On December 17, 2012, defendants filed a motion in limine to exclude the testimony of Dr. Peter C. Meade, an expert retained by plaintiff Kent Bourland. (Mot. in Limine Regarding Test. by Expert Peter C. Meade, M.D., ECF 29.) Plaintiff filed an opposition to the motion on December 24, 2012 (Pl.'s Opp'n & Resp. to Defs.' Mot. in Limine, ECF 31) and defendants filed a reply on December 31, 2012 (Reply, ECF 38.) For the reasons stated below, defendants' motion is DENIED.
The following motion has been decided based upon the record presently before the court. The ruling is made without prejudice and is subject to proper renewal, in whole or in part, during trial. If a party wishes to contest a pretrial ruling, it must do so through a proper motion or objection, or otherwise forfeit appeal on such grounds. See FED.R.EVID. 103(a); Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001) ( "Where a district court makes a tentative in limine ruling excluding evidence, the exclusion of that evidence may only be challenged on appeal if the aggrieved party attempts to offer such evidence at trial.") (alteration, citation and quotation omitted).
Meade is an Assistant Professor of Surgery at Tulane University Medical Center who has "specialized in treating victims of trauma." (Rule 26 Report ¶ 1, ECF 29.) In his Rule 26 Report, Meade summarizes his intended testimony as follows: When permitted or ordered to bite, the Redding police dog was far more likely to cause serious injuries than a comparable dog not trained and selected for work as a police dog. Also, when permitted or ordered to bite  Bourland, the police dog created a substantial risk of causing serious bodily injury to  Bourland. As a result of the police dog attack,  Bourland also faced a reasonable possibility of serious infection. Finally, when the dog was biting  Bourland, because of the pain and terror of the dog attack one should have expected that  Bourland's natural and predictable reaction would be to try and stop the dog from biting, whether by hitting, kicking, grabbing, or by some other method to stop the biting.
In addition to plaintiff's medical records, Meade bases his opinion
(1) "[m]edical records. . . of over 800 persons attacked and bitten
by police dogs used by various Southern California law enforcement
agencies"; (2) "[m]edical records from Martin Luther King medical
center of over 1000 persons bitten by ordinary dogs,"*fn1
(3) "over 600 photographs of injuries inflicted by Los
Angeles Police Department (LAPD) dogs between 1991 and 1992 and
Montebello Police Department dogs between 1988 and 1992; (4) "[t]he
medical literature on dog bite injuries in general and police dog bite
injuries in particular"; (5) LAPD records of persons
bitten by police dogs between 1988 and 1990 and all corresponding
medical records Meade was able to find; (6) "[s]tatistics showing the
frequency that baton strikes by LAPD officers and dog attacks by LAPD
dogs cause persons to be admitted into a hospital for in-patient
treatment," derived from a study published in 1991 that reviewed
incidents in 1989; (7) "[v]ideotapes of police dogs attacking and
biting"; (8) training materials on the use of police batons, including
a LAPD bulletin from 1986; and (9) "[d]epositions and trial
transcripts of testimony by trainers of police dogs regarding the
training of the dogs to attack and bite" from various police
departments. (Id. ¶ 2.)
Meade also provided a copy of his own article on dog bites, Police and domestic dog bite injuries: What are the differences? What are the implications about police dog use?, 37 INJURY EXTRA 395 (2006). (Id.; Ex. 1, ECF 31.) The article compares domestic and police dog bites and concludes that the latter are more serious because of the way police dogs are trained to bite and the breeds of dogs used by police departments. (Ex. 1, ECF 31.) The domestic bite data Meade used for the study is from 1989 through 1996 and the police dog bite data is from 1988 through 1990. (Id.) There is no evidence regarding whether Meade's article or the other articles on which he relies were subject to peer review.
Under Federal Rule of Evidence 702 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The court is obligated to perform a "gatekeeping" function to ensure that expert testimony is both relevant and reliable. Kumho Tire Co., Ltd. v. ...