UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ALFRED TOSCANO, 

Plaintiff,

v.

ASHLEY CASE, et al.,

Defendants.

Civil Action No. 11-4121 (FSH)

OPINION

Currently before the Court are a series of pretrial in limine motions filed by Plaintiff

[Docket Entry No. 67] and Defendants [Docket Entry No. 76], as well as motions filed by both 

sides seeking to have the testimony of opposing experts stricken or limited. [See Plaintiff’s

motion at Docket Entry No. 60,; Defendants’ motion at Docket Entry No. 61]. As set forth in the 

pleadings in this matter and in the papers in support of these motions, this case involves a 

number of claims by Plaintiff Alfred M. Toscano against the Township of West Orange and six 

individual Defendants. Plaintiff’s claims all stem from an incident in May of 2010 involving 

Plaintiff’s arrest on suspicion of impersonating a police officer – a charge upon which a state 

grand jury ultimately did not issue an indictment. Plaintiff’s present claims against Defendants 

include common law claims for malicious prosecution, defamatory injury to reputation, negligent 

supervision, intentional infliction of emotional distress, and false arrest and imprisonment, and 

various claims of violations of 42 U.S.C. § 1983. Plaintiff filed opposition to Defendants’ 

Motions in Limine [Docket Entry No. 82] as well as to Defendants’ Motion to preclude expert 

testimony [Docket Entry No. 68]. Defendants also filed opposition to Plaintiff’s Motions in 

Limine [Docket Entry No. 84] as well as to Plaintiff’s motion to exclude expert testimony 
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[Docket Entry No. 75]. Defendant Ashley Case joined in Defendants’ papers. [Docket Entry 

No. 80]. The Court decides these pretrial motions as set forth below.

Plaintiff’s In Limine Motions.

Plaintiff has asserted nine separate in limine motions for the Court’s consideration prior 

to trial. Plaintiff’s first in limine motion seeks a prohibition as irrelevant of any reference at trial 

regarding Plaintiff’s medical history or the introduction at trial of any evidence regarding same. 

Plaintiff makes this request conditional on the Court’s dismissing his claim alleging the 

intentional infliction of emotional distress. As the Court did not dismiss that claim – or, for that 

matter, any of Plaintiff’s claims -- pursuant to Defendants’ initial motion to dismiss or 

Defendants’ motion for summary judgment, see Docket Nos. 15, 81, there is no basis for 

granting Plaintiff’s first in limine motion. Moreover, even assuming there were no existing 

claim for the intentional infliction of emotional distress, it is difficult for the Court to envision 

how Plaintiff’s mental state, as reflected in his medical records, would not at least be relevant to 

damages claims potentially arising from the other claims at issue. The Court further finds that 

that the probative value of this evidence outweighs the factors of potential concern outlined in 

Federal Rule of Evidence 403. Accordingly, Plaintiff’s first in limine motion will be denied. 

Plaintiff’s second in limine motion seeks the prohibition as irrelevant of any reference at 

trial to an incident involving the murder of Plaintiff’s cousin by his nephew and the subsequent 

involvement of Plaintiff’s brother in hiding the body. While the Court accepts Plaintiff’s 

position that such evidence would be entirely irrelevant for any suggestion that his family is 

prone to violence, the Court also credits Defendants’ argument that this information is relevant to 

Plaintiff’s state of mind at the time of the incidents underlying this matter and therefore relevant 

on the subject of damages. Defendants point out specifically that just prior to events giving rise 
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to this matter, Plaintiff’s physician noted that Plaintiff was suffering from stress related to 

“relatives who have legal problems.” Certification of Richard D. Trenk (hereinafter “Trenk 

Cert.”), Exhibit A [Docket No. 84, Document 84-1]. The Court further finds that that the 

probative value of this evidence outweighs the factors of potential concern outlined in Federal 

Rule of Evidence 403. Accordingly, Plaintiff’s second in limine motion will be denied.

