

702 as well as 403. Pastor’s opinions are not helpful to the trier of fact, they are impermissible 

credibility determinations, they are conclusory, they are not based upon sufficient data, there is 

nothing reliable about his principles or methods and they are nothing more than Plaintiff’s cross 

examination of the officers and closing arguments as to why the Defendants should not be 

believed dressed-up under the guise of “expert testimony.” Pastor’s opinions should be barred at 

trial.

A. “I do not believe that the “anonymous call” lead [sic] to the 

surveillance which resulted in arrest.” (Ex. A at 17.)

The most striking problem with this opinion is that it is an impermissible credibility 

determination. Such an opinion is not “helpful” to the jury, within the meaning of F.R.E. 702 

because it essentially usurps the jury’s role of making credibility determinations. To permit 

Pastor to testify that he “believes” the Defendant Officers’ version of events is untrue would be 

reversible error. “An expert may not tell the jury whom to believe, nor can he make credibility

determinations.” Sommerfield, 245 F.R.D. at 330, citing Goodwin v. MTD Prods., Inc. 232 F.3d 

600, 609 (7th Cir. 2000). Yet that is precisely what Pastor’s opinion does when he uses such 

phrases as “I do not believe” and “These factors, in my mind...” (Ex. A at 17-18.) 

In fact, Pastor’s deposition testimony, not surprisingly, is laden with these types of 

credibility determinations. A few examples include:

Q: So is it your opinion that Officer Lucas is lying when he 

says [Janusz’s car jumped the curb]?

A: You keep wanting me to say lying. I’m not here to call him 

a liar. I am here to say the story doesn’t add up. (Pastor 

Deposition, Exhibit B at 137). 
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Q: In your opinion, is the officer --- are the officers trying to 

hide something by not indicating in the case report that it 

was --- the arrest was made in a gas station?

A: I don’t want to get in anybody’s head, but I can objectively 

look at the facts in this case, and so many of them are out 

of whack that it leaves me to be concerned about the 

veracity of how these reports were done and how these 

arrests went down. (Ex. B at 133)

Q: So you don’t believe Officer Lucas when he says he 

received a phone call?

A: He said that. I don’t believe it. (Ex. B at 142.)

Clearly, Pastor’s opinions relate directly to the veracity and credibility of Defendants. 

This is impermissible and there is no legal authority that would allow Plaintiff to introduce an

expert opinion that constitutes evaluations of witness credibility. 

To further support of his disbelief that there an anonymous tip led to Plaintiff’s arrest, 

Pastor points to several uncontroverted facts relating to the anonymous tip and the officers’ 

subsequent actions. The jury is just as qualified as Pastor to assess the evidence relating to the 

anonymous tip. There is nothing about these facts that a jury would need expert testimony to

help them understand. Pastor offers no explanation or insight as to why his “specialized 

knowledge” will help the jury understand the evidence. Indeed, Pastor is merely reciting 

evidence that will be elicited from the officers and then essentially opining about his disbelief of 

this testimony by using such statements as “”it does not make sense,” “flimsy evidence,” “defies 

explanation” and “problematic-at best.” See Ex. A, pg. 18. Pastor’s pejorative laden, 

argumentative “opinion” is nothing more than Plaintiff’s argument dressed up under the guise of 

an expert opinion. Pastor’s use of this very same type of language was deemed inadmissible 

argument and not expert opinion by Judge Cole in Sommerfield. 254 F.R.D. at 334 (barring 
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Pastor from using statements such as “irrational detachment that it defies explanation” and 

“leaves more questions than answers.”)

Most telling as to why Pastor’s opinion is not helpful to the trier of fact is his statement 

that “Judge Dernbach [the criminal court judge] seems to agree, or better said, I agree with the

court[’s]” assessment of the evidence at the motion to quash. Ex. A 18-19. By this statement, 

Pastor is simply trying to introduce into evidence the criminal court’s decision reached after 

hearing the evidence introduced at the motion to quash and by doing so he also seeks validate his 

own opinions. Pastor is essentially offering a legal conclusion, that the stop itself was invalid, 

under the guise of “expert opinion” and then pointing to statements made by Judge Dernbach to 

substantiate his conclusion. This is impermissible. See e.g Davis, 277 F.R.D. at 372 (expert’s 

conclusion that defendant used unreasonable force was inadmissible as “[h]e is simply telling the 

jury how to decide the case, and that he cannot do.”).

In addition to failing to meet any of the requirements of Rule 702, Pastor’s opinions 

should also be barred under F.R.E. 403 which states “[a]lthough relevant, evidence may be 

excluded if its probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, 

or needless presentation of cumulative evidence.” The Supreme Court in Daubert recognized the 

importance of F.R.E. 403 in excluding conclusory or confusing expert testimony. “Expert 

evidence can be both powerful and quite misleading because of the difficulty in evaluating it. 

Because of that risk, the judge in weighing possible prejudice against probative force under Rule 

403... exercise more control over experts than over lay witnesses.” Daubert, 509 U.S. at 595. 

