Dasho v. City of Federal Way et al, No. 2:2012cv01398 - Document 64 (W.D. Wash. 2015)

Court Description: ORDER granting in part and denying in part 62 Defendants' renewed Motion to Exclude, by Judge James L. Robart.(MD)

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Dasho v. City of Federal Way et al Doc. 64 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JONATHAN DASHO, Plaintiff, 11 v. 12 13 CITY OF FEDERAL WAY, et al., ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ RENEWED MOTION TO EXCLUDE EXPERT WITNESSES Defendants. 14 15 16 CASE NO. C12-1398JLR I. INTRODUCTION Before the court is Defendants City of Federal Way, Officer Kelly Smith, and 17 Officer Steven Wortman’s (“Defendants”) renewed motion to exclude expert witnesses. 18 (2d Mot. (Dkt. # 62).) Defendants seek to exclude the testimony of Plaintiff Jonathan 19 Dasho’s proposed expert witnesses Kay Sweeney and D.P. Van Blaricom. (Id. at 1.) The 20 court has reviewed Defendants’ motion, all submissions filed in support of and 21 opposition thereto, the relevant portions of the record, and the applicable law. Being 22 fully advised, the court grants in part and denies in part Defendants’ motion. ORDER- 1 Dockets.Justia.com 1 Specifically, the court excludes as unreliable the opinions of Mr. Sweeney related to the 2 sequence of gunshots and the movements of Mr. Dasho. The court does not, however, 3 exclude any other aspects of Mr. Sweeney’s expert testimony as described below. The 4 court also excludes as irrelevant the opinions of Mr. Van Blaricom regarding the specific 5 use of force in this case. Finally, the court denies Defendants’ motion as it pertains to 6 Mr. Van Blaricom’s proposed testimony on general police practices and standards. 7 8 II. BACKGROUND This litigation arises out of an encounter between Mr. Dasho and Officers Smith 9 and Wortman that occurred on August 19, 2009. (See Wortman Decl. (Dkt. # 42) ¶ 3, Ex. 10 A (“Wortman Report”) at 1; 1st Resp. (Dkt. # 43) at 2 (citing State v. Dasho, 171 Wash. 11 App. 1030, at *1 (Wash. Ct. App. 2012)).) On that night, neighbors reported a 12 disturbance at Mr. Dasho’s apartment. (1st Resp. at 2 (citing Dasho, 171 Wash. App. at 13 *1).) Officers Smith and Wortman responded to that call and demanded to be let into the 14 apartment. (Id.; Wortman Report at 1-2.) Jared Dasho, Mr. Dasho’s brother, let the 15 officers into the apartment where Mr. Dasho lay naked on the living room floor. (1st 16 Resp. at 2 (citing Dasho, 171 Wash. App. at *1).) As the officers entered the living 17 room, Mr. Dasho jumped up, ran into the kitchen, and grabbed a blunt-tipped knife out of 18 a drawer. (Id.; see Wortman Report at 2.) Ignoring commands from the officers to stop, 19 Mr. Dasho exited the kitchen and entered the living room at a rapid pace with the knife 20 raised over his head. (1st Resp. at 2 (citing Dasho, 171 Wash. App. at *1); Miller Decl. 21 (Dkt. # 40) ¶ 3, Ex. A at 3.) Each officer shot Mr. Dasho multiple times. (See Wortman 22 Report at 2; Smith Decl. (Dkt. # 41) ¶ 3, Ex. A (“Smith Report”) at 2; 1st Resp. at 2 ORDER- 2 1 (citing Dasho, 171 Wash. App. at *1).) A state court jury convicted Mr. Dasho of two 2 counts of third degree assault. Dasho, 171 Wash. App. at *2. 3 On August 20, 2012, Mr. Dasho filed the instant action, in which he alleges that 4 Officers Smith and Wortman used excessive force against him in violation of his 5 constitutional rights. (See Compl. (Dkt. # 1).) To support this allegation, Mr. Dasho 6 proposes to call expert witnesses, including the two witnesses at issue here—Kay 7 Sweeney and D.P. Van Blaricom. (See Disc. of Expert Wit. (Dkt. # 32) at 3-5.) Mr. 8 Dasho offers Mr. Sweeney as an expert in forensic science (id. at 4), and Mr. Van 9 Blaricom as an expert in police practices (id. at 3). 10 Mr. Sweeney intends to testify that after entering the living room Mr. Dasho likely 11 did not continue moving toward the officers, as they claim he did. (See Disc. of Expert 12 Wit. Ex. F (“Sweeney Report”) at 8.) Having examined Mr. Dasho’s apartment, police 13 reports, the physical evidence from the scene, and medical records (see 1st Resp. at 3; 14 Sweeney Report at 2-8), Mr. Sweeney offers an alternative version of events that is quite 15 specific. According to Mr. Sweeney, Mr. Dasho most likely turned away from the 16 officers upon entering the living room and moved north along the living room wall, then 17 turned back toward the kitchen when fired upon, was hit multiple times while moving 18 toward the kitchen, and finally fell down into the space between the kitchen and living 19 room as the officers continued to fire at him. (Sweeney Report at 8-9.) In offering these 20 opinions, Mr. Sweeney purports to be able to identify the sequence of shots fired— 21 particularly, the first and second shots and the rough sequence of the remaining shots—as 22 ORDER- 3 1 well as Mr. Dasho’s movements in the moments leading up to and during the shooting. 