Opinion
CASE NO. C12-1398JLR
11-03-2014
JONATHAN DASHO, Plaintiff, v. CITY OF FEDERAL WAY, et al., Defendants.
ORDER DENYING DEFENDANTS' DAUBERT MOTION WITHOUT PREJUDICE AND ORDERING SUPPLEMENTAL FILINGS
Before the court is Defendants City of Federal Way, Officer Kelly Smith, and Officer Steven Wortman's ("Defendants") motion to exclude expert witnesses (Mot. (Dkt. # 39)). Defendants seek to exclude the testimony of Plaintiff Jonathan Dasho's proposed expert witnesses Kay Sweeney and D.P. Van Blaricom. (See Mot. at 1.) The court has reviewed Defendants' motion, all submissions filed in support of and opposition thereto, the relevant portions of the record, and the applicable law, and finds the current state of the record insufficient to support a fully informed decision on this matter. As such, the court DENIES Defendants' motion without prejudice and ORDERS the parties to submit supplemental filings as described below.
I. BACKGROUND
This litigation arises out of an encounter between Mr. Dasho and Officers Smith and Wortman that occurred on August 19, 2009. (See Wortman Decl. (Dkt. # 42) ¶ 3, Ex. A ("Wortman Report") at 1; Resp. (Dkt. # 43) at 2 (citing State v. Dasho, 171 Wash. App. 1030, *1 (Wash. Ct. App. 2012)).) On that night, neighbors reported a disturbance at Mr. Dasho's apartment. (Resp. at 2 (citing Dasho, 171 Wash. App. at Officers Smith and Wortman responded to that call and demanded to be let into the apartment. (Id.; Wortman Report at 1-2.) Jared Dasho, Mr. Dasho's brother, let the officers into the apartment where Mr. Dasho lay naked on the living room floor. (Resp. at 2 (citing Dasho, 171 Wash. App. at *1).) As the officers entered the living room, Mr. Dasho jumped up, ran into the kitchen, and grabbed a blunt-tipped knife out of a drawer. (Id.; see Wortman Report at 2.) Ignoring commands from the officers to stop, Mr. Dasho exited the kitchen and entered the living room at a rapid pace with the knife raised over his head. (Resp. at 2 (citing Dasho, 171 Wash. App. at *1); Miller Decl. (Dkt. # 40) ¶ 3, Ex. A at 3.) Each officer shot Mr. Dasho multiple times. (See Wortman Report at 2; Smith Decl. (Dkt. # 41) ¶ 3, Ex. A ("Smith Report") at 2; Resp. at 2 (citing Dasho, 171 Wash. App. at *1).)
A state court jury convicted Mr. Dasho of two counts of third degree assault. Dasho, 171 Wash. App. at *2. Mr. Dasho appealed, in part on the ground that the trial judge should have instructed the jury on the lesser included offense of attempted assault. Id. at *1. The Washington Court of Appeals affirmed his conviction. Id. In doing so, the court of appeals found that the evidence at trial did not warrant a jury instruction on attempted assault. Id. at *4-5.
On August 20, 2012, Mr. Dasho filed the instant action, in which he alleges that Officers Smith and Wortman used excessive force against him in violation of his constitutional rights. (See generally Compl. (Dkt. # 1).) To support this allegation, Mr. Dasho proposes to call expert witnesses, including the two witnesses at issue here—Kay Sweeney and D.P. Van Blaricom. (See Disc. of Expert Wit. (Dkt. # 32) at 3-5.) Mr. Dasho offers Mr. Sweeney as an expert in forensic science (see id. at 4), and Mr. Van Blaricom as an expert in police practices (see id. at 3).
Mr. Sweeney intends to testify that after entering the living room Mr. Dasho likely did not continue moving toward the officers, as they claim he did. (See Disc. of Expert Wit. Ex. F ("Sweeney Report") at 8.) Having examined Mr. Dasho's apartment, police reports, the physical evidence from the scene, and medical records (see Resp. at 3; Sweeney Report at 2-8), Mr. Sweeney opines that events more likely unfolded as follows: Mr. Dasho made a right turn after entering the living room and ran away from the officers at an angle. (Sweeney Report at 8.) Once the shooting started, Mr. Dasho turned and ran back toward the kitchen. (Id.) The second bullet hit Mr. Dasho in the left forearm as he ducked and turned. (Id.) Four bullets hit Mr. Dasho in the right chest, shoulder, and upper arm as he moved toward the kitchen. (Id. at 8-9.) Before reaching the kitchen, Mr. Dasho was hit in the legs, and he fell on the floor near the entrance to the kitchen. (Id. at 9.) The officers continued shooting at Mr. Dasho as he fell. (Id.)