Plaintiff’s third in limine motion seeks preclusion as irrelevant of any reference by 

Defendant Patrick Matullo to a 2012 incident in Mississippi involving homicides by a person 

impersonating a police officer. Plaintiff contends this incident could not have been relevant to 

Defendant Matullo’s state of mind when he decided to arrest Plaintiff in 2010 because the 

Mississippi incident postdated his arrest by two years. Defendants respond that the Mississippi 

incident was only offered by Defendant Matullo at his deposition as an example of what can go 

wrong in police officer impersonation cases and not to show Defendant Matullo’s state of mind 

at the time of Plaintiff’s arrest. The Court determines that reference at trial by Defendant 

Matullo to the Mississippi incident is clearly irrelevant to Defendant Matullo’s state of mind at 

the time of Plaintiff’s arrest in 2010 and cannot be admitted for that purpose. Moreover, the 

Court finds that reference to the Mississippi incident will otherwise do comparatively little to 

assist the jury in considering this matter at trial, while the nature of the reference – i.e. a 

homicide – might be unduly prejudicial to Plaintiff and therefore violative of Federal Rule of 

Evidence 403. Accordingly, Plaintiff’s third in limine motion will be granted.

Plaintiff’s fourth in limine motion seeks preclusion at trial under Federal Rule of 

Evidence 404 of any reference to “road rage” incidents in which Plaintiff was or may have been 

involved. Defendants counter that these incidents are admissible under Federal Rule of Evidence 

406 because they constitute a “habit” on the part of Plaintiff regarding how he responds to traffic 
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incidents. In Becker v. ARCO Chemical Co., 207 F.3d 176, 203 (3d Cir. 2000), the Third 

Circuit Court of Appeals addressed the distinctions between character and habit evidence. 

There, the Court of Appeals referred to the Advisory Committee notes to Rule 406 which 

observe that while character and habit evidence are “close akin,” evidence of habit is “more 

specific,” it involves “one’s repeated response to a specific situation,” and it contemplates the 

doing of habitual acts almost semi-automatically. Id. Here, evidence has not been offered that 

Plaintiff has such a fixed and almost semi-automatic reaction to past traffic incidents such that 

evidence of his responses may be introduced as habit under Rule 406. Obviously, each of 

Plaintiff’s prior traffic incidents was unique in some respects, and his responses to them were 

neither exactly the same nor “semi-automatic” in the Rule 406 sense. Accordingly, Plaintiff’s 

fourth in limine motion will be granted.

Plaintiff’s fifth in limine motion seeks preclusion as irrelevant of any reference by 

Defendants to a prior police incident report (#8047457) that is set forth in the incident report 

underlying the current dispute (#10016113). See Trenk Cert., Exhibit F (current incident report)

[Docket Entry No. 84-7]. Plaintiff argues that introduction of evidence of this prior incident, 

involving a charge of harassment, is inappropriate under Federal Rule of Evidence 404. In 

response, Defendants argue that they will not seek to introduce evidence of this prior incident to 

show Plaintiff’s propensity for a certain type of behavior, but rather to establish how they were 

able to locate Plaintiff and to establish their own lack of malice. Clearly, the prior incident 

report cannot be introduced to show Plaintiff’s propensity for certain behavior, but it is relevant 

to the pertinent question of how Defendants located Plaintiff. Consequently, the reference to a 

prior incident report contained in the incident report underlying the current dispute is admissible 

for that limited purpose. The Court will deny Plaintiff’s fifth motion in limine; however,
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Plaintiff may at trial request an appropriate limiting instruction with respect to that information. 

United States v. Green, 617 F.3d 233, 249 (3d Cir. 2010).1

Plaintiff’s sixth in limine motion seeks to have excluded at trial as irrelevant and unduly 

prejudicial evidence of liens or judgments against him. Defendants, in turn, point out that as part 

of his present lawsuit Plaintiff claims that he lost financial opportunities as a result of the actions 

of Defendants. See Trenk Cert., Exhibit C (Plaintiff’s Complaint, ¶¶ 47 and 84) [Docket Entry 

No. 84-4]. Defendants further argue that the evidence of liens and judgments against Plaintiff is 

relevant because it tends to show that Plaintiff’s financial situation today is largely unchanged 

from the time before the incident in question. Clearly, by pleading “lost job opportunities” see

Complaint, ¶ 47, and “loss of income,” see Complaint, ¶ 84, Plaintiff has placed at issue his 

financial well-being both before and after the incident in question, and the information 

Defendants seek to introduce regarding Plaintiff’s financial situation is therefore relevant. The 

Court further finds that that the probative value of this evidence outweighs the factors of 

potential concern outlined in Federal Rule of Evidence 403. Accordingly, Plaintiff’s sixth in 

limine motion will be denied.