2 (See id.) 3 Mr. Van Blaricom proposes to testify regarding police practices. (See Disc. of 4 Expert Wit. at 3, Ex. A (“Van Blaricom Report”); 1st Resp. at 4.) In forming his 5 opinions, Mr. Van Blaricom has examined police reports, Mr. Sweeney’s report, portions 6 of the trial testimony from Mr. Dasho’s assault trial, Federal Way Police Department use 7 of force policies, and National Law Enforcement Center policies on the use of force and 8 the investigation of officer-involved shootings. (Van Blaricom Report at 1-2.) Mr. 9 Dasho explains that Mr. Van Blaricom will educate the jury on general principles and 10 offer an opinion in response to hypothetical questions. (See 1st Resp. at 10-12). 11 Defendants initially moved to exclude the opinions of Mr. Sweeney and Mr. Van 12 Blaricom on September 11, 2014. (1st Mot. (Dkt. # 39).) In that motion, Defendants 13 argued that Mr. Sweeney’s opinions are inadmissible because his conclusions regarding 14 the sequence of shots and Mr. Dasho’s movements are not based on sufficient data and 15 constitute conjecture and speculation. (See id. at 10-11.) They further contended that 16 Mr. Van Blaricom’s opinions are also inadmissible because they are not offered on a 17 more-probable-than-not basis and because Mr. Van Blaricom’s expert report fails to give 18 adequate notice of the opinions he plans to offer in this case. (See id. at 12; 1st Reply 19 (Dkt. # 50) at 5-6.) The court denied Defendants’ first motion, not on the merits, but due 20 to a lack of information in the record regarding Mr. Sweeney’s and Mr. Van Blaricom’s 21 proposed testimony. (See 11/4/14 Order (Dkt. # 58).) 22 ORDER- 4 1 To support a more informed decision, the court ordered Mr. Dasho to supplement 2 the record with filings providing (1) a clear and detailed description of Mr. Sweeney’s 3 methods, why those methods are reliable in precisely reconstructing the scene of a 4 shooting, and how Mr. Sweeney applied those methods to this case; and (2) a clear and 5 detailed description of the hypothetical questions that Mr. Dasho proposes to ask Mr. Van 6 Blaricom, the opinions that Mr. Van Blaricom will offer in response, the principles about 7 which Mr. Van Blaricom will testify, and any further information useful to the court in 8 evaluating Mr. Van Blaricom’s testimony under Federal Rule of Evidence 702. (See id. 9 at 7-9.) The court gave Mr. Dasho over 40 days to file this submission and authorized 10 Defendants to conduct discovery and refile their motion to exclude thereafter. (See id. at 11 9-10.) 12 Mr. Dasho responded to the court’s order on December 15, 2014, with a 10-page 13 memorandum and four exhibits, three of which contain the transcript of Mr. Sweeney’s 14 testimony in Mr. Dasho’s criminal trial. (See Mem. (Dkt. # 61); id. Ex. 1 (“1st Crim. 15 Trans.”), Ex. 2 (“2d Crim. Trans.”), Ex. 3 (“3d Crim. Trans.”).) 1 Mr. Dasho’s 16 memorandum summarizes Mr. Sweeney’s qualifications, briefly describes aspects of Mr. 17 Sweeney’s methodology, and directs the court to the criminal trial transcript to see how 18 Mr. Sweeney reliably applied his methods to the facts of this case. (See Mem. at 2-6.) 19 The memorandum also provides several hypothetical questions that Mr. Dasho wishes to 20 ask Mr. Van Blaricom along with Mr. Van Blaricom’s expected answers and a 21 1 The fourth exhibit is Mr. Van Blaricom’s expert report, which was already in the record. 22 (Compare Mem. Ex. 4 with Van Blaricom Report.) ORDER- 5 1 description of some of the principles about which Mr. Van Blaricom will testify. (See id. 2 at 7-9.) 3 As the court authorized, Defendants have refiled their motion to exclude Mr. 4 Sweeney’s and Mr. Van Blaricom’s opinions. (See 2d Mot.) Defendants argue in their 5 renewed motion that Mr. Dasho’s supplemental filings have not satisfied the court’s 6 previous order. (Id. at 1-2.) It remains unclear, they contend, what methods Mr. 7 Sweeney used to establish a sequence of shots and reconstruct Mr. Dasho’s movements 8 and whether those methods are reliable. (See id. at 5-8.) In addition, Defendants argue 9 that Mr. Van Blaricom’s opinions still have not been adequately disclosed and are not 10 offered on a more-probable-than-not basis. (See id. at 9-11.) Defendants’ renewed 11 motion to exclude is now before the court. 2 12 13 III. DISCUSSION Rule 702 of the Federal Rules of Evidence governs the admission of expert 14 testimony in federal court: 15 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: 16 17 18 2 19 20 21 22 Mr. Dasho did not file an opposition to Defendants’ renewed motion to exclude. (See Dkt.) As a result, Defendants ask the court to grant their motion under Local Civil Rule 7(b)(2) (see 2d Reply (Dkt. # 63) at 2), which permits the court to consider a party’s failure to oppose a non-summary-judgment motion as an admission that the motion has merit, Local Rules W.D. Wash. LCR 7(b)(2). The court denies Defendants’ request. Mr. Dasho’s supplemental filing anticipates Defendants’ renewed motion and urges the court not to exclude Mr. Sweeney’s and Mr. Van Blaricom’s testimony. (See Mem. at 1, 5, 9.) That circumstance is sufficient to persuade the court not to invoke Local Civil Rule 7(b)(2)’s “admission that the motion has merit” provision. ORDER- 6 1 2 (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; 3 (b) the testimony is based on sufficient facts or data; 4 (c) the testimony is the product of reliable principles and methods; and 5 (d) the expert has reliably applied the principles and methods to the facts of the case. 6 Fed. R. Evid. 702. Rule 702 requires that the expert be qualified and that the “‘[e]xpert 7 testimony . . . be both relevant and reliable.’” Estate of Barabin v. AstenJohnson, Inc., 8 740 F.3d 457, 463 (9th Cir. 2014) (quoting United States v. Vallejo, 237 F.3d 1008, 1019 9 (9th Cir. 2001)); Fed. R. Evid. 702. Relevancy “simply requires that ‘[t]he evidence . . . 