English v. District of Columbia

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 15, 2011 Decided July 1, 2011

No. 09-7150

CHRISTOL ENGLISH, AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF JASON TAFT,
APPELLANT

v.

DISTRICT OF COLUMBIA AND KEVIN MCCONNELL,
DETECTIVE, METROPOLITAN POLICE DEPARTMENT,
IN BOTH HIS OFFICIAL AND INDIVIDUAL CAPACITIES,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01337)

Gregory L. Lattimer argued the cause and filed the briefs
for appellant.

Carl J. Schifferle, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellees. With him on the brief were Peter J. Nickles,
 2

Attorney General, Todd S. Kim, Solicitor General, and Donna
M. Murasky, Deputy Solicitor.

Before: ROGERS and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: A jury found for the District of
Columbia government and a detective of the Metropolitan Police
Department (“MPD”) (together, “the government”), in this case
alleging a section 19831 claim for the use of excessive force in
violation of the Fourth Amendment and common law claims for
assault and battery. Appellant, as personal representative of her
brother’s estate, sued to recover damages for the shooting death
of her brother by the detective, and she contends on appeal that
she did not receive a fair trial. The principle issue concerns the
district court’s rulings on the inadmissibility of portions of an
internal MPD report regarding the altercation between the
detective and appellant’s brother. A related issue involves a
violation of the pretrial disclosure requirements of Federal Rule
of Civil Procedure 26.

Specifically, appellant contends that the district court’s
evidentiary rulings allowed the government to maintain a
“contrived” defense that the detective’s actions were
constitutionally permissible while denying her the ability to
refute it. Appellant’s Br. 29. We find no abuse of discretion by
the district court. The record reveals that it properly excluded
those parts of the report likely to confuse the jury and unfairly
prejudice the government. We conclude that the government
failed to comply with Rule 26(a)(2)(E) by not supplementing the
medical expert’s disclosure to reflect an interview with the

1
See 42 U.S.C. § 1983.
 3

detective on which the expert intended to rely at trial, but, in
view of appellant’s cross-examination of the expert after
receiving the expert’s interview notes, that the violation was
harmless and so the district court’s refusal to strike the expert’s
testimony is not reversible error. Accordingly, because
appellant’s other claims of error and her bias claim are
unpersuasive, we affirm.

I.

According to Detective Kevin McConnell’s testimony at
trial, late on the night of August 3, 2007 he was driving on Good
Hope Road in Southeast Washington, D.C. when he observed an
altercation inside a carry-out restaurant. As he pulled over to the
curb, he saw a man pulling on the door separating the customer
area from the kitchen. McConnell, dressed in plainclothes but
displaying his badge on a chain around his neck, entered the
carry-out and announced, “Police.” Tr. Nov. 16, 2009 p.m., at
85. The man — who turned out to be Jason L. Taft — walked
up to McConnell “aggressively,” prompting McConnell to push
Taft backwards. Id. at 86. Taft responded: “Why did you hit
me, Officer?” Id. at 40. McConnell told him he was under
arrest, after which a lengthy and violent struggle ensued during
which the two men “went down to the ground several times,” id.
at 87, took turns attempting to gouge each other’s eyes out, and
exchanged bites. Then McConnell put Taft in a “Full Nelson”
hold, from which Taft managed to break free, and Taft began to
run for the door. McConnell attempted to grab him by the
collar, but Taft ducked, and McConnell flipped over and hit his
head on the concrete pavement. By this point — several
minutes into the brawl — McConnell was “completely gassed
out” and having trouble breathing. Id. at 88. With McConnell
still on his knees, Taft approached, placed his arms around his
neck, and told him, “I’m going to choke you out, motherfucker.”
Id. at 89. Taft placed the full weight of his body on
 4

McConnell’s carotid arteries, restricting the flow of blood to his
brain, and McConnell began to black out. As McConnell was
trying to push Taft off him, McConnell pulled out his nine
millimeter service pistol and pulled the trigger. McConnell
could not hear anything besides a “click,” and his vision was
coming and going. Id. He felt Taft’s weight lift off him, but he
thought Taft was “still there,” id. at 90, and squeezed the trigger
two more times.