Plaintiff’s seventh in limine motion, closely related to his fourth, seeks preclusion at trial 

under Federal Rule of Evidence 404 of any reference to his past driving history or documentary 

evidence related thereto. Defendants offer the same arguments in opposition to this motion as 

they did in opposition Plaintiff’s fourth in limine motion; consequently, for the reasons cited in 

its treatment of Plaintiff’s fourth in limine motion, supra, the Court will grant Plaintiff’s seventh 

in limine motion.

 1 The Court notes that the other purpose for which Defendants suggest it might seek to introduce this information –

to establish its own lack of malice – might very well give rise to a valid objection under Federal Rule of Evidence 

404. The Court does not offer a final opinion as to that issue at this time, however, but instead leaves that for 

determination at trial. 
6

Plaintiff’s eighth in limine motion seeks to preclude as irrelevant the introduction of any 

evidence or exhibits showing that he has a firearms license. Defendants offer little, if any, 

argument in opposition to this motion, and the Court fails to see how such evidence might be 

relevant to the claims or defenses at trial and agrees that introduction of such evidence would 

also be unduly prejudicial to Plaintiff. Accordingly, Plaintiff’s eighth in limine motion will be 

granted.

Plaintiff’s ninth and final in limine motion seeks to preclude as irrelevant and unduly 

prejudicial an evidence regarding his efforts to expunge the subject arrest from state and 

municipal records. Defendants argue that this information is relevant because any successful 

expungement of these records will have some bearing on Plaintiff’s claims regarding “lost job 

opportunities” see Complaint, ¶ 47, and “loss of income,” see id., ¶ 84. As noted, supra, Plaintiff 

has placed at issue his financial well-being both before and after the incident in question; 

consequently, his efforts to expunge these records and his likely success in so doing will have 

some bearing on those claims and are therefore relevant. The Court further finds that that the 

probative value of this evidence outweighs the factors of potential concern outlined in Federal 

Rule of Evidence 403. Accordingly, Plaintiff’s ninth in limine motion will be denied.

Defendants’ In Limine Motions.

Defendants have asserted five separate in limine motions for the Court’s consideration 

prior to trial. Defendants’ first in limine motion seeks the preclusion under Federal Rules of 

Evidence 401 and 403 of any testimony at trial by Plaintiff’s two minor children. Defendants 

argue that the parties have stipulated regarding all relevant events of which the children may 

have knowledge and that their testimony would therefore be unnecessarily cumulative and 

intended merely to inflame the finder of fact. Plaintiff counters that the children can give 
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valuable insight beyond any stipulations that have been made regarding the relevant events of 

which they have knowledge – namely, the manner in which police behaved when they first came 

to Plaintiff’s home – and that their testimony would neither be needlessly cumulative nor unduly 

prejudicial. The Court agrees that the children’s expected testimony would go beyond any basic 

stipulations the parties have made in this matter, and it further agrees that the testimony of the 

children, if properly limited to the relevant facts, will not be so prejudicial to Defendants as to 

justify its preclusion under Rule 403. Accordingly, Defendants’ first in limine motion will be 

denied.

Defendants’ second in limine motion seeks the preclusion at trial of any evidence 

concerning the state grand jury’s determination with respect to the charge against Plaintiff of 

impersonating an officer. In support of their motion, Defendants cite to the decision in Galbraith 

v. Hartford Fire Ins. Co., 464 F.2d 225, 226 (3d Cir. 1972), which, they assert, precludes the 

introduction of any such evidence at trial. Plaintiff counters by stating that the Galbraith

decision is inapposite because it only addresses the admissibility of a grand jury’s failure to 

indict for the purpose establishing probable cause; it does not address the use of such evidence 

for the purpose of establishing that the underlying criminal proceeding terminated in Plaintiff’s 

favor – a key element in establishing a cause of action for malicious prosecution. 

