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Trulove v. D'Amico

United States District Court, N.D. California

February 27, 2018




         Pending before the Court are the motions of plaintiff Jamal Trulove to exclude expert testimony of two retained experts, Anthony Brass and Craig Fries (Dkt. Nos. 169 and 173), as well as his motion to exclude certain unretained experts (Dkt. No. 174).[1] Also pending before the Court is the motion of defendants Maureen D'Amico, et al., to exclude plaintiff's retained experts, Pezdek, Norris, Trainum, and Kruger. (Dkt. No. 171.) Having carefully considered the papers submitted in support and in opposition, and the arguments of the parties, the Court rules as follows:

         I. Plaintiff's Motion to Exclude Brass (Dkt. No. 169)

         The motion is Granted. Defendants' expert disclosure identified Anthony Brass, a former San Francisco district attorney, for the purpose of offering three opinions: (1) the sufficiency of the evidence of plaintiff's guilt and probable cause to charge him; (2) whether certain evidence was Brady material; and (3) whether there was probable cause to proceed with a retrial of plaintiff after his conviction was vacated by the Court of Appeal. Brass confirmed at his deposition that these were the areas of his opinions. All three disclosed areas of testimony are legal conclusions as to the ultimate issues in the case and impermissible subjects for expert testimony. See Torres v. City of Los Angeles, 548 F.3d 1197, 1214 n.11 (9th Cir. 2008) (holding district court abused its discretion when it allowed expert to offer legal conclusion on existence of probable cause); United States v. Lockett, 919 F.2d 585, 590 (9th Cir. 1990) (“A witness is not permitted to give a direct opinion about the defendant's guilt or innocence.”). Likewise, to the extent Brass's opinions are offered on the subject of whether a prosecutor would find any witness credible, such opinions are impermissible. See United States v. Candoli, 870 F.2d 496, 506 (9th Cir. 1989) (“[A]n expert witness is not permitted to testify specifically to a witness' credibility or to testify in such a manner as to improperly buttress a witness' credibility.”), accord Reed v. Lieurance, 863 F.3d 1196, 1209 (9th Cir. 2017). To the extent that defendants' contend in their opposition that Brass can testify to other areas of expertise, his disclosure and deposition did not address those subjects of testimony. The Court therefore excludes his testimony.

         II. Plaintiff's Motion to Exclude Fries (Dkt. No. 173)

         The motion is Granted. Defendants offered Craig Fries to opine on the meaning of the physical and forensic evidence to offer a bullet trajectory analysis, and to conclude how the shooting occurred. His report offered thirteen specific conclusions “to a reasonable degree of scientific certainty” as to how the shooting occurred and the significance of the shell casing locations. It also critiqued the opinions offered by plaintiff's experts regarding the shell casings and description of the shooting.

         Fries is a computer animator with no science background, and no medical or forensic education or training. He used computer software to create crime scene reconstructions based on basic principles of mathematics and physics (fields also not within his expertise). Defendants contend that he should be able to offer his opinions based on information he analyzed in the autopsy reports, photos, testimony, and CSI reports. However, he offers opinions which extend beyond the simply turning the data he reviewed into a visual form. His opinions and illustrations require inferential leaps from that evidence, and such leaps require greater expertise than he possesses. (See Plaintiff's Exh. I in support of the motion, Melinek Report, ¶¶ 10-32.) Fries' testimony is inadmissible because he lacks the relevant qualifications to support the conclusions and opinions he offers. See Avila v. Willits Envtl. Remediation Tr., 633 F.3d 828, 839 (9th Cir. 2011) (holding district court may properly exclude expert who offers opinions outside “the reasonable confines of his subject area” without even evaluating the reliability of his methods); cf. People of the Territory of Guam v. Reyes, 879 F.2d 646, 650-51 (9th Cir. 1989) (opinion as to position of victim and bullet trajectory based on entry and exit wounds, location of bullet hole, distances involved is properly the subject of testimony from forensic pathologist); Flores v. McDonald, No. CV 09-5780 GW AJW, 2014 WL 102343, at *15 (C.D. Cal. Jan. 7, 2014) (forensic pathologist is qualified to testify about bullet trajectories).

         Fries also fails to provide a coherent explanation of his methodology and how it would permit him to reach the conclusions he offers. In response to the motion, defendants did not offer any treatise, peer reviewed article, or other evidence to indicate that the conclusions Fries reaches are reliable.