An internal MPD investigation by Sergeant Scott Gutherie
of the Internal Affairs Bureau Force Investigations Branch
concluded that the first shot fired by Detective McConnell — in
the midst of a struggle over the gun — was “not only objectively
reasonable, but was also in response to an actual attack that
could have resulted in the death of Detective McConnell.” The
report concluded, however, that the second and third shots —
fired while Taft was running away — “were not fired during an
actual or threatened attack,” but only during a “perceived
attack.” FIT Rpt. 23-24. The report, called the Force
Investigation Team Report or FIT Report, summarized findings
based on review of statements by Detective McConnell and
various witnesses who were present during part or all of the
altercation, and the available physical evidence, electronic
communications, and medical reports. Based on this review, the
FIT Report concluded that at the end of an extended violent
confrontation, Detective McConnell began to lose consciousness
and shot Taft in the thigh. Taft — whose posthumous
toxicology test revealed a bodily fluid alcohol content of 0.12 to
0.21% — then separated himself from Detective McConnell and
ran toward the street, at which point Detective McConnell —
still disoriented — fired two shots, one of them missing, the
other striking Taft in the back. Taft later died from this second
gunshot wound. Accordingly, the FIT Report concluded that the
two shots, while perhaps “objectively reasonable,” violated an
MPD policy allowing the use of deadly force only during an
 5

“actual or threatened attack that is imminent.” Id. at 23; see
MPD General Order 901.07:V:D. The Use of Force Review
Board, to whom Sergeant Gutherie submitted his findings,
declined to adopt them and concluded that all three shots were
justified. But Inspector Dierdre Porter, the director of MPD’s
Disciplinary Review Branch, disagreed with the Board and
wrote a referral letter to the assistant chief of MPD’s
Professional Development Bureau recommending the
termination of Detective McConnell’s employment in view of
his policy violation with respect to the use of deadly force
against Taft; a final decision on that recommendation was
pending at the time of trial.

Prior to trial, the government moved to exclude both the
FIT Report and Inspector Porter’s letter. During an in limine
hearing on the motion, the district court heard testimony from
Sergeant Gutherie and Inspector Porter about the procedures and
conclusions of the use of force investigation and
recommendations. The district court ruled that it would not
allow into evidence either the FIT Report or Inspector Porter’s
letter recommending Detective McConnell’s termination,
reasoning that the witness statement summaries would not “tell[]
any different story than the evidence we’re going to hear in this
courtroom about exactly what happened,” and because the
conclusions about the policy violation were “not involved with
deciding the constitutional question of the reasonableness of
force.” Tr. Nov. 16, 2009 a.m., at 27. The district court
explained that although the FIT Report might “at some minimal
level be admissible,” its admission would be “hedged about with
jury instructions,” would likely cause confusion between the
issues before the jury and those before the MPD’s internal
disciplinary trial board, and would result in a “trial within a trial
about the whole District of Columbia disciplinary system.” Id.
at 28. Appellant could, nonetheless, seek to have parts of the
 6

FIT Report admitted into evidence if the door were opened “by
some argument or some evidence that is used in the trial.” Id.

At trial, appellant, through counsel, adduced undisputed
eyewitness testimony from individuals who were in the carry-
out that at least by the time Detective McConnell fired his
second and third shots, Taft was moving away from him. These
witnesses were also interviewed in connection with MPD’s
internal investigation and their statements made part of the FIT
Report. Appellant also called Sergeant Gutherie to testify about
his investigation. During a bench conference, the district court
ruled that Detective McConnell’s admissions, as recounted in
the FIT Report, could be admitted in evidence, but that appellant
had failed to provide a reason for admitting information relating
to the factual basis for Sergeant Gutherie’s findings and
conclusions. Nonetheless, appellant proceeded to question
Sergeant Gutherie at length about the evidence he had
examined.2

In defense, the government called two expert witnesses. The
first, Dr. Richard Restak, an expert in neuropsychiatry, testified
generally about the effect of restricted oxygen flow to the brain
on perceptive and cognitive functioning, aided by an in-court
demonstration by Detective McConnell of the chokehold in
which he claimed Taft had held him. Dr. Restak explained that

2
When re-called by the government, Sergeant Gutherie
testified about an inconsistent statement by one of appellant’s
witnesses regarding the number of shots fired by Detective McConnell
and Taft’s position relative to Detective McConnell at the time the
shots were fired. Over appellant’s objection, the district court initially
allowed this testimony for purposes of impeachment. Upon
reconsideration, the district court struck the testimony and instructed
the jury not to consider it.
 7

in such situations, individuals are overtaken by a primitive fear
of death; their sense of perception and comprehension is
diminished; and their sense of hearing may also be diminished.
On direct examination, the government asked no questions, and
Dr. Restak gave no opinion, specific to the facts of this case,
relying only on his general expertise. On cross-examination,
appellant observed that Dr. Restak had not testified to his
opinion of the case-specific circumstances even though his
pretrial report had provided such an opinion on the basis of his
review of the FIT Report, suggesting perhaps that Dr. Restak’s
opinion was somehow adverse to the government’s case. On re-
direct, the government asked Dr. Restak for his case-specific
opinion, and over appellant’s objection, Dr. Restak opined that
Taft’s chokehold on Detective McConnell “interfered with his
mentation, his cognitive functioning, and that this, just to put it
into a nugget, into a sentence, is what happened.” Tr. Nov. 17,
2009 p.m., at 122.