The Court agrees with Plaintiff. While the Galbraith decision does appear to disapprove 

of using a grand jury’s failure to indict for the purpose establishing probable cause, it does not 

directly address the admissibility of such evidence for establishing the pertinent element in a case 

for malicious prosecution – i.e. termination in favor of Plaintiff. Moreover, one of the cases 

principally relied upon in the Galbraith opinion, Stein v. Schmitz, 137 N.J.L. 725 (1948), does in 

fact cite authority concerning the use of a grand jury’s decision to establish this element of a 
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malicious prosecution claim and notes that, for this purpose, use of such evidence is appropriate. 

Id. at 727. Accordingly, Plaintiff may introduce evidence of the state grand jury’s “no bill” for 

this discrete purpose, and Defendants’ second in limine motion will therefore be denied.2

Defendants’ third in limine motion seeks the preclusion at trial of two witnesses listed by 

Plaintiff in the Joint Final Pretrial Order: Police Sergeant Steven DeRosa and Police Chief 

Abbott. Defendants argue that Plaintiff should be barred from calling these witnesses because he 

never identified them as potential trial witnesses before naming them in the Joint Final Pretrial 

Order and because their testimony would be irrelevant and/or unnecessarily cumulative. Plaintiff 

opposes by stating that his failure to identify these witnesses was harmless, citing In Re 

Mercedes Benz Antitrust Litigation, 225 F.R.D. 498, 506 (D.N.J. 2005), and that their testimony 

will be relevant and non-cumulative. Plaintiff does not, however, dispute that he did not list or 

otherwise identify these witnesses as potential witnesses for trial at any point before the entry of 

the Joint Final Pretrial Order. The Court determines that because these two witnesses were not 

identified earlier, Defendants were indeed deprived of the opportunity to have them deposed 

them during discovery, as would normally be their right. This has created unfair surprise for 

Defendants that cannot be remedied at this late date. See Mercedes Benz, 225 F.R.D. at 506.3 

Accordingly, Defendants’ third in limine motion will be granted.

 2 Defendants also point out that Plaintiff failed timely to identify at the time of the pretrial order any documentary 

evidence of the state grand jury’s “no bill” that he intended to introduce at trial. While this observation is well-taken 

and might ordinarily preclude the use of a document at trial, Plaintiff would still be free to testify at trial as to the 

state grand jury’s “no bill.” Moreover, the parties have already stipulated in the Joint Final Pretrial Order as to the 

negative action taken by the grand jury. See Joint Final Pretrial Order, Docket Entry No.62, at 7, ¶ 21. 

Accordingly, for clarity of presentation, Plaintiff will be allowed to introduce testimonial and documentary evidence 

regarding the grand jury’s “no bill” for the purpose of establishing the pertinent element of his claim for malicious 

prosecution.

3 While the Court grants this motion in limine because these witnesses were not timely identified in discovery, the 

Court would note that the testimony to be adduced from these two witnesses may indeed be needlessly cumulative 

as well because it appears that similar testimony can and will be offered by Plaintiff’s other witnesses.
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Defendants’ fourth in limine motion seeks to have Plaintiff’s claims for punitive damages 

barred and, per procedures applicable under New Jersey statutes, addressed only in a bifurcated 

hearing if there is a verdict in favor of Plaintiff. Plaintiff, in turn, points out that this is first and 

foremost an action under 42 U.S.C. § 1983 and urges that no bifurcation on the issue of punitive 

damages is necessary. 

With respect to the availability of punitive damages, Plaintiff rightly observes that 

punitive damages cannot be sought from or assessed against municipalities under § 1983. City 

of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1983).4 It is further clear that individual 

officials may be sued for punitive damages under § 1983. Feldman v. Philadelphia Housing 

Authority, 43 F.3d 823 (3d Cir. 1994). Consequently, Plaintiff’s claims for punitive damages 

under § 1983 will proceed in accord with these precedents.