         Moreover, presented as expert opinions, his conclusions and illustrations offer too great a potential to mislead and confuse the jury. While the Court agrees that some amount of illustration of the crime scene and witness testimony would aid the jury's understanding, representing to a jury that Fries' conclusions are based upon expert analysis of the underlying data, when the proffered expert lacks the scientific expertise to reach such conclusions reliably, is impermissible. Fries' testimony is excluded.

         III. Plaintiff's Motion to Exclude Unretained Experts (Dkt. No. 174)

         The motion is Granted. The Court first notes that defendants did not oppose the motion to exclude the testimony of Officers Daniel Chui and Eric Perez, and the motion is Granted on that basis. In addition, the testimony defendants seek to offer from Sergeant Kyra Delaney and Chief Toney Chaplin is excluded on the grounds that defendants failed to disclose these experts timely or provide full expert reports as required by Federal Rule of Civil Procedure 26(a)(2).

         Rule 26(a)(2)(B) provides that, “[u]nless stipulated or ordered by the court, [the disclosure of the identity of witnesses pursuant to Rule 26(a)(2)(A)] must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B); cf. Downey v. Bob's Disc. Furniture Holdings, Inc., 633 F.3d 1, 6-7 (1st Cir. 2011) (expert is not “retained or specially employed” if opinions are based upon personal knowledge and observations in the events giving rise to the litigation). Witnesses not expressly required by Rule 26(a)(2)(B) to provide a full written report must nevertheless be disclosed timely with a summary of the facts and opinions to which the witness is expected to testify. Fed.R.Civ.P. 26(a)(2)(C). “Rule 37(c)(1) gives teeth to [these requirements] by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001). Rule 37(c)(1) provides a sanction for failure to comply with the disclosure requirements of Rule 26(a). See Fed R. Civ. P. 37 advisory committee's note, 1993 Amendments. The sanction of exclusion is “self-executing” and “automatic.” Yeti by Molly, 259 F.3d at 1106 (quoting advisory committee's note). In determining whether this sanction should be imposed, the burden is on the party facing the sanction to demonstrate that the failure to comply with Rule 26(a) is substantially justified or harmless. See Yeti by Molly, Ltd., 259 F.3d at 1107 (“Implicit in Rule 37(c)(1) is that the burden is on the party facing sanctions to prove harmlessness.”).

         Here, the deadline to disclose expert reports was July 28, 2017. On that date, defendants served expert disclosures listing Chaplin and Delaney as unretained experts, but did not summarize all the facts and opinions on which they were prepared to testify, as required under Rule 26(a)(2)(C). Chaplin was a person with “duties as the party's employee [that] regularly involve giving expert testimony, ” and who therefore was required under Rule 26(a)(2)(B) to provide a formal written report of his opinions. See Torres, 548 F.3d at 1213 (trial court abused discretion by allowing “gang specialist” who regularly provided expert opinions about gangs “to testify without providing a written expert report”). Neither Chaplin nor Delaney had any personal knowledge about the events giving rise to the litigation, but were only given information later and asked to form opinions “solely for the purposes” of the litigation. Cantu v. United States, No. CV1400219MMMJCGX, 2015 WL 12743881, at *5 (C.D. Cal. Apr. 6, 2015) (“[T]he critical distinction between retained and non-retained experts is the nature of the testimony the expert will provide, and whether it is based only on percipient knowledge or on information reviewed in anticipation for trial.”). Both Chaplin and Delaney were witnesses “specially employed” to provide expert testimony in this matter, and required to provide reports under Rule 26(a)(2)(B). Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 819-20 (9th Cir. 2011) (holding parties must produce expert reports for opinions developed for the purposes of the litigation).

         Having failed to comply with the rule, the burden shifts to defendants to show their failure to comply with the rules was justified, or that it was harmless. Defendants have failed to do so. Plaintiff was prejudiced in his ability to depose these proffered experts or to rebut their testimony. Plaintiff was required to depose all four of the proposed unretained experts, only to find that defendants withdrew two of the disclosed witnesses, and did little to prepare the other two to testify as to their opinions and the basis for them. (See, e.g., Plaintiff's Exh. A in support of motion [Delaney Depo.] at 20:21- 21:2 (“I can't tell you an answer because I haven't been asked my opinion, so I can't-I didn't come in here with some set statement of opinions. I didn't have an itemized opinion list.”).) The opportunity to depose these witnesses without a clear explanation in advance for the opinions they would offer, and the basis for those opinions, completely undercut the purposes of expert discovery. To the extent these two proposed experts were offered to testify as to the existence of probable cause, such opinions are an improper subject of expert testimony. See Torres, ...

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