On re-cross, appellant asked Dr. Restak about the basis of
his opinion. Dr. Restak responded that it was based on his
review of witness statements in the FIT Report, and on his
interview and examination of Detective McConnell in October
2009, even though his Federal Rule of Civil Procedure 26(a)(2)
expert disclosure (dated September 25, 2009) did not mention an
in-person interview and examination of Detective McConnell
and the notice was not supplemented by the government.
Appellant questioned Dr. Restak about this discrepancy. Dr.
Restak agreed he relied in part on the FIT Report, and appellant
began describing parts of the report, which Dr. Restak,
following along, confirmed. The district court allowed this
recitation to continue, over the government’s objection, until
appellant began to discuss the “discrepancies and all of those
other things that are in the report” — an apparent reference to
Sergeant Gutherie’s factual findings and conclusions — at
 8

which point the district court sustained the government’s
objection. Id. at 130.

When appellant persisted in this line of questioning, the
district court excused the jury and stated that it surmised that
appellant was “trying to get [Dr. Restak] to quote the thought
process of Sergeant Gutherie,” and that those thought processes
and opinions were “not coming into evidence.” Id. at 133.
Appellant argued that she should be allowed to use the FIT
Report in its entirety to question the basis for Dr. Restak’s
opinion, and, further, that “his whole testimony ought to be
stricken” because the required expert disclosure either was not
filed or was incomplete. Id. at 134, 137. The district court
informed appellant: “You may not make reference to the
discrepancies portion of the FIT Report, you may not make
reference to the opinions of Sergeant Gutherie. You may use
whatever is in the report that constitutes statements of Detective
McConnell about the choke hold, or of anybody else who saw
the choke hold.” Id. at 138. Thereafter, Dr. Restak, indulging
a hypothetical from appellant, opined that someone who shot
another person for no reason would likely be severely
emotionally disturbed, although not necessarily cognitively
impaired as he believed Detective McConnell had been. When
the government attempted to ascertain whether Dr. Restak found
Detective McConnell to be emotionally disturbed based on his
interview and examination, the district court sua sponte
precluded this line of questioning.

The government’s second expert witness was G. Patrick
Gallagher, an expert in police policies and training related to the
use of force and other areas. When Gallagher began discussing
his work on national standards and internal affairs
investigations, the district court called the parties’ counsel to the
bench and warned the government that Gallagher’s testimony,
if it continued, “is going to open the door to that FIT Report.”
 9

Id. at 154. The government thereafter declined to ask Gallagher
any more questions and he was excused as a witness.

Additionally, the government played for the jury, over
appellant’s objection, tape recordings of telephone calls from
individuals in and near the carry-out reporting the altercation
and requesting police assistance. After closing arguments,
instructions, and deliberation, the jury found for the government,
rejecting appellant’s excessive force and assault and battery
claims. Appellant appeals.

II.

Appellant contends that the district court erred in refusing
to admit into evidence in their entirety the FIT Report and
Inspector Porter’s letter recommending termination of Detective
McConnell’s employment, and thus denied her a fair trial. The
trial record suggests that appellant sought to use the FIT
Report’s conclusion that Detective McConnell violated MPD
policy when he fired his second and third shots at Taft in support
of the excessive force claim. This is confirmed by appellant’s
brief on appeal. The district court excluded portions of the FIT
Report relating to the conclusion that the detective had violated
MPD policy out of concern it would cause the jury to confuse
the policy violation issue — not implicated in the trial — with
the separate question of whether Taft’s constitutional rights were
violated because McConnell’s actions were objectively
unreasonable under the circumstances. Appellant maintains that
excluding this portion of the FIT Report prevented her from
refuting the government’s defense that Detective McConnell’s
conduct was objectively reasonable, a defense she characterizes
as “unequivocally inconsistent” with the content of the FIT
Report and Inspector Porter’s recommendation. Appellant’s Br.
31.
 10

Our review of the district court’s evidentiary rulings is for
abuse of discretion. See Whitbeck v. Vital Signs, 159 F.3d 1369,
1372 (D.C. Cir. 1998). The district court has broad discretion in
ruling on evidentiary matters when “weigh[ing] the extent of
potential prejudice against the probative force of relevant
evidence.” Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625,
633 (D.C. Cir. 2010). Nonetheless, a district court’s decision to
exclude evidence due to the danger of unfair prejudice pursuant
to Federal Rule of Evidence 4033 that is “based on an
understatement of the probative value,” or a “miscalculation of
the danger of unfair prejudice,” is “subject to reversal.”
Henderson v. George Washington Univ., 449 F.3d 127, 133
(D.C. Cir. 2006). Even when the district court has abused its
discretion, reversal is appropriate only upon a concomitant
finding that the error affected appellant’s “substantial rights.”
Whitbeck, 159 F.3d at 1372 (quoting FED. R. CIV. P. 61).