As regards Defendants’ bifurcation request, the Court agrees with Plaintiff that this action 

is primarily an action under § 1983, and that § 1983 does not require the type of bifurcation that 

Defendants request with respect to punitive damages. To the extent that Plaintiff has brought 

viable state law tort claims under the New Jersey Tort Claims Act, that does not change the facts

that this case is in this Court by virtue of § 1983 and that the proper procedure for an action 

under § 1983 should govern. See, e.g., Robinson v. Jordan, 2012 WL 2397446, at *1 n.4 (D.N.J. 

June 25, 2012). It can hardly be the purpose of the supplemental jurisdiction statute, 28 U.S.C. §

1367, to create the potential for multiple, confusing, and potentially cumulative procedures at 

trial for assessing liability and damages. Accordingly, Defendants’ fourth in limine motion will 

be denied.

 4 It similarly appears that municipalities cannot be sued for punitive damages under New Jersey law. N.J.S.A. 59:2-

10.
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Finally, Defendants’ fifth in limine motion requests an order precluding as irrelevant the 

admission at trial of certain Facebook pages which Plaintiff claims will show the friendly 

relationship between certain people who took actions in this matter that were adverse to him. 

Given the general broad scope normally accorded to the concept of relevance, the Court is 

hesitant to bar outright reference at trial to these Facebook pages and therefore denies this 

motion. The motion will only be denied without prejudice, however, to Defendants’ right to 

raise it again at trial should Plaintiff fail to proffer a sufficient reason as to why admission of a 

particular Facebook page will assist the trier of fact in considering facts of consequence to the 

litigation. Fed. R. Evid. 401.

Cross Motions to Exclude Expert Testimony.

Both Plaintiff and Defendant have filed motions to exclude the testimony of the other 

side’s expert. [See Plaintiff’s motion at Docket Entry No. 60; Defendants’ Motion at Docket 

Entry No. 61]. Specifically, Defendants seek an order precluding at trial the testimony of

William F. Kraus (“Kraus”), a retired police official whom Plaintiff offers as an expert regarding 

proper law enforcement practices and procedures. Similarly, Plaintiff seeks an order precluding 

at trial the testimony of Joseph Craparotta (“Craparotta”), a retired police official whom 

Defendants likewise offer as an expert regarding proper law enforcement practices and 

procedures. 

In his fifteen page report, Kraus first identifies and summarizes the materials he reviewed 

relating to this case, he then discusses those materials in some detail, and he finally offers 

approximately two pages of conclusions. See Certification of Mark Y. Moon (hereinafter “Moon 

Cert.”), Exhibit A [Docket No. 60, Document 60-11]. Generally speaking, the conclusions 

offered by Kraus focus on: 1) his view of the propriety of the actions taken by West Orange 
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police officials with respect to Plaintiff; 2) the need for policies regarding potential conflicts of 

interest in police departments; 3) the propriety of the supervision exercised in this case by West 

Orange police officials over subordinates; 4) whether the arrest warrant obtained for Plaintiff 

was obtained without a finding of probable cause; 5) whether the West Orange Police 

Department improperly accommodated Ashley Case when it took action against Plaintiff; 6)

whether a Summons should have been issued for Plaintiff rather than an arrest warrant; and 7) 

whether Defendants violated Plaintiff’s civil rights.

In his thirty nine page report, Craparotta spends the first thirty five pages analyzing 

material relevant to this case, discussing background information regarding the Township of 

West Orange and the West Orange Police Department, and offering opinions as to specific 

actions taken by Defendants in this matter. See Certification of Oleg Nekritin (hereinafter 

“Nekritin Cert.”), Exhibit A-1 [Docket No. 61, Document 61-5]. Craparotta’s opinions with 

respect to this case are then restated in summary fashion in the last four pages of his report. 