10 logically advance a material aspect of the party’s case.’” Estate of Barabin, 740 F.3d at 11 463 (quoting Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007)). 12 Reliability requires the court to assess “whether an expert’s testimony has a 13 ‘reliable basis in the knowledge and experience of the relevant discipline.’” Id. (quoting 14 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (citations and alterations 15 omitted)). The Supreme Court has suggested several factors that courts can use in 16 determining reliability: (1) whether a theory or technique can be tested; (2) whether it 17 has been subjected to peer review and publication; (3) the known or potential error rate of 18 the theory or technique; and (4) whether the theory or technique enjoys general 19 acceptance within the relevant scientific community. See Daubert v. Merrell Dow 20 Pharm., Inc., 509 U.S. 579, 592-94 (1993). The reliability inquiry is flexible, however, 21 22 ORDER- 7 1 and trial judges have broad latitude to focus on the considerations relevant to a particular 2 case. Kumho Tire, 526 U.S. at 150. 3 In determining reliability, the court must rule not on the correctness of the expert’s 4 conclusions but on the soundness of the methodology, Estate of Barabin, 740 F.3d at 463 5 (citing Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010)), and the analytical 6 connection between the data, the methodology, and the expert’s conclusions, Gen. Elec. 7 Co. v. Joiner, 522 U.S. 136, 146 (1997). See also Cooper, 510 F.3d at 942 (“Rule 702 8 demands that expert testimony relate to scientific, technical or other specialized 9 knowledge, which does not include unsubstantiated speculation and subjective beliefs.”); 10 Fed. R. Evid. 702 advisory committee’s notes to 2000 amendments (“[T]he testimony 11 must be the product of reliable principles and methods that are reliably applied to the 12 facts of the case.”). Moreover, “the proponent of the expert . . . has the burden of proving 13 admissibility.” Cooper, 510 F.3d at 942 (citing Lust v. Merrell Dow Pharms., Inc., 89 14 F.3d 594, 598 (9th Cir. 1996)); see also Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 15 1311, 1316 (9th Cir. 1995) (“Daubert II”) (“[T]he party presenting the expert must show 16 that the expert’s findings are based on sound science, and this will require some 17 objective, independent validation of the expert’s methodology.”). 18 A. Kay Sweeney 19 The court begins by noting the issues that are not in dispute with respect to Mr. 20 Sweeney’s proposed expert testimony. First, Mr. Sweeney’s qualifications are not in 21 dispute. Defendants have not challenged Mr. Sweeney’s qualifications as a forensic 22 scientist, and the court finds that Mr. Sweeney is qualified to testify as a forensic scientist ORDER- 8 1 based on his many years of on-the-job training and experience with the Seattle, King 2 County, and Washington State crime labs and as a private forensic sciences consultant. 3 (See Disc of Expert Wit. at 4, Ex. H (“Sweeney CV”)); Fed. R. Evid. 702; (see also Mem. 4 at 2-3.) Further, the relevance of Mr. Sweeney’s opinions is not in dispute. Mr. 5 Sweeney’s opinions logically advance a material aspect of Mr. Dasho’s case by offering 6 an alternative version of events that tends to make Defendants’ conduct appear less 7 reasonable. (See Sweeney Report at 8-9.) As such, the court concludes that Mr. 8 Sweeney’s opinions are relevant. Estate of Barabin, 740 F.3d at 463. 9 Finally, not all aspects of Mr. Sweeney’s report are in dispute. Both of 10 Defendants’ motions to exclude are phrased as requests to exclude Mr. Sweeney’s 11 opinions generally (see 1st Mot. at 1; 2d Mot. at 1), yet Defendants’ actual arguments 12 attack only Mr. Sweeney’s opinions regarding (1) the sequence of shots, and (2) Mr. 13 Dasho’s movements after exiting the kitchen (see 1st Mot. at 10-11; 2d Mot. at 5-8). (See 14 also 2d Mot. at 5 (“Mr. Sweeney’s microscopic analysis of bullet casings, for example, is 15 not at issue; his method of layering that analysis on top of a multitude of other analyses to 16 create a reliable shot sequence is at issue.”).) Mr. Sweeney’s report, however, contains 17 additional, narrower opinions. For example, Mr. Sweeney opines regarding which of Mr. 18 Dasho’s wounds are entry wounds and which are exit wounds (see Sweeney Report at 319 4); which bullets came from which officer’s gun (see id. at 4-5); the location of Mr. 20 Dasho’s wounds (see id. at 3-4); the probable path of the bullets through Mr. Dasho (see 21 id. at 3-4, 9); and where Mr. Dasho ultimately came to rest on the floor (see id. at 2-3). 