First, as appellant points out, contrary to the government’s
position, the FIT Report and Inspector Porter’s letter are non-
hearsay party admissions under Federal Rule of Evidence
801(d)(2)(D).4 It is undisputed that Sergeant Gutherie and

3
Federal Rule of Evidence 403 provides:

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 the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.

FED. R. EVID. 403.
4
Federal Rule of Evidence 801(d)(2)(D) provides that a
statement is not hearsay if it is offered against a party and is:

a statement by the party’s agent or servant concerning a
 11

Inspector Porter were acting within the scope of their
employment by the District of Columbia government, one of the
defendants in this case — at the time they prepared and
submitted them. The government responds, without citation to
authority, that the documents are not party admissions because
the District government did not “adopt or ratify” them and the
findings were not “final.” Appellees’ Br. 23. The plain text of
Rule 801(d)(2)(D) requires neither adoption nor ratification but
only that the statement is offered “against a party,” FED. R.
EVID. 801(d)(2), and it is “by the party’s agent or servant
concerning a matter within the scope of the agency or
employment, made during the existence of the relationship,”
FED. R. EVID. 801(d)(2)(D); see Talavera v. Shah, 638 F.3d 303,
309-10 (D.C. Cir. 2011). Consequently, the FIT Report and the
letter recommending termination of employment are District
government admissions that were admissible at trial against it
and Detective McConnell in his official capacity, see Wilburn v.
Robinson, 480 F.3d 1140, 1148 (D.C. Cir. 2007).

Second, appellant is partially correct that the documents
were admissible against all defendants — including Detective
McConnell in his individual capacity — because they are
covered by the public records exception to the hearsay
exclusion. This exception provides, inter alia, that records,
reports, or statements setting forth “factual findings resulting
from an investigation made pursuant to authority granted by
law” are admissible “unless the sources of information or other
circumstances indicate lack of trustworthiness.” FED. R. EVID.
803(8)(C). The district court found that the FIT Report’s factual

matter within the scope of the agency or employment, made
during the existence of the relationship[.]

FED. R. EVID. 801(d)(2)(D).
 12

basis was sufficiently reliable under Rule 803(8)(C), noting that
“although it’s based on double, triple hearsay and stale hearsay
at that,” the court was satisfied that it does not “tell any different
story than the evidence we’re going to hear in this courtroom
about exactly what happened.” Tr. Nov. 16, 2009 a.m., at 27.
Sergeant Gutherie’s report was based on his own factual
investigation, and the Supreme Court has held that Rule 803(8)
does not “draw some inevitably arbitrary line between the
various shades of fact/opinion that invariably will be present in
investigatory reports.” Beech Aircraft Corp. v. Rainey, 488 U.S.
153, 169 (1988). Rather, “‘reports . . . setting forth . . . factual
findings’” are admissible, including those portions of the reports
containing opinions rather than facts. Id. (quoting FED. R. EVID.
803(8)(C)). Consequently, the FIT Report falls within the
public records exception to the hearsay rule. Inspector Porter’s
letter does not, because she based her recommendation only on
having “reviewed the investigative [FIT R]eport,” not her own
factual investigation, and Rule 803(8) “bars the admission of
statements not based on factual investigation.” Id.

The government’s suggestion that the FIT Report is not a
Rule 803(8) public record because it was an “‘interim report
subject to revision and review,’” Appellees’ Br. 21, fails because
the report itself was final, and whether or not its author’s
superiors chose to adopt it is irrelevant under Rule 803(8).
There is no suggestion that Sergeant Gutherie had any intention
to revise his report after he submitted it to the Use of Force
Review Board. True, the review board disagreed with his
finding of a MPD policy violation and concluded that Detective
McConnell’s use of deadly force was within MPD policy and
justified. But Inspector Porter overturned this conclusion and
recommended termination of Detective McConnell’s
employment based on the findings and conclusions in the FIT
Report. The fact that the FIT Report had not been finally
adopted or ratified by higher MPD authority prior to trial is
 13

irrelevant to whether it is a Rule 803(8) public record. See In re
Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475,
1481-82 (D.C. Cir. 1991). In re Korean Air Lines involved the
investigation by the International Civil Aviation Organization
(“ICAO”) of the incident in which a civilian airliner was shot
down by Soviet military aircraft. The ICAO’s governing
council directed the organization’s Secretary General to
investigate and prepare a report on the incident. 932 F.2d at
1481-82. Once the Secretary General submitted his final report,
however, the governing council chose not to endorse it. What
mattered, the court held, was not whether the agency chose to
adopt the report, but whether the preparer was “acting in the
capacity of a public official when he conducted ‘an investigation
made pursuant to authority granted by law.’” Id. at 1482
(quoting Rule 803(8)(c)). Consequently, the investigative
report, even though it was not adopted by the overseeing board,
was nonetheless a Rule 803(8) public record. Id. Likewise here,
as Sergeant Gutherie was acting pursuant to his official duty and
his report was sufficiently final, the FIT Report satisfies these
requirements and is therefore not excluded by the hearsay rule.