Generally speaking, the conclusions offered by Craparotta focus on: 1) his view of the propriety 

of the actions taken by West Orange police officials with respect to Plaintiff; 2) the professional 

nature of the West Orange Police Department; 3) the propriety and sufficiency of the training of 

West Orange police officials (particularly with respect to the concept of probable cause); 4) the 

credibility of the stories told by Plaintiff and Ashley Case; 5) the possibility that road rage played 

a part in the confrontation between Plaintiff and Ashley Case; 6) the existence of probable cause 

to arrest Plaintiff; 7) the propriety of actions taken by Ashley Case; 8) the propriety of actions 

taken by police officials in this matter; 9) the need for a police department to have special rules 

in place for cases in which family members are involved; 10) his opinion regarding whether 

Ashley Case’s relationship to police officials had any part in the handling of this matter; 11) the 
12

need for Miranda warnings in this case; 12) and his view regarding whether the West Orange 

Police Department was guilty of deliberate indifference with respect to Plaintiff’s rights. 

A. Background Law

Federal Rule of Evidence 702, which governs the admission of expert testimony in 

federal court, 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.

“Rule 702 embodies three distinct substantive restrictions on the admission of expert testimony: 

qualifications, reliability, and fit.” Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000). 

The requirement that an expert be qualified is liberally construed by the Third Circuit, 

which has “eschewed imposing overly rigorous requirements of expertise.” In re Paoli R.R. 

Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). A broad range of knowledge, skills, and 

training qualify a witness as an expert. Id. 

With respect to non-scientific experts, the Court must be careful to scrutinize their 

proposed testimony as closely as that of scientific experts, Fed. R. Evid. 702 Advisory 

Committee’s Notes on 2000 Amendment)(citation omitted), and the Court must take care to 

ensure when it finds an expert qualified to testify on a particular subject that its finding does not 

simply amount to “taking the expert’s word for it.” Id. (quoting Daubert v. Merrill-Dow 

Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995)). Moreover, a proffered expert’s field 

of expertise must encompass the subject matter of the expert’s testimony, Elcock, 233 F.3d at 

742, and not merely be adjacent to it. Player v. Motiva Enterprises LLC, 2006 WL 166452, at *5 
13

(D.N.J. Jan. 20, 2006). Just because a proffered expert is a police officer does not necessarily 

mean that he or she is necessarily qualified to opine on all law enforcement matters. 

Higginbotham v. Volkswagenwerk, 551 F. Supp. 977 (M.D. Pa. 1982).

To be reliable, an expert's opinion must be “based on the ‘methods and procedures of 

science’ rather than on ‘subjective belief or unsupported speculation’; the expert must have 

‘good grounds' for his or her belief.” Paoli, 35 F.3d at 742 (quoting Daubert, 509 U.S. at 589). 

Thus, “[c]ourts need not admit bare conclusions or mere assumptions proffered under the guise 

of ‘expert opinions.’” Feit v. Great-West Life & Ann. Ins. Co., 460 F. Supp. 2d 632, 637 (D.N.J. 

2006). As the Advisory Committee for the Federal Rules of Evidence has noted, however, some 

types of expert testimony are more easily subjected to a methodology and are consequently more 

objectively verifiable. Fed. R. Evid. 702 (Committee Notes). For example, the opinion of a 

physician with respect to whether or not the proper tests were administered to effectively 

diagnose an ailment will answer to a more precise methodology that the opinion of a police 

official regarding normal, expected police practices in a particular situation. For this reason, 

courts have recognized that, in certain situations, expert testimony based on experience alone 

may be acceptable. United States v. Jones, 107 F.3d 1147 (6th Cir. 1997). 

In order to “fit,” the expert's testimony must in fact assist the fact-finder, by providing it 

with relevant information necessary to a reasoned decision of the case. Paoli ̧ 35 F.3d at 743; 

Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003). An expert who renders an 

opinion based on factual assumptions not present in the case “cannot be said to ‘assist the trier of 

fact,’ as Rule 702 requires.” Elcock, 233 F.3d at 756 n.13. Consequently, “[t]his type of an 

opinion misleads the fact-finder and arguably does not comply with the ‘fit’ requirement.” Id.
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While the party seeking to present expert testimony must establish by a preponderance of 

the evidence that an expert is qualified and that his or her testimony is reliable, Paoli, 35 F.3d at 

744, rejection of expert testimony is the exception and not the rule, see Daubert, 509 U.S. at 596 

(“Vigorous cross-examination, presentation of contrary evidence and careful instruction on the 

burden of proof are the traditional and appropriate means of attacking shaky but admissible 

evidence.”). There are, however, certain instances in which the testimony of proffered experts 

cannot be approved. Clearly, expert opinions will not be permitted when they are not wellreasoned or too speculative, Roberson v. City of Philadelphia, 2001 WL 210294, at *4 (E.D. Pa. 