22 (See also, e.g., 1st Crim. Trans. at 134:3-20, 140:24-141:13.) Mr. Sweeney’s analysis of ORDER- 9 1 and opinions on those discrete items of physical evidence are not at issue. (See 2d Mot. 2 at 5.) At issue here is only the reliability of Mr. Sweeney’s global opinions on (1) the 3 sequence of shots and (2) Mr. Dasho’s movements after exiting the kitchen (hereinafter 4 “Mr. Sweeney’s Opinions” or “the Opinions”). 5 The court finds that Mr. Sweeney’s Opinions are unreliable and therefore 6 inadmissible. In its prior order, the court observed that Mr. Sweeney’s report consists 7 mainly of a list of the physical evidence followed by Mr. Sweeney’s conclusions about 8 shot sequence and Mr. Dasho’s movements. (See 11/4/14 Order at 6.) The report 9 contains little reasoning connecting the Opinions to the physical evidence and offers no 10 information to support the reliability of the Opinions. (See id.; Sweeney Report at 8-9.) 11 Based on that inadequate record, the court could not determine whether Mr. Sweeney had 12 employed reliable methods and applied those methods reliably to the facts. (See 11/4/14 13 Order at 6.) The court therefore ordered Mr. Dasho to submit a supplemental filing 14 detailing Mr. Sweeney’s methods, their reliability, and how Mr. Sweeney applied those 15 methods to this case. (See 11/4/14 Order at 7, 9.) 16 Mr. Dasho’s supplemental filing falls short of demonstrating that Mr. Sweeney’s 17 methods are reliable or, even if they are reliable, that Mr. Sweeney reliably applied his 18 methods to this case. See Joiner, 522 U.S. at 146; Estate of Barabin, 740 F.3d at 463; 19 Cooper, 510 F.3d at 942; Fed. R. Evid. 702 advisory committee’s notes to 2000 20 amendments (“[T]he testimony must be the product of reliable principles and methods 21 that are reliably applied to the facts of the case.”). Although the supplemental filing does 22 not clearly detail the methodology behind Mr. Sweeney’s opinions, the court reads the ORDER- 10 1 memorandum and trial testimony together to lay out the following methodology: First, 2 Mr. Sweeney analyzes the available pieces of physical evidence. He then gathers that 3 information and superimposes on it a sequence of events that seems to him to be the best 4 overall match. (See Mem. at 3-6; 2d Crim. Trans. at 52:9-18, 55:8-9; see also 1st Crim. 5 Trans. at 137:23-138:7; 3d Crim. Trans. at 141:8-14.) In this case he applied that 6 methodology by examining the bullets fired, the bullet holes in the wall and floor of Mr. 7 Dasho’s apartment, the police reports, and Mr. Dasho’s medical records and from there 8 reached his conclusions regarding the sequence of gunfire and Mr. Dasho’s movements. 9 (See Mem. at 3-6; 2d Crim. Trans. at 52:9-62:20; 1st Crim. Trans. at 137:23-138:7; 3d 10 Crim. Trans. at 137:15-141:14.) 11 Nothing in Mr. Dasho’s filings, however, shows that Mr. Sweeney’s methods are 12 reliable in establishing a shot sequence and precisely reconstructing a series of 13 movements. In fact, the closest Mr. Dasho gets to such a showing are his conclusory 14 statements that Mr. Sweeney used methods that are “universally accepted.” (See Mem. at 15 3-6 (“Defendants cannot challenge the methods employed by Mr. Sweeney because they 16 are the exact same accepted and utilized methods of forensic crime scene analysis used 17 by all law enforcement agencies in the State and the country . . . . Mr. Sweeney was able 18 to use . . . universally accepted methods . . . .”).) Those statements are insufficient to 19 establish the reliability of the methods underlying Mr. Sweeney’s Opinions. See Kumho 20 Tire, 526 U.S. at 157 (citing Joiner, 522 U.S. at 146) (rejecting expert’s unsupported 21 assertion “that his method was accurate”); Daubert, 509 U.S. at 592-94; Daubert II, 43 22 F.3d at 1316. ORDER- 11 1 To begin, Mr. Dasho provides no evidence that Mr. Sweeney’s method of 2 analyzing pieces of evidence and superimposing a narrative of events is in fact standard 3 in the field of forensic science and accepted as producing reliable results regarding the 4 type of opinions at issue here. See Daubert, 509 U.S. 592-94; Kumho Tire, 526 U.S. at 5 151; see also Fed. R. Evid. 702 advisory committee’s notes to 2000 amendments (listing 6 among factors potentially relevant to the reliability inquiry “[w]hether the field of 7 expertise claimed by the expert is known to reach reliable results for the type of opinion 8 the expert would give”). Mr. Dasho cites to no treatises on this subject, no scholarly 9 articles, no professional publications, no opinions of other experts in the field, and no 10 cases in which federal courts have accepted a similar methodology as a basis for these 11 types of opinions. (See 1st Resp.; Mem.; see also Sweeney Report.) Furthermore, the 12 court’s legal research has not revealed a single instance of a federal court allowing a 13 forensic expert to offer opinions of this type based on a like methodology. 