The district court’s in limine ruling excluding the FIT
Report and Inspector Porter’s letter was without prejudice,
inviting appellant to seek to use portions of the FIT Report if the
door was “opened to its use by some argument or some evidence
that is used in the trial.” Tr. Nov. 16, 2009 a.m., at 28.
Appellant accepted that invitation and sought to get the contents
of the FIT Report into evidence through questioning of Sergeant
Gutherie and Dr. Restak at trial. The district court allowed
appellant to use Detective McConnell’s statements in the FIT
Report (as party admissions) and further allowed extensive
questioning of Sergeant Gutherie and Dr. Restak about the
witness statements and other evidence relied on in the FIT
Report. Thus, appellant elicited Sergeant Gutherie’s findings
that: (i) Taft was shot twice, once in the thigh and once in the
 14

back; (ii) at the time of the initial gunshot, Taft and Detective
McConnell were in contact with one another; and (iii) the fatal
gunshot into Taft’s back occurred when Taft was between six
and fifteen feet away from McConnell. The only part of the FIT
Report that appellant was barred from introducing was the
portion containing Sergeant Gutherie’s conclusions that at the
time Detective McConnell fired the fatal shot he was no longer
under a real attack, but merely a perceived attack, and that this
conduct violated MPD policy concerning the use of deadly
force.

For several reasons it seems clear that the district court did
not abuse its discretion in drawing this line based on its balance
of the probative value of the FIT Report against the danger of
confusion and unfair prejudice. First, as the district court
concluded, the excluded portions of the FIT Report — and all of
Inspector Porter’s letter — were of little assistance to the jury
because they were cumulative of the live witness testimony to
be offered, and in fact offered, at trial. Indeed, the government
never suggested during trial that Detective McConnell was
under a real threat of attack at the time he fired the fatal shot.
All of the eyewitness testimony indicated that Taft was moving
away from Detective McConnell when he fired the final two
shots. The government’s defense, through the testimony of
Detective McConnell and Dr. Restak, focused on the cognitive
deficiency Detective McConnell allegedly suffered at the time
of the fatal shot as a result of the chokehold by Taft. Sergeant
Gutherie’s conclusion that the attack at that point was only
perceived and not real was thus cumulative of the undisputed
evidence at trial.

Second, Sergeant Gutherie’s conclusion that Detective
McConnell violated MPD policy was irrelevant to the question
before the jury because although “police enforcement practices
. . . vary from place to place and from time to time” the Supreme
 15

Court observed that “the . . . protections of the Fourth
Amendment are [not] so variable.” Whren v. United States, 517
U.S. 806, 815 (1996). Moreover, appellant appears to ignore
that admission of the FIT Report in its entirety could have
undermined her section 1983 excessive force claim. The FIT
Report reserves judgment on the constitutional question of
whether Detective McConnell’s actions were objectively
reasonable “from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight,” Graham
v. Connor, 490 U.S. 386, 396 (1989). Indeed, the FIT Report
even acknowledges that Detective McConnell’s actions “might
be considered objectively reasonable.” FIT Rpt. 23. But the
FIT Report explained that the MPD holds its officers to a higher
standard than that required by the Constitution: in addition to
being objectively reasonable at the time, an officer’s use of
deadly force must be in response to “an actual or threatened
attack that is imminent and could result in death or serious
bodily injury.” Id. at 24 (quoting MPD General Order
901.07:V:D:1). So, even if a reasonable officer in Detective
McConnell’s position at the time would have felt compelled to
use deadly force, the officer could still have violated MPD
policy if he was mistaken about being under actual or threatened
lethal attack. The FIT Report concluded that even if Detective
McConnell’s actions were objectively reasonable, the final two
shots “were not fired during an actual or threatened attack,” and
thus violated MPD policy. Id. at 23-24. To the extent this
conclusion has any bearing on the constitutional claim, it could
hinder, rather than help, appellant’s case.

The government further maintains that under District of
Columbia law, violations of MPD General Orders are irrelevant
to appellant’s assault and battery claims, citing Evans-Reid v.
District of Columbia, 930 A.2d 930, 936 (D.C. 2007); Karriem
v. District of Columbia, 717 A.2d 317, 322 (D.C. 1998).
Appellant offers no argument to the contrary, instead
 16

maintaining, without record citation, that during trial the
government put the policy violation in issue by denying that it
occurred, but this alleged denial is nowhere to be found in the
record on appeal.

