                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2009

Estate of Harry Smit v. City of Wilmington
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2615




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"Estate of Harry Smit v. City of Wilmington" (2009). 2009 Decisions. Paper 1658.
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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-2615


         ESTATE OF HARRY SMITH III; HARRY SMITH, Jr., Individually
              and as Administrator of the Estate of Harry Smith, III;
               ROSLYN WOODARD SMITH, Individually and as
                 Administrator of the Estate of Harry Smith, III,
                                                 Appellants

                                           v.

                   CITY OF WILMINGTON; JOHN CIRITELLA;
                    THOMAS DEMPSEY; MATTHEW KURTEN


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF DELAWARE
                           (D.C. Civil No. 04-cv-01254)
                   District Judge: Honorable Gregory M. Sleet


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 5, 2009


  Before: BARRY, GREENBERG, Circuit Judges, and ACKERMAN,* District Judge

                           (Opinion Filed: March 27, 2009)


                                      OPINION



   *
    Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.
BARRY, Circuit Judge

         Plaintiffs, parents of Harry Smith III (“Smith”), individually and on behalf of

Smith’s estate, appeal following a jury verdict in favor of the City of Wilmington and

three Wilmington police officers on plaintiffs’ 42 U.S.C. § 1983 claim of excessive force

in violation of the Fourth Amendment and Delaware state law claim for wrongful death.

Plaintiffs also appeal the order of the District Court dismissing their Fourteenth

Amendment due process claim under Federal Rule of Civil Procedure 12(b)(6). Because

the District Court did not err when it admitted certain evidence or when it dismissed

plaintiffs’ Fourteenth Amendment claim, we will affirm the final judgment of the District

Court.

                                               I.

         On September 13, 2003, Smith, age 25, sought treatment for mental health

problems at a Wilmington hospital emergency room. Smith found a scalpel in the

emergency room, stabbed himself in the chest, and ran outside. Wielding the scalpel,

Smith approached a parked Mercedes-Benz and tried to gain entry, threatening the driver

seated inside the car. Two police officers, Officer Johnny Whitehead and his partner,

saw this unfolding and got out of their patrol car to confront Smith, leaving the engine

running and emergency lights flashing. Smith jumped into the patrol car.

         Smith and Officer Whitehead struggled inside the car, and Officer Whitehead shot

Smith once in the leg. Smith nevertheless gained control of the patrol car and drove off.


                                             -2-
About two dozen officers participated in the pursuit of Smith after notification by radio

that shots had been fired and a police car had been stolen (the radio did not notify the

officers of the attempted carjacking).

       Officers blocked an intersection with their cars, at which point Smith drove

toward the officers. Officers John Ciritella, Matthew Kurten and Thomas Dempsey

responded by firing their weapons at the car as Smith continued to drive. A total of 31

bullets were fired; it was later discovered that Smith was killed by a bullet to the head

fired from Officer Ciritella’s weapon.

       Smith’s parents brought suit on behalf of themselves and Smith’s estate with only

§ 1983 excessive force and state-law wrongful death claims going to trial. On April 17,

2007, after a seven-day trial, a jury found in favor of defendants on both claims.

                                             II.

       Plaintiffs argue on appeal that the District Court erred when it allowed evidence

of the attempted carjacking that preceded the police pursuit and when it allowed

testimony from Dr. Jon Nordby, a forensic expert, as to his expert opinion about Smith’s

body position when the bullet entered his head. Plaintiffs also argue that the Court erred

when it dismissed their Fourteenth Amendment claim.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District

Court’s evidentiary rulings for abuse of discretion and its order of dismissal under Rule

12(b)(6) de novo.


                                            -3-
A.     Attempted Carjacking

       Plaintiffs argue that the District Court erred when it admitted evidence of the

attempted carjacking because that evidence was unduly prejudicial and irrelevant. We

disagree.

