Unpublished Disposition, 922 F.2d 845 (9th Cir. 1991)

MEMORANDUM^** 

Appellant brought this diversity action against the City of Los Angeles to recover damages for the alleged negligence of police officer Giberson. In a confrontation with Giberson, appellant was shot in the spine and rendered paraplegic. A jury returned a defense verdict. On appeal, appellant contends that the district court erred in excluding expert testimony.

The trial court has broad discretion in admitting and excluding expert testimony, and we will sustain the court's action unless it is "manifestly erroneous." Taylor v. Burlington Northern R.R. Co., 787 F.2d 1309, 1315 (9th Cir. 1986).

The key issue in the case was the credibility of Giberson's testimony that he shot appellant when appellant drew a gun on him. Appellant's gun turned out to be a starter pistol which could shoot only blanks. Giberson testified that appellant seemed to be "high," was acting erratically, and had removed the gun from his waistband.

Appellant testified that he had been sniffing paint. He testified that he had his hands on his head and did not reach for the toy gun, but had turned his head or body just before he was shot in response to a noise or a call from his mother. His mother corroborated appellant's testimony.

Appellant sought to introduce testimony by James J. Fyfe, a professor and former police officer who had researched police shootings in various large cities. Fyfe sought to testify that he had found no police shooting involving a toy gun in which the gun had been drawn, as here, after the officer had arrived and ordered the victim to freeze. In other words, people with toy guns do not usually draw them on police officers who have real guns. This testimony was intended to call into question Officer Giberson's credibility.

The trial judge excluded the testimony because 1) the sample size was too small, involving only three shootings in which the toy guns had not been used to commit a crime, 2) the circumstances of the other shootings were not sufficiently similar since they did not involve a victim who was high, and 3) Mr. Fyfe was not qualified as a mental health professional to judge appellant's state of mind. Excerpts of Record, at 95-96. Mr. Fyfe was allowed to testify as to other matters. Id. Where foundational facts demonstrating relevance are not sufficiently established, a trial court may properly exclude expert testimony. LuMetta v. United States Robotics, 824 F.2d 768, 771 (9th Cir. 1987). The trial judge did not abuse his discretion.

AFFIRMED.