To the extent these conclusions in the FIT Report were at all
relevant, as appellant contends, the district court still did not
abuse its discretion in ruling that this relevance was outweighed
by the likelihood of confusing the jury and unfair prejudice to
the government. Although as a matter of law the alleged MPD
policy violation has no bearing on the Fourth Amendment
analysis, it would be far less clear to a jury. One could readily
imagine an argument to the jury oversimplifying the matter to
suggest that the prior finding of a policy violation was
inconsistent with the constitutional defense presented at trial —
in fact, appellant makes precisely such an argument on appeal:
“[T]heir prior statements are unequivocally inconsistent with the
positions that the trial court allowed the District to take in this
litigation.” Appellant’s Br. 31. Even without such prodding, a
jury informed of the alleged policy violation and the specific
finding that the attack was perceived but not real at the time of
the fatal gunshot might assign greater weight to these
conclusions — appearing, as they do, in an official MPD report
— than the Fourth Amendment analysis allows. The district
court could reasonably be concerned that this would cause “big
time” confusion of the issues, and preventing such confusion
would require the admission of the conclusions to be “hedged
about with jury instructions” and necessitate a “trial within a
trial about the whole District of Columbia disciplinary system.”
Tr. Nov. 16, 2009 a.m., at 28. Appellant succeeded in getting
substantial evidence before the jury concerning whether the
detective’s conduct was unreasonable. Considering the tenuous
relevance of the excluded portions of the FIT Report, appellant
fails to show the district court’s line-drawing regarding what
portions were inadmissible was an abuse of discretion. See
 17

Brooks v. Chrysler Corp., 786 F.2d 1191, 1198 (D.C. Cir. 1986);
see also Maddox v. Los Angeles, 792 F.2d 1408, 1418 (9th Cir.
1986).

III.

Appellant more persuasively contends that the government
violated Rule 26(a)(2) of the Federal Rules of Civil Procedure
by failing to supplement its initial expert disclosure to reflect
that Dr. Restak had personally interviewed and examined
Detective McConnell.

Prior to trial, on October 8, 2009, the government turned
over to appellant a September 25, 2009 letter from Dr. Restak as
his expert disclosure pursuant to Federal Rule of Civil Procedure
26(a)(2). The letter stated, in pertinent part, that based on Dr.
Restak’s review of the FIT Report and its attachments, he was
of the view that “Detective McConnell was choked and
threatened with death,” causing temporary hypoxia and partial
loss of consciousness, which in turn “would seriously impair his
cognitive functioning.” At trial, on direct examination, the
government did not ask Dr. Restak any case-specific questions,
but only general questions based on hypotheticals and also on
Detective McConnell’s in-court demonstration of Taft’s
chokehold. Dr. Restak testified that in his opinion the sort of
chokehold Detective McConnell demonstrated would likely
cause serious cognitive impairment. On cross-examination,
appellant asked Dr. Restak to confirm that he had not been asked
case-specific questions on direct examination even though he
had provided a case-specific opinion in his expert report. Dr.
Restak — who quibbled separately with the characterization of
his letter as a “report,” suggesting it was less formal than that —
confirmed that he did have an opinion on what happened here
and expressed some surprise that he had not been asked for his
opinion during direct examination. On redirect, the government
 18

asked for the case-specific opinion, and Dr. Restak explained his
opinion was “along the lines of what I described” generally: the
chokehold “interfered with [Detective O’Connell’s] mentation,
his cognitive functioning.” Tr. Nov. 17, 2009 p.m., at 122.

On re-cross, appellant inquired as to the basis for Dr.
Restak’s case-specific opinion. Dr. Restak replied it was based
on the FIT Report, the attachments thereto and on his interview
and examination of Detective McConnell. Appellant, apparently
surprised by the revelation that an in-person interview had taken
place, requested Dr. Restak’s notes from that meeting, which
were turned over, and further ascertained that Dr. Restak did not
submit an additional report to government counsel after his
meeting with Detective McConnell for production to appellant.
Appellant then questioned Dr. Restak at length about the
contents of the FIT Report but did not inquire about the
interview and examination. The district court sustained the
government’s objection when appellant began to inquire about
the portion of the FIT Report containing Sergeant Gutherie’s
conclusions. When appellant nonetheless persisted in this line
of questioning, the district court excused the jury and held a
bench conference. Appellant argued first, that because Dr.
Restak had read and relied on the entire FIT Report, appellant
should be able to ask about the entire FIT Report, and second,
that because Dr. Restak “never issued a report . . . [but was]
allowed to testify” and the government had failed to supplement
the expert disclosure to reflect Dr. Restak’s interview and
examination of Detective McConnell, Dr. Restak’s testimony
should be stricken. Id. at 132; see id. at 134, 137, 138. The
district court denied the motion, ruling that appellant had
“waived that” objection, referring to appellant’s previous
withdrawal of her pretrial objection to the sufficiency of Dr.
Restak’s initial Rule 26(a)(2) disclosure. Id. at 138; see id. at
135-36.
 19

When trial resumed, appellant reviewed Dr. Restak’s notes
on his interview and examination of Detective McConnell, and
then asked a series of questions related to Dr. Restak’s opinion
and credibility, but unrelated to his interview and examination
of Detective McConnell. On further re-direct, the government
sought to inquire whether, during the interview and examination,
Dr. Restak found Detective McConnell to be suffering from an
emotional disturbance, as appellant’s hypothetical had
suggested. The district court sua sponte precluded this line of
questioning.