Mar. 1, 2001), or when they are beyond the expertise of the expert. Higginbotham, 551 F. Supp. 

at 982-83. Moreover, an expert cannot testify as to ultimate legal conclusions, as to do so would 

improperly invade the province of the court and the jury. AT&T Corp. v. JMC Telecom, Inc., 

470 F.3d 525, 534 (3d Cir. 2006). This is particularly true when an expert is offered to testify in 

with respect to a potential violation of rights secured under the Constitution. See Whren v. 

United States, 517 U.S. 806, 815 (1996); Smith v. New Jersey, 2013 WL 3658786, at *5 (D.N.J. 

July 11, 2013).

B. Analysis

Given these standards governing the admission of expert testimony, it is clear to the 

Court that there are problems regarding the admissibility of significant portions of the proposed 

expert testimony for both sides. 

With respect to the proposed testimony of Plaintiff’s expert, Kraus, a few problems are 

readily apparent. First, the ultimate conclusion he offers at the end of his report – that 

Defendants violated Plaintiff’s civil rights – is clearly an inappropriate legal conclusion that he 

cannot offer at trial. Kraus’s opinions that the arrest warrant in this case was obtained without a 
15

proper showing of probable cause and that a Summons should have been used instead also 

violate the basic tenet that experts shall not opine regarding legal issues or questions. Also 

improper are Kraus’s opinions regarding the overall reasonableness of the various actions taken 

by police officials in this case and the reasonableness of the supervision provided within the 

West Orange Police Department. See Alvarado v. Oakland County, 809 F. Supp.2d 680, 690-91 

(E.D. Mich. 2011)(expert may testify regarding nationally recognized police standards and 

departmental guidelines, but could not opine as to whether police official’s conduct was 

unreasonable); Smith, 2013 WL 3658786, at *5; see also United States v. Korbe, 2010 WL 

4639042, at *4 (W.D. Pa. Nov. 8, 2010)(issue of reasonableness generally not a subject of expert 

testimony but best left for jury). Finally, Kraus’s opinion that the West Orange Police 

Department did what it did as an improper accommodation to Ashley Case is speculative and 

does not implicate any special expertise on the part of Kraus such that it may be introduced at 

trial. 

These observations do not mean, however, that the testimony of Plaintiff’s expert need be 

stricken in its entirety. Although Defendants argue that Kraus is unqualified to testify as to the 

matters in question, his many years in law enforcement, including nearly 40 years as an Officer 

in the Rutherford, New Jersey Police Department, mean he is well-versed in proper police 

practices and procedures and is indeed qualified to testify as to same. Moreover, while 

Defendants urge that Kraus did not apply appropriately exhaustive or specific methodologies to 

his analysis of this case, the Court recognizes that not every subject on which an expert might 

properly opine necessarily admits of a specific methodology. See Fed. R. Evid. 702 (Committee 

Notes). Lastly, although Defendants raised in their supplemental submission to the Court the 

notion that claims implicating constitutional concerns (i.e. claims under § 1983) are not a proper 
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subject for expert testimony, see Defendants’ Supplemental Memorandum, at 5-6 [Docket No. 

102, Document 102-1], expert testimony is clearly not forbidden in such situations. See Nicini v. 

Morra, 212 F.3d 798, 817 n.3 (3d Cir. 2000) (testimony regarding proper police training 

permitted) (citation omitted). 