14 To the contrary, several cases involving forensics experts suggest that it is at least 15 doubtful whether forensic scientists can reliably establish shot sequence based on the type 16 of evidence available here. 3 For example, in Jordan v. City of Chicago, a forensic expert 17 18 19 20 21 22 3 At least one court has allowed shot sequence testimony from a forensic expert; however, in that case, the expert had an audio recording of the incident and could compare the sounds of the shots to determine the order in which the guns fired. See Cole v. Hunter, No. 3:13cv-02719-O, 2014 WL 7272608, at *5-6 (N.D. Tex. Dec. 22, 2014). Here, there is no indication that an audio recording of the incident exists, or that any similar piece of evidence was available to Mr. Sweeney. (See Sweeney Report at 2-8.) In addition, Mr. Sweeney’s Opinions concern not the order in which Officers Smith and Wortman fired their weapons but rather the order in which particular bullets corresponding to particular wounds or bullet holes were fired. (See Sweeney Report at 8-9; 2d Crim. Trans. at 52:9-62:20; 1st Crim. Trans. at 137:23-138:7; 3d Crim. Trans. at 137:15-141:14.) ORDER- 12 1 with extensive credentials admitted that based on ballistic and wound evidence he “could 2 not determine the order in which the bullets hit Van Allen.” Jordan v. City of Chicago, 3 No. 08 C 6902, 2012 WL 254243, at *3-4, *10 (N.D. Ill. Jan. 27, 2012); see also Lee v. 4 City of Richmond, No. 3:12cv471, 2014 WL 5092715, at *13-14 (E.D. Va. Sept. 30, 5 2014) (excluding as unreliable a forensic pathologist’s opinions on “sequence of shots 6 and the position of Fleming’s body at various times before he fell to the floor” due to lack 7 of sufficient data and failure to satisfy any of the Daubert criteria). Moreover, the 8 Washington Court of Appeals has previously rejected shot sequence testimony from Mr. 9 Sweeney that was based on blood-spatter and trajectory analysis, finding such testimony 10 to be “completely speculative” and “mere conjecture.” State v. Eggleston, 108 Wash. 11 App. 1011, at *15 (2001). 4 12 Mr. Dasho also gives no indication that Mr. Sweeney’s methodology can be or has 13 been tested, or that Mr. Sweeney’s methodology has undergone peer review. Daubert, 14 509 U.S. at 592-94. Nor does he provide any known error rate for Mr. Sweeney’s 15 methodology. Id. In sum, the record contains no verification that Mr. Sweeney’s 16 methodology is reliable in producing shot sequences and precisely reconstructing a series 17 of movements during a shooting. See id.; Daubert II, 43 F.3d at 1316. Accordingly, the 18 court finds that Mr. Dasho has failed to meet his burden to show that reliable methods 19 underlie Mr. Sweeney’s Opinions. See Cooper, 510 F.3d at 942. 20 21 4 The court may consider unpublished state court decisions, even though such opinions have no precedential value. See Emp’rs Ins. of Wasau v. Granite State Ins. Co., 330 F.3d 1214, 22 1220 (9th Cir. 2003). ORDER- 13 1 Furthermore, even if Mr. Dasho had shown that Mr. Sweeney’s methods are 2 generally reliable, the court would find that Mr. Dasho has nevertheless failed to 3 demonstrate that Mr. Sweeney reliably applied his methods to the facts of this case. See 4 Joiner, 522 U.S. at 146; Fed. R. Evid. 702(d). Mr. Sweeney performs a substantial 5 analytical leap in creating the Opinions. He uses pieces of static physical evidence such 6 as bullet holes and wounds to arrive at a detailed reconstruction of a dynamic situation 7 involving two officers firing in quick succession at a rapidly moving person. (See 8 Sweeney Report at 2-9; Mem. at 3-6; 2d Crim. Trans. at 52:9-62:20; 1st Crim. Trans. at 9 137:23-138:7; 3d Crim. Trans. at 137:15-141:14.) Moreover, Mr. Sweeney makes this 10 leap on the basis of limited information, as he was able to calculate trajectories for only 11 five of the 13 shots fired, and he acknowledges that an error at any stage would render his 12 entire reconstruction inaccurate. (See Sweeney Report at 8-9; Miller Decl. (Dkt. # 40) 13 ¶ 8, Ex. F (“Sweeney Dep.”) at 56:15-18, 79:9-13.) The court could not find that such an 14 analytical feat was performed reliably without an in-depth explanation of Mr. Sweeney’s 15 reasoning, including his consideration and rejection of alternative scenarios. See Joiner, 16 522 U.S. at 146; Poosh v. Phillip Morris USA, Inc., 287 F.R.D. 543, 546 (N.D. Cal. 17 2012) (noting that reliability may be in doubt where an expert “fails to address and 18 exclude alternative explanations for the data on which he bases his findings” (internal 19 quotations and alterations omitted)); Fed. R. Evid. 702 advisory committee’s notes to 20 2000 amendments (listing as a potential factor for determining reliability “[w]hether the 21 expert has adequately accounted for obvious alternative explanations”) (citing Claar v. 22 Burlington N. R.R. Co., 29 F.3d 499, 502 (9th Cir. 1994)). ORDER- 14 1 Mr. Dasho, however, has not provided the court with an adequate explanation. 