Rule 26(a)(2) requires a party to disclose to the other parties
six pieces of information concerning an expert witness,
including

(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
them;
(iii) any exhibits that will be used to summarize or
support them;
(iv) the witness’s qualifications, including a list of all
publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous
4 years, the witness testified as an expert at trial or by
deposition; and
(vi) a statement of the compensation to be paid for the
study and testimony in the case.

FED. R. CIV. P. 26(a)(2)(B).

Appellant contends the government violated Rule 26(a)(2)
in two respects: by failing to make a proper expert disclosure
and by failing to supplement the disclosure to reveal the expert’s
interview and examination of Detective O’Connell on which he
 20

would rely in testifying at trial. As regards the first, appellant
maintains that, because Dr. Restak considered his letter to be a
memorandum to himself, not a formal report, the government
failed to make a proper expert disclosure pursuant to Rule
26(a)(2). In the absence of any authority for the premise that the
label the expert himself applies to his submission controls the
analysis of the sufficiency of a Rule 26(a)(2) disclosure,
however, the proper question is whether the disclosure complies
with the rule’s substantive requirements. In this regard,
assuming appellant’s first claim of error is not waived because
it addresses a different point, the substance of Dr. Restak’s
testimony plainly fell within the scope of the statement
contained in his disclosure, which offered a detailed opinion that
Detective McConnell experienced serious cognitive difficulties
as a result of being choked and threatened with death. The third
paragraph of the report also contains general opinions about the
functioning of the brain, both under normal conditions and when
frontal and temporal lobes are damaged. Viewed as a whole, the
report provides the required “complete statement of all
opinions” offered at trial by Dr. Restak. FED. R. CIV. P.
26(a)(2)(B)(i); see R.C. Olmstead, Inc. v. CU Interface, LLC,
606 F.3d 262, 270-71 (6th Cir. 2010).

The government’s Rule 26 disclosure fails, however, as
appellant contends, to provide the full “basis . . . [and] data or
other information considered by the witness” in forming his
opinions. FED. R. CIV. P. 26(a)(2)(B)(i)-(ii). At trial, Dr. Restak
stated that after submitting his initial report to the government,
he interviewed and examined Detective McConnell, and this
interview was one of the bases for his case-specific expert
opinion. Rule 26 requires parties to file a supplemental
disclosure reflecting “[a]ny additions or changes” to the required
Rule 26(a)(2)(B) disclosures, and thus the government was
required to file a supplement reflecting this additional basis for
Dr. Restak’s opinion. FED. R. CIV. P. 26(e)(2); see FED. R. CIV.
 21

P. 26(a)(2)(E). Yet no supplement was ever provided to
appellant reflecting that Dr. Restak’s testimony would also rely
on an in-person interview, a clear violation of this duty to
supplement.

The government’s response that it did not violate Rule 26’s
duty to supplement is unpersuasive. Its claim that appellant has
forfeited the objection by failing to raise it in a timely manner in
the district court is belied by the record, which reflects that
while appellant may have waived her pretrial objection to the
facial sufficiency of the initial Rule 26(a)(2)(B) disclosure, she
promptly objected to the government’s failure to supplement the
report after she learned of Dr. Restak’s interview of Detective
McConnell for the first time on re-cross. Its suggestion this
court may not reach the issue because the Rule 26(a)(2) report
was never made part of the record in the district court relies on
Carter v. George Washington University, 387 F.3d 872, 877
(D.C. Cir. 2004), which is inapposite. Carter concerned a
district court’s grant of summary judgment based on medical
records and other evidence that was not part of the record. Here,
although the Rule 26(a)(2) disclosure was never formally filed
in the district court, its sufficiency was formally brought into
issue during trial and appellant quoted from it at some length
when cross-examining Dr. Restak and referred to it repeatedly
in making the objection to the district court. Because the
disclosure was “treated as part of the record in this case” by the
district court, the document is properly part of the record on
appeal. Eureka Investment Corp. v. Chicago Title Ins. Co., 743
F.2d 932, 945 n.55 (D.C. Cir. 1984). The government’s further
suggestion that it was not required to supplement the Rule
26(a)(2) disclosure because it did not elicit Dr. Restak’s case-
specific opinion on direct examination ignores not only that it
produced Dr. Restak’s case-specific opinion in the Rule 26(a)(2)
disclosure it did make to appellant, but also that it brought out
his case-specific opinion on redirect, even if “only out of
 22

necessity — to counteract the plaintiff’s insinuation during
cross-examination that his unexpressed opinion specific to the
case was unfavorable to the defendants,” Appellees’ Br. 50. Dr.
Restak’s case-specific opinion was not admitted subject to any
limiting instruction, and the government points to no authority
for the proposition that an expert opinion elicited on re-direct
examination is exempt from the requirements of Rule 26(a)(2).
An expert opinion is an expert opinion.