Mr. Van Blaricom proposes to testify regarding police practices. (See Disc. of Expert Wit. at 3, Ex. A ("Van Blaricom Report"); Resp. at 4.) In forming his opinions, Mr. Van Blaricom has examined police reports, Mr. Sweeney's report, portions of the trial testimony from Mr. Dasho's assault trial, Federal Way Police Department use of force policies, and National Law Enforcement Center policies on the use of force and the investigation of officer-involved shootings. (Van Blaricom Report at 1-2.) Mr. Dasho explains that Mr. Van Blaricom will educate the jury on general principles and offer an opinion in response to a hypothetical question. (See Resp. at 10-12). Defendants seek to exclude the testimony of Mr. Sweeney and Mr. Van Blaricom under Federal Rule of Evidence 702. (Mot. at 1.)
II. ANALYSIS
Rule 702 of the Federal Rules of Evidence governs the admission of expert testimony in federal court:
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:Fed. R. Evid. 702. Rule 702 requires that "'[e]xpert testimony . . . be both relevant and reliable.'" Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (quoting United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir. 2001)). Relevancy, which is not in dispute here, "simply requires that '[t]he evidence . . . logically advance a material aspect of the party's case.'" Id. (quoting Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007)).
(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.
Reliability requires the court to assess "whether an expert's testimony has a 'reliable basis in the knowledge and experience of the relevant discipline.'" Id. (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (citations and alterations omitted)). The Supreme Court has suggested several factors that courts can use in determining reliability: (1) whether a theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate of the theory or technique; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific community. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993). The reliability inquiry is flexible, however, and trial judges have broad latitude to focus on the considerations relevant to a particular case. Kumho Tire, 526 U.S. at 150. Ultimately, the court must rule not on the correctness of the expert's conclusions but on the soundness of the methodology, Estate of Barabin, 740 F.3d at 463 (citing Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010)), and the analytical connection between the data, the methodology, and the expert's conclusions, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
A. Kay Sweeney
As outlined above, Mr. Sweeney intends to testify regarding Mr. Dasho's movements while Officers Smith and Wortman were shooting at him. (See Sweeney Report at 8-9; Resp. at 3.) However, the record reveals little about how Mr. Sweeney arrived at his conclusions. Mr. Dasho's submissions contain no discussion of the methods Mr. Sweeney used, the reliability of those methods, or the way in which Mr. Sweeney applied those methods to the facts to determine Mr. Dasho's movements. Indeed, Mr. Sweeney's report consists of a recitation of the physical evidence followed by his conclusions, with little reasoning to explain those conclusions. (See generally Sweeney Report.)
Defendants' motion attacks Mr. Sweeney's opinions on the ground that they have an insufficient factual basis and are the product of a flawed analysis. (See Mot. at 10-11; Reply (Dkt. # 50) at 3-5.) However, without information on Mr. Sweeney's methods, their reliability, and his application of those methods to the facts, the court cannot perform the reliability inquiry mandated by Rule 702 and the case law interpreting it. That is, the court cannot determine whether Mr. Sweeney has reasonably applied reliable methods and Defendants simply disagree with his conclusions; or, alternatively, whether his proposed testimony amounts to unreliable junk science, which should be excluded. See Fed. R. Evid. 702; Joiner, 522 U.S. at 146; Daubert 509 U.S. at 592-94; Estate of Barabin, 740 F.3d at 463.
The court declines to render a decision on this inadequate record. Moreover, there is no need for the court to render a decision now. Trial in this matter is scheduled for July 20, 2015 (Sched. Ord. (Dkt. # 38) at 1); and as such, ample time remains to supplement the record with respect to Mr. Sweeney. Therefore, the court denies Defendants' motion with respect to Mr. Sweeney, but without prejudice, and orders Mr. Dasho to provide a supplemental disclosure.
The court denies one aspect of Defendants' motion with prejudice—Defendants' argument that collateral estoppel bars Mr. Sweeney's testimony. (See Mot. at 9-10.) The court has reviewed the Washington Court of Appeals' opinion to which Defendants cite and finds that it did not decide the issue of whether Mr. Sweeney's analysis was correct. See Shoemaker v. City of Bremerton, 745 P.2d 858, 860 (Wash. 1987) (requiring as an element of collateral estoppel that the "identical issue[] . . . have been actually litigated and necessarily determined in the prior action"). The opinion decided only that Mr. Sweeney's testimony at trial did not warrant an attempted assault instruction. See Dasho, 171 Wash. App. at *4-5. Furthermore, neither that opinion nor the jury's verdict finding Mr. Dasho guilty of assault necessarily determined that Mr. Sweeney's opinions are incorrect. As such, Mr. Sweeney is not collaterally estopped from testifying in this case. See Shoemaker, 745 P.2d at 860.