2 Mr. Sweeney’s report contains no discussion of alternative scenarios and almost no 3 description of Mr. Sweeney’s reasoning. (See Sweeney Report at 8-9.) The transcript of 4 Mr. Sweeney’s testimony during Mr. Dasho’s criminal trial is somewhat more helpful, 5 but even it offers only an outline of Mr. Sweeney’s reasoning and provides almost no 6 meaningful consideration of alternatives. (See 2d Crim. Trans. at 52:9-62:20; 1st Crim. 7 Trans. at 137:23-138:7; 3d Crim. Trans. at 137:15-141:14.) Further, Mr. Dasho has not 8 pointed to any materials showing that Mr. Sweeney addressed such topics as whether Mr. 9 Dasho’s body could have been contorted while running and being fired on, how being 10 shot might have contributed to any such contortions, whether some bullets may have 11 changed paths upon striking Mr. Dasho, and how Mr. Sweeney ensured the accuracy of 12 his reconstruction while calculating trajectories for only five of 13 bullets. Mr. 13 Sweeney’s perfunctory explanations fail to convince the court that Mr. Sweeney reliably 14 applied his methods to this case. See Joiner, 522 U.S. at 146. 15 In sum, the court is unable to determine whether Mr. Sweeney’s Opinions are 16 reliable, or alternatively, whether he has engaged in unreliable conjecture and 17 speculation. See Estate of Barabin, 740 F.3d at 463. Mr. Dasho has failed to provide any 18 evidence that Mr. Sweeney’s methods are reliable, other than his and Mr. Sweeney’s own 19 statements, which the court is not bound to accept. Mr. Dasho has also failed to show 20 that Mr. Sweeney reliably applied his methods to the facts of this case. For these reasons 21 and because Mr. Dasho bears the burden to show that Mr. Sweeney’s testimony is 22 ORDER- 15 1 admissible, the court grants Defendants’ motion as to Mr. Sweeney’s Opinions and 2 excludes the Opinions as unreliable. See Cooper, 510 F.3d at 942. 3 B. D.P. Van Blaricom 4 As with Mr. Sweeney, the court begins its analysis with respect to Mr. Van 5 Blaricom by observing what issues are not in dispute here. First, Mr. Van Blaricom’s 6 qualifications are not in dispute. Defendants do not challenge Mr. Van Blaricom’s 7 qualifications to testify as an expert on police practices, including police practices 8 regarding the use of force, and the court finds that he is qualified in that respect based on 5 9 his long experience as a police officer, police chief, and police practices consultant. (See 10 Disc. of Expert Wit. at 3 Ex. C (“Van Blaricom CV”).) Second, the reliability of Mr. 11 Van Blaricom’s opinions is not in dispute here. Mr. Van Blaricom states in his report 12 that his method is to analyze a given factual scenario against his training, his experience, 13 and standards of police conduct to determine whether the standards have been observed. 14 (See Van Blaricom Report ¶¶ 6-7.) The court finds that Mr. Van Blaricom opinions are 15 reliable. See Estate of Barabin, 740 F.3d at 463; Fed. R. Evid. 702 advisory committee’s 16 notes to 2000 amendments (“In certain fields, experience is the predominant, if not sole, 17 basis for a great deal of reliable expert testimony.”). 18 19 5 The court also finds, however, that Mr. Van Blaricom is not qualified to testify as an expert in forensic science. Mr. Dasho has made no effort to qualify Mr. Van Blaricom as such, 20 and has in fact disclaimed any intention to elicit testimony from Mr. Van Blaricom on that 21 subject. (See 1st Resp. at 10 (“Chief Van Blaricom is not being offered to present scientific testimony . . . . Plaintiff does not intend to solicit Chief Van Blaricom’s opinion regarding the scientific validity of plaintiff’s forensic expert Kay Sweeney.”) As such, the court will not 22 permit Mr. Van Blaricom to testify about forensic science or analysis. ORDER- 16 1 Disputed here are whether Mr. Van Blaricom’s opinions are adequately disclosed 2 in his expert report and whether those opinions are relevant. (See 2d Mot. at 9-11.) Mr. 3 Dasho’s filings concerning Mr. Van Blaricom are, like Mr. Van Blaricom’s report, 4 somewhat difficult to follow and at points appear contradictory. Nevertheless, the court 5 reads Mr. Dasho’s filings as explaining that Mr. Van Blaricom will offer two types of 6 opinions: (1) he will testify about general police practices and standards concerning the 7 use of force (“general opinions”), and (2) he will give opinions about whether the use of 8 force in this case complied with those standards in response to hypothetical questions 9 based on Mr. Sweeney’s testimony (“case-specific opinions”). (See Mem. at 6-9; Van 10 Blaricom Report at 4-7.) Defendants argue that Mr. Van Blaricom’s case-specific 11 opinions are inadmissible because they are not phrased in more-probable-than-not terms 12 and are therefore irrelevant. (See 2d Mot at 9-10.) Defendants also urge the court to 13 exclude both types of opinions on the ground that they are not adequately disclosed in 14 Mr. Van Blaricom’s report. (See id. at 9-11.) 15 As discussed above, expert testimony must be not only reliable but also relevant. 16 See Estate of Barabin, 740 F.3d at 463. Relevancy requires that the testimony logically 17 advance a material aspect of the party’s case. Id.; see also Fed. R. Evid. 401, 402. 