Nonetheless, the district court did not err in declining to
strike Dr. Restak’s testimony, pursuant to Federal Rule of Civil
Procedure 37(c)(1), due to the government’s failure to
supplement its disclosure pursuant to Rule 26(a)(2)(E), because
appellant can show no prejudice and so the violation was
harmless. Upon learning of the violation during re-cross,
appellant received Dr. Restak’s notes from his interview of
Detective McConnell, reviewed them, and then asked no
questions concerning the interview. Neither did appellant seek
either a continuance for further review or to re-call Dr. Restak
to inquire further. On appeal, appellant has not identified any
prejudice that resulted from the government’s failure to disclose
the in-person interview. Because appellant does not suggest
how the trial proceedings would have been different had there
been a timely supplemental disclosure, there is no basis from
which to conclude that the Rule 26(a)(2)(E) violation affected
appellant’s substantial rights. FED. R. CIV. P. 61; see Whitbeck
v. Vital Signs, Inc., 159 F.3d 1369, 1375 (D.C. Cir. 1998).

IV.

Appellant’s other grounds for reversal of the judgment for
the government are unpersuasive.

First, appellant contends that the district court erred in
admitting recordings of contemporaneous telephone calls
 23

reporting the altercation at the carry-out and requesting
assistance — to emergency (911) and non-emergency (311)
numbers — because they were irrelevant. Regardless of
whether Detective McConnell or Taft “were aware of the
contents of the 311 or 911 recordings,” Appellant’s Br. 52, the
recordings provide highly probative contemporaneous
eyewitness accounts reflecting the scene that Detective
McConnell encountered and the struggle with Taft that ensued.
Just as appellant presented live eyewitness testimony at trial to
provide accounts of the incident, the government was properly
allowed to play these recordings in order to provide other
accounts.

Second, to the extent appellant now maintains that the
danger of unfair prejudice from playing the recordings
outweighed their probative value under Federal Rule of
Evidence 403, noting the “yelling and screaming” on the
recordings, Appellant’s Br. 52, this objection is forfeited
because appellant failed to raise it in the district court. See
United States v. Spriggs, 996 F.2d 320, 325 (D.C. Cir. 1993).
Although appellant offers that “the district court cut off
Appellant’s attempt to be heard on the issue,” Appellant’s Reply
Br. 17-18, the record shows that appellant was cut off only after
being afforded ample opportunity to raise a Rule 403 objection.
At first, appellant simply lodged the objection without “stating
the specific ground of objection” as required by Federal Rule of
Evidence 103(a)(1). The district court inquired as to the basis
for appellant’s objection, and appellant responded, “Relevance
and materiality.” Tr. Nov. 17, 2009 a.m., at 49. The district
court overruled the objection and, as appellant had already taken
two bites at the apple, the district court cut off appellant’s
attempt at a third. Having afforded appellant a full opportunity
to state the basis for the objection, and appellant having
referenced neither Rule 403 nor a danger of unfair prejudice, the
 24

district court did not abuse its discretion by refusing to hear
further argument on the matter.

Third, appellant contends that in these rulings and in two
incidents that occurred outside the jury’s earshot, the district
court judge exhibited such bias as to deny appellant a fair trial.
But appellant has not shown that the district court’s conduct
“reveal[s] such a high degree of favoritism or antagonism as to
make fair judgment impossible.” Liteky v. United States, 510
U.S. 540, 555 (1994). The challenged rulings were not an abuse
of discretion and demonstrated no such bias. In one incident
complained of, the district court called the parties’ counsel to the
bench and warned government counsel that a line of questioning
of its expert witness on police policies and procedures could
“open the door” to admission of the FIT Report. Tr. Nov. 17,
2009 p.m., at 154. This guidance appears to have been offered
in order to clarify the district court’s evidentiary ruling on the
FIT Report, and it constituted a sound exercise of discretion, not
impermissible bias. In the other incident, while the district court
and appellant’s counsel were discussing — the transcript
suggests somewhat heatedly — the use of the FIT Report in
cross-examining Dr. Restak, the district court likened counsel to
a church minister due to his perceived inability to modulate his
voice. Counsel took exception to the comment, and on appeal
appellant suggests it was racially tinged. The record on appeal
is bereft of evidence the district court’s difficulties with
appellant’s counsel sprang from any racial attitude or affected its
judgments or its conduct before the jury or in any other way
deprived appellant of a fair trial.

Accordingly, we affirm the judgment of the district court.