In light of the foregoing, the Court is inclined to permit Plaintiff’s expert, Kraus, to 

testify at trial, but to limit his testimony to: 1) matters covered in his report which concern 

typical police department policies, methods, training, and supervision as those would relate to the 

issues presented in this matter; 2) the general purpose to be served by those examples of typical 

police department policies, methods, training, and supervision; and 3) observations from his 

report regarding whether those typical police department policies, methods, training, and 

supervision were in fact followed in this case. The Court recognizes that, in the final analysis, 

Plaintiff is offering the testimony of Kraus for the rather unremarkable proposition that a police 

officer must not behave in a biased fashion, and the Court is not convinced that his testimony 

will be of huge value to the jury. Still, it may be of some value, and given the general liberal 

approach in this Circuit regarding the admission of expert testimony, the Court has decided it 

will allow the testimony on the limited basis described herein. 

With respect to the proposed testimony of Defendants’ expert, Craparotta, a number of 

problems are similarly readily apparent. First, a number of the conclusions in Craparotta’s report 

amount to legal conclusions which Defendants cannot offer at trial, including: 1) the existence 

of probable cause to arrest Plaintiff; 2) the need for Miranda warnings at the time of Plaintiff’s 

arrest; and 3) his determination that the West Orange Police Department was not guilty of 

deliberate indifference with respect to Plaintiff’s rights. Additionally, Craparotta’s opinion that 

Plaintiff, in his confrontation with Ashley Case, was suffering from an episode of road rage is 
17

improper as this would appear to involve determinations requiring an expertise in psychology or 

psychiatry that Craparotta does not profess to possess.5 Also improper are Craparotta’s opinions 

regarding the reasonableness of the actions taken by West Orange police officials with respect to 

Plaintiff and the reasonableness and sufficiency of the training afforded West Orange police 

officials, particularly with respect to the concept of probable cause. Furthermore, Craparotta’s 

opinions regarding the credibility of the stories told by Ashley Case and Plaintiff, the 

reasonableness of the actions taken by Ashley Case, and the idea that the West Orange Police 

Department improperly acted in favor of Ashley Case, are matters that would be within the 

common understanding of regular citizens and do not require – and are not benefited by – the 

opinions of a police practices expert. Finally, the Court finds that Craparotta’s general opinions 

regarding the overall professional nature of the West Orange Police Department are of too 

general a nature to be helpful to the jury, and they appear in any event to be offered as evidence 

of conformity that would be barred under Federal Rule of Evidence 404(a). 

Not surprisingly, as Defendants argued in the case of Kraus, Plaintiff urges that 

Craparotta should be disqualified because he in unqualified and because his opinions do not 

answer to a specific methodology. The Court finds, however, that with respect to qualifications, 

Craparotta’s nearly thirty years of service on the front line of law enforcement mean he, like 

Kraus, is well-versed in proper police practices and procedures and is indeed qualified to testify 

as to same. Additionally, while Plaintiff challenges Craparotta on the basis of methodology, the 

Court would reiterate its observation that that not every subject on which an expert might 

properly opine necessarily admits of a specific methodology. Accordingly, the Court will 

similarly permit Craparotta to testify at trial, but his testimony will likewise be limited to: 1) 

 5 The Court would note that an additional problem with Craparotta’s conclusions regarding the existence of probable 

cause to arrest is that his determination relies in part on his determination that Plaintiff was suffering from road rage 

at the time of the confrontation.
18

matters covered in his report which concern typical police department policies, methods, 

training, and supervision as those would relate to the issues presented in this matter; 2) the 

general purpose to be served by those examples of typical police department policies, methods, 

training, and supervision; and 3) observations from his report regarding whether those typical 

police department policies, methods, training, and supervision were in fact followed in this case.

Conclusion

For the foregoing reasons, the Court will deny Plaintiff’s first, second, fifth, sixth, and 

ninth in limine motions; it will grant Plaintiff’s third, fourth, seventh, and eighth in limine

motions, it will deny Defendant’s first, second, fourth, and fifth in limine motions; it will grant 

Defendants’ third in limine motion; and it will grant in part and deny in part the motions of both 

parties to preclude the trial testimony of their opponent’s expert.6 An appropriate Order 

accompanies this Opinion.

 s/ James B. Clark, III

JAMES B. CLARK, III

United States Magistrate Judge

Dated: September 20, 2013

 6 The Court notes that its denials of Plaintiff’s fifth in limine motion and Defendants’ fifth in limine motion are with 

the qualifications set forth in this Opinion, supra.