18 Moreover, the “court’s determination of relevance must consider the applicable 19 substantive standard [of proof].” Schudel v. Gen. Elec. Co., 120 F.3d 991, 996 (9th Cir. 20 1997) (citing Daubert II, 43 F.3d at 1320), abrogated on other grounds by Weisgram v. 21 Marley Co., 528 U.S. 440 (2000). In an excessive force case under 42 U.S.C. § 1983, the 22 standard of proof is a preponderance of the evidence, which requires the plaintiff to prove ORDER- 17 1 his or her claims on a more-probable-than-not basis. See Tortu v. Las Vegas Metro. 2 Police Dep’t, 556 F.3d 1075, 1084 (9th Cir. 2009); U.S. v. Wong, 2 F.3d 927, 935-36 (9th 3 Cir. 1993). Thus, if an expert proposes to testify regarding the appropriateness of the 4 force used, that testimony is relevant only if it suggests that the force used was more 5 likely than not excessive. See Schudel, 120 F.3d at 996 (citing Daubert II, 43 F.3d at 6 1320-22). Testimony that suggests only that the force used “could possibly have” been 7 excessive is irrelevant and inadmissible. Id. (emphasis in original) (internal quotation 8 marks omitted). 9 Defendants contend that Mr. Van Blaricom’s case-specific opinion is irrelevant 10 (see 2d Mot. at 9-10), and the court agrees. The sole case-specific opinion in Mr. Van 11 Blaricom’s report reads as follows: “[I]t is my considered professional opinion that this 12 OIS [officer-involved shooting] may have been an unreasonable use of excessive force.” 13 (Van Blaricom Report ¶ 15 (emphasis added).) This opinion fails to logically advance a 14 material aspect of Mr. Dasho’s case, see Estate of Barabin, 740 F.3d at 463, because it 15 does not suggest that Officers Smith and Wortman’s use of force was more likely than 16 not excessive, see Schudel, 120 F.3d at 996 (citing Daubert II, 43 F.3d at 1320-22). 17 Rather it suggests only that their use of force could possibly have been excessive. Mr. 18 Van Blaricom’s case-specific opinion is therefore irrelevant and inadmissible, and the 19 court grants Defendants’ motion to exclude as to that opinion. See id. 20 In his supplemental memorandum, Mr. Dasho attempts to preserve Mr. Van 21 Blaricom’s case-specific testimony by arguing that Mr. Van Blaricom has two case22 specific opinions. (See Mem. at 6-7.) According to Mr. Dasho, the first opinion ORDER- 18 1 corresponds to the above-quoted equivocal language and is inadmissible, but that opinion 2 concerns only the initial shots that Officers Smith and Wortman fired. (See id. at 6 3 (quoting Van Blaricom Report ¶ 15) (“Chief Van Blaricom does not have a legally 4 admissible opinion as to whether the initial gunshots fired by the Officers Smith and 5 Wortman represent excessive force. ‘[T]his OIS may have been an unreasonable use of 6 excessive force.’” (emphasis and alterations in original)).) The second opinion, Mr. 7 Dasho argues, concerns the later shots and is unequivocal and admissible. (See id. at 6-7 8 (quoting Van Blaricom Report ¶ 15b) (“But Chief Van Blaricom does have a legally 9 admissible opinion regarding whether the additional shots fired after Mr. Dasho ‘reversed 10 his path’ and ‘presented his right side to shooters’ and began his ‘ “downward fall” [sic] 11 to the floor’ constitute excessive force.” (emphasis in original)).) 12 The court finds Mr. Dasho’s reading of Mr. Van Blaricom’s report unpersuasive. 13 First, nothing in Mr. Van Blaricom’s report indicates that his “may have been” opinion is 14 limited to the initial shots. Indeed, the opinion itself refers to “this OIS,” not a specific 15 part of the shooting. (Van Blaricom Report ¶ 15.) Second, Mr. Van Blaricom’s report 16 does not contain the supposed second case-specific opinion. Mr. Dasho cites as the 17 location of that opinion passages in which Mr. Van Blaricom lists Mr. Sweeney’s 18 conclusions with which Mr. Van Blaricom agrees as well as a principle of police practice 19 related to the use of force. (See Mem. at 6-7 (citing Van Blaricom Report ¶¶ 15b, 15e).) 20 Mr. Van Blaricom frames these passages, however, not as opinions about the use of force 21 in this case but as information that he “was especially mindful of” in formulating his 22 ORDER- 19 1 opinion that “this OIS may have been an unreasonable use of excessive force.” (Van 2 Blaricom Report ¶ 15.) 3 As such, Mr. Dasho cannot separate out some language from Mr. Van Blaricom’s 4 report to create an admissible second case-specific opinion. Mr. Van Blaricom’s report 5 contains one case-specific opinion, and that opinion is irrelevant and inadmissible. This 6 conclusion also dictates that Mr. Dasho may not use hypothetical questions to elicit Mr. 7 Van Blaricom’s opinion about the specific use of force in this case. (See Mem. at 7-8.) 8 As Defendants point out, Mr. Dasho’s proposed hypothetical questions all derive from 9 the same passages in Mr. Van Blaricom’s report where Mr. Dasho purports to locate an 10 admissible second case-specific opinion. (See 2d Mot. at 9-10; compare Mem. at 7-8 11 with Van Blaricom Report ¶¶ 15b, 15c.) Thus, even to the extent Mr. Van Blaricom’s 12 report discloses opinions that correspond to Mr. Dasho’s proposed questions, 6 such 13 opinions are also irrelevant and inadmissible. 