       Prior to trial, plaintiffs moved to exclude any evidence that Smith was involved in

an attempted carjacking prior to his interaction with Officer Whitehead. The Court ruled

that evidence of the confrontation surrounding the Mercedes was probative, but elicited

the agreement of the defense that it would not seek to characterize the confrontation as a

carjacking, thus limiting whatever prejudice that evidence may have caused. Despite

this, counsel for plaintiffs stated, in her opening statement:

       Harry Smith, III then ran up to a gentleman who was in a Mercedes, a gray
       Mercedes, and was bamming on the car door and pulling on the car door, as
       though he was trying to enter that car. He had moments before been
       diagnosed as having hallucinations, mental health problems, and they had
       already at the hospital proceeded to check him in. The gentleman in the
       gray Mercedes thought he was being carjacked. He was scared and he
       should have been. (Supp. App. at 283.)

       The District Court correctly concluded that evidence of the attempted carjacking

was relevant to provide context regarding the confrontation between Smith and Officer

Whitehead and probative of how Smith came to be behind the wheel of the patrol car.

After weighing the probative value of the evidence against the potential for unfair




                                            -4-
prejudice, the Court declined to exclude the evidence.1 The Court did not abuse its

discretion in so doing.

B.        Admissibility of Expert Testimony

          We review a District Court’s decision to admit expert testimony for abuse of

discretion. Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008).

          Plaintiffs argue that the District Court should not have permitted Dr. Nordby to

testify as to Smith’s body position when the bullet entered his head because Dr. Nordby

could not have determined the bullet’s trajectory without the window glass, which the

parties agree was shattered and therefore unavailable for analysis. Plaintiffs first raised

this argument in a motion in limine; the Court denied the motion, recognizing that Dr.

Nordby’s opinion regarding the bullet’s trajectory did not rely on the glass, but on the

blood stain pattern evidence inside the vehicle and the report of the medical examiner.

During argument on the motion, the Court suggested that plaintiffs’ concerns about the

factual basis for Dr. Nordby’s testimony could be resolved via cross examination, which

had already taken place (Dr. Nordby’s testimony was videotaped). In response to the

Court’s question, the following significant exchange took place:


     1
         In any event, and as d efendants point out, plaintiffs waived their right to challenge
this ruling when they called Officer Whitehead in their case-in-chief and questioned him
about the attempted carjacking. See Ohler v. United States, 529 U.S. 753, 755 (2000)
(holding that a criminal defendant waived his right to appeal an unfavorable ruling on his
motion in limine when he testified to the evidence on direct examination for strategic
purposes); see also Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894,
904 (8th Cir. 2006) (extending this principle to evidence in a civil trial).
                                                -5-
         Counsel:      But as we have been going through the motion, what I
                       believe is that the appropriate way to deal with this expert is
                       with the cross that I have done.
         The Court:    So are you withdrawing the motion?
         Counsel:      I am leaving the motion there.
         The Court:    I am going to deny the motion. (App. at 235.)

         Because plaintiffs conceded that cross examination was an appropriate way to deal

with Dr. Nordby’s testimony, effectively failing to object to admission of the evidence,

we review for plain error, and see none here. See United States v. Mornan, 413 F.3d

372, 379 (3d Cir. 2005). But whether we review for plain error or for abuse of

discretion, we find no error in the Court’s determination that Dr. Nordby had a sufficient

factual basis for his opinion as to Smith’s body position.

C.       Fourteenth Amendment Claim

         Plaintiffs argue that the District Court erred when it dismissed their Fourteenth

Amendment due process claim because it erroneously concluded that the claim was for

loss of companionship, when the claim was actually based on a property interest created

by Delaware’s wrongful death statute.2 Even if plaintiffs could establish a

constitutionally protected property interest created by the Delaware statute, they

submitted no evidence that they were deprived of this interest by a person acting under



     2
     To the extent that plaintiffs’ claim is properly characterized as a claim for loss of
companionship, the District Court correctly concluded that the parents’ interest in the
companionship of their independent adult child is not a constitutionally protected liberty
interest within the meaning of the Due Process Clause. See McCurdy v. Dodd, 352 F.3d
820, 830 (3d Cir. 2003).

                                             -6-
color of state law, as they were required to do under 42 U.S.C. § 1983. Indeed, plaintiffs

fully litigated their wrongful death claim at trial and fail to show how the pretrial

dismissal of the Fourteenth Amendment claim impacted the result of the trial in any way.

                                      III. Conclusion

       We will affirm the judgment of the District Court.




                                            -7-