See also, Thompson v. City of Chicago, 472 F.3d 444, 457-58 (7th Cir. 2006) (police procedure 

expert properly excluded under Rule 403.) Here, Pastor’s “opinions” do nothing more than 
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summarize uncontroverted evidence, offer impermissible credibility determinations, and waste 

time by repeating arguments that can be made by counsel under the guise of “expert testimony.” 

Thus, for all these reasons, Pastor’s opinions relating to the anonymous tip should be 

barred.

B. “The release of the female passenger in Mr. Janusz’s vehicle was both 

legally questionable and procedurally improper.” 

This opinion suffers from the same flaws described above with the addition that Pastor 

also seeks to offer opinions regarding the legality of releasing the female passenger and its 

failure to conform to police procedure. Once again, Pastor offers impermissible credibility 

determinations that are the exclusive province of the jury and argumentative language when he 

makes statements such as “I believe these officers acted improperly” and “I see little to no 

reason.” Ex. A at 19. He also once again seeks to bolster and substantiate his “opinions” by 

linking them to statements made by Judge Dernbach at the motion to quash hearing. For the 

reasons discussed above, these opinions should be barred. 

Equally problematic is his conclusory statement that his opinion is derived “[f]rom the 

perspective of Chicago Police policy and procedure.” Despite making this bold statement, 

Pastor’s opinion does not explain his methodology or refer to any specific material as the basis 

for this opinion. Similarly, his use of the phrase “legally unsound” is impermissible because it 

essentially is telling the jury Defendants were acting contrary to the law. This is a factual 

decision for the jury to make, not Pastor. Furthermore, he provides no basis for this statement. 

Pastor lacks the qualifications to opine as to the policies and procedures of the Chicago Police 

Department. He identifies no specific General Order to support his opinion nor any other 

specific policy or procedure. Indeed, the only Chicago Police General Orders he reviewed in this 

case relate to the Complaint Review investigation process. See Ex. A, pg. 1-2. Likewise, the 
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Court will instruct the jury as to the law in this case. Pastor’s opinions are not based upon 

anything other than his own personal opinions as to proper police procedure, which he simply 

characterizes as things the officer “should have” done. 

Such testimony fails the reliability test as it cannot be linked to any data that Pastor 

purportedly reviewed. “[N]othing in either Daubert or the Federal Rules of Evidence requires a 

district court to admit opinion evidence which is connected to existing data only by the ipse dixit

of the expert.” Obrycka v. City of Chicago, 792 F. Supp. 2d 1013, 1025 (N.D. Ill. 2011) (St. 

Eve, J.) (citation omitted). Pastor’s methodology is unreliable because he clearly did not base 

any of his opinions on any actual CPD policy or procedure, or, for that matter, on any generally 

accepted policies and procedures, thus his opinions are inadmissible.

Moreover, F.R.E. 403 provides an additional basis to bar this opinion. Expert testimony 

relating to reporting and release of the female passenger is of such little probative value that 

having an expert provide opinions about it will confuse the issues and mislead the jury into 

putting undue focus on this issue. Plaintiff will be able to cross examine Defendants on this 

issue and Pastor’s “opinions” will be nothing more than repetition of that testimony and 

argument by counsel.

Because Pastor gives no basis for his opinion that the release of the passenger was 

procedurally improper or legally questionable, such an opinion provides little help to the jury, as 

it is not based upon specialized knowledge nor is it the product of reliable principles and 

methods. Likewise, these opinions are conclusory, argumentative, and usurp the function of the 

jury by determining questions of credibility. For these reasons, Pastor should be barred from 

testifying at trial.
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C. “I believe that the [City’s] failure to detect and correct such problematic 

behavior ultimately led to the unconstitutional arrest of Mr. Janusz”

Pastor concludes his report with this sweeping conclusion. (Ex. A 19-20) His 

characterization of the arrest as “unconstitutional” is blatantly impermissible as is the entirety of 

this statement. He apparently draws this conclusion based upon his impermissible opinions 

relating to his disbelief of the Officers in conjunction with his irrelevant Monell related opinions. 

This opinion is clearly inadmissible.

Conclusion

Dr. James Pastor should be barred from testifying at trial as his opinions have been 

rendered irrelevant by the Stipulation entered by the parties removing Plaintiff’s Monell claim 

from trial, and because his remaining opinions lack reliability as required by Rule 702 and 

Daubert, and because they would not assist the jury in determining the facts at issue. 

WHEREFORE, Police Officer Defendants respectfully request that Plaintiff be barred 

from calling Dr. James Pastor as a witness at trial and from utilizing all trial exhibits relating to 

his testimony, specifically Plaintiff’s Exhibits 18, 20 and 25.

Dated: October 25, 2013 Respectfully submitted, 

ALAN LUCAS, PARRIS GEORGE, GINA 

LIBERTI AND AMY MUGAVERO-LUCAS,

 By: s/ Eileen E. Rosen 

One of their Attorneys

Eileen E. Rosen

Stacy A. Benjamin

ROCK FUSCO & CONNELLY, LLC

321 North Clark Street, Ste. 2200

Chicago, Illinois 60654

(312) 494-1000

erosen@rockfuscoconnelly.com