7 Accordingly, Mr. Van Blaricom may not 14 offer an opinion in any form regarding the specific use of force in this case. 15 16 17 18 19 20 6 Mr. Dasho’s supplemental memorandum prefaces the proposed hypothetical questions with the phrase “Hypothetical questions could include,” suggesting that Mr. Dasho may intend to ask other or additional questions. (Mem. at 7 (emphasis added).) The court, however, ordered Mr. Dasho to disclose “the hypothetical question or questions that [he] proposes to ask.” (11/4/14 Order at 9.) A sampling of possible questions is not responsive to the court’s order. For that reason alone the court would bar Mr. Dasho from asking any further questions. In addition, any further questions would not have a basis in Mr. Van Blaricom’s report (see Van Blaricom Report ¶ 15), and so the court would exclude them as undisclosed opinions in violation of Federal Rule of Civil Procedure 26(a)(2)(B)(i). See Fed. R. Civ. P. 37(c)(1). 7 For example, Mr. Dasho proposes to ask Mr. Van Blaricom the following question: “[I]f the testimony of plaintiff’s forensic expert is that none of Mr. Dasho’s gunshots wounds were front to back . . . then, [sic] do you have an opinion on a more probable than not basis [sic] 22 as to whether any of the shots fired were excessive.” (Mem. at 7.) Mr. Dasho states that Mr. 21 ORDER- 20 1 Defendants also attack Mr. Van Blaricom’s opinions regarding general police 2 practices and standards for the use of force on the ground that such opinions were not 3 adequately disclosed. (See 2d Mot. at 10; see also 1st Reply at 6.) Federal Rule of Civil 4 Procedure 26(a)(2) governs the disclosure of expert testimony. See Fed. R. Civ. P. 5 26(a)(2). For any expert hired for purposes of litigation, that Rule requires the proponent 6 to provide a written report containing, among other things, “a complete statement of all 7 opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P. 8 26(a)(2)(B)(i). If the proponent fails to provide the information required by Rule 9 26(a)(2), the proponent may not use the undisclosed information on a motion, at a 10 hearing, or at trial, unless the proponent shows that its failure was substantially justified 11 or harmless. See Fed. R. Civ. P. 37(c)(1); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 12 259 F.3d 1101, 1106-07 (9th Cir. 2001). 13 The court rejects Defendants’ challenge to Mr. Van Blaricom’s general opinions 14 regarding police practice, because the court finds that Mr. Van Blaricom’s report 15 adequately discloses the practices and standards about which he plans to testify. 16 Admittedly, Mr. Van Blaricom’s report couches these standards and practices in terms of 17 background information rather than opinions. (See Van Blaricom Report ¶ 13; see also 18 19 Van Blaricom’s “[e]xpected answer” is “Yes, the additional shots were excessive.” (Id. at 8.) 20 Yet the proposed question is derived from paragraph 15c of Mr. Van Blaricom’s report, which is part of the information of which Mr. Van Blaricom was especially mindful in forming his 21 opinion that this OIS may have been an excessive use of force. (See Van Blaricom Report ¶ 15.) Thus, Mr. Van Blaricom’s report indicates that his answer would be an irrelevant “maybe,” not an admissible “yes.” 22 ORDER- 21 1 id. ¶ 15e.) Although that characterization has led to some confusion (see 11/4/14 Order 2 at 8), Mr. Dasho’s supplemental memorandum has identified the background principles 3 section of Mr. Van Blaricom’s report as containing the standards about which Mr. Van 4 Blaricom will testify (see Mem. at 8-9). 8 The court therefore concludes that Mr. Van 5 Blaricom’s report is sufficient under Federal Rule of Civil Procedure 26(a)(2)(B) with 6 respect to his general police practices opinions. The court will permit Mr. Van Blaricom 7 to testify about the standards disclosed in his report, insofar as he is able to do so without 8 offering legal conclusions or any testimony that attempts to instruct the jury on the law. 9 // 10 // 11 // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19 20 8 In addition, the court notes that while Mr. Van Blaricom presents this section of his report as background information, he also states that he is providing this information “for the fact 21 finder’s enhanced understanding of actual police practice.” (Van Blaricom Report ¶ 13.) This statement indicates that the background principles are proposed testimony to be offered in front 22 of the jury. ORDER- 22 1 2 IV. CONCLUSION For the foregoing reasons, the court GRANTS in part and DENIES in part 3 Defendants’ renewed motion to exclude (Dkt. # 62). The court GRANTS the motion as 4 to and EXCLUDES the opinions of Mr. Sweeney related to the sequence of gunshots and 5 the movements of Mr. Dasho after exiting the kitchen. The court does not exclude any 6 other aspects of Mr. Sweeney’s opinions as described above. In addition, the court 7 GRANTS the motion as to and EXCLUDES the opinions of Mr. Van Blaricom regarding 8 the specific use of force in this case. The court DENIES the motion, however, as to Mr. 9 Van Blaricom’s opinions on general police practices and standards as described above. 10 Dated this 27th day of April, 2015. 11 13 A 14 JAMES L. ROBART United States District Judge 12 15 16 17 18 19 20 21 22 ORDER- 23

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