Mr. Dasho's supplemental disclosure shall detail (a) the methods Mr. Sweeney used to reconstruct what occurred in Mr. Dasho's apartment, (b) why those methods are reliable in performing that type of task, and (c) how Mr. Sweeney applied those methods to the facts of this case. Mr. Dasho shall file his submission by December 15, 2014. Defendants will then have until January 15, 2015, to depose Mr. Sweeney. Defendants shall refile their motion to exclude by January 26, 2015, or no later than 10 days after their latest deposition, whichever is earliest. If Defendants refile their motion, the briefing schedule will be governed by Local Rule 7(d)(3)'s provisions related to third Friday motions. See Local Rules W.D. Wash. LCR 7(d)(3). If Mr. Dasho fails to provide a supplemental submission, the court will exclude Mr. Sweeney's testimony sua sponte.
As discussed below, Defendants will have an opportunity to depose Mr. Van Blaricom as well.
B. Mr. Van Blaricom
Mr. Van Blaricom intends to testify about police practices. (See Resp. at 10; Disc. of Expert Wit. at 3.) In response to the instant motion, Mr. Dasho has assured the court that Mr. Van Blaricom will not offer legal conclusions or an opinion on the validity of Mr. Sweeney's forensic conclusions. (Resp. at 10.) Instead, Mr. Blaricom will "provide education to the jury on general principles . . . [and] offer an opinion based upon a hypothetical question." (Id.) However, Mr. Dasho has not made clear the particular principles about which Mr. Van Blaricom will testify. Nor has Mr. Dasho disclosed the hypothetical question or questions that he will pose to Mr. Van Blaricom, or the opinion that Mr. Van Blaricom will offer in response to those questions.
As Defendants point out, Federal Rule of Civil Procedure 26(a)(2)(B)(i) requires a "complete statement of all opinions the witness will express and the basis and reasons for them." Fed. R. Civ. P. 26(a)(2)(B)(i). Accordingly, the court denies Defendants' motion with respect to Mr. Van Blaricom, but without prejudice, and orders Mr. Dasho to include in his supplemental filing (a) the hypothetical question or questions that he intends to pose to Mr. Van Blaricom, (b) the opinions that Mr. Van Blaricom will offer in response to those questions, and (c) the principles about which Mr. Van Blaricom will testify, as well as (d) any additional information needed to inform the court's Rule 702 analysis regarding Mr. Van Blaricom. The framework outlined above with respect to Mr. Sweeney regarding deadlines, briefing, and the opportunity for a deposition shall likewise apply to Mr. Van Blaricom.
III. CONCLUSION
For the foregoing reasons, the court DENIES Defendants' motion to exclude expert witnesses (Dkt. # 39) but without prejudice to refiling after the parties supplement the record. To that end, the court ORDERS as follows:
(1) Mr. Dasho shall submit a supplemental filing related to Mr. Sweeney and Mr. Van Blaricom by December 15, 2015.The court GRANTS Mr. Dasho's motion for leave to file a response after the filing deadline (Dkt. # 51).
(2) That filing shall contain a clear and detailed description of (a) Mr. Sweeney's methods, (b) why those methods are reliable in precisely reconstructing the scene of a shooting, and (c) how Mr. Sweeney applied those methods to the facts of this case.
(3) That filing shall also include a clear and detailed description of (a) the hypothetical question or questions that Mr. Dasho proposes to ask Mr. Van Blaricom, (b) the opinions that Mr. Van Blaricom will offer in response to those questions, (c) the principles about which Mr. Van Blaricom will testify, and (d) any further information needed to inform the court's Rule 702 analysis with respect to Mr. Van Blaricom.
(4) Defendants shall have until January 15, 2015, to depose Mr. Sweeney and Mr. Van Blaricom.
(5) If Defendants depose Mr. Sweeney or Mr. Van Blaricom, Defendants shall refile their motion to exclude within 10 days of their latest deposition. If Defendants choose not to conduct a deposition, they shall refile their motion to exclude by January 26, 2010.
(6) The briefing schedule for Defendants' refiled motion to exclude shall be governed by Local Civil Rule 7(d)(3)'s provisions for third Friday motions.
(7) If Mr. Dasho fails to provide a supplemental filing in accordance with this order, the court will exclude sua sponte the testimony of the expert or experts to whom that failure pertains.
(8) The Clerk shall RENOTE the pending motion for summary judgment (Dkt. # 34) for April 13, 2015.
Defendants do not oppose this motion. (Resp. to Mot. for Ext. (Dkt. # 54) at 1.)
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Dated this 3rd day of November, 2014.
/s/_________
JAMES L. ROBART
United States District Judge