Krause v. Mohave, County of ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ryan Andrew Krause, et al., No. CV-17-08185-PCT-SMB 10 Plaintiffs, ORDER 11 v. 12 County of Mohave, et al., 13 Defendants. 14 15 Pending before the Court are two evidentiary motions: Plaintiff’s Daubert Motion 16 to Preclude Defense Animation, Drawings & Expert’s Opinions, (Doc. 123, “Mot. 1”), and 17 Defendants’ Daubert Motion Re: David M. Lauck, (Doc. 129, “Mot. 2”.) The parties filed 18 responsive motions to each. (Doc 134, “Resp. 1; Doc. 141, “Reply 1”; Doc. 138, “Resp. 19 2”; Doc. 140, “Reply 2”.) Neither party requested oral argument. The Court considers the 20 parties’ motions, relevant case law, and enters the following Order: 21 I. BACKGROUND 22 a. Factual Summary 23 At approximately 7:14 p.m. two Mohave County Sherriff’s Office (“MCSO”) 24 Deputies responded to the 911 call of Ms. Shanna Farris. Earlier that evening while calling 25 for her cats outside her trailer, Farris heard a male voice coming from the direction of the 26 neighboring Krause residence. Shortly thereafter, a gunshot, seemingly fired from the same 27 location, impacted the gravel driveway not far behind her. Farris called 911. MCSO 28 deputies Jordan Selmanson, and Richard Schiller arrived separately, took Farris’ report, 1 and approached the Krause residence. Drey Krause and his mother were inside. The 2 deputies walked up the driveway together then took separate positions near the entryway. 3 Selmanson approached the side door of the residential trailer and Schiller passed that door 4 and investigated the trailer’s sliding glass door located further south. At the front door, 5 Selmanson knocked and announced: “Sherriff’s office.” There was no answer. He knocked 6 and announced a second time, backing away from the door immediately thereafter. Shotgun 7 in hand, Drey Krause began to open the door. As the door opened, a shotgun barrel, 8 pointing generally downward, protruded from the entryway. Continuing his backward 9 retreat, Selmanson, at least twice, ordered Krause to drop his weapon. According to 10 Selmanson, Krause exited the trailer and, now gripping the shotgun with both hands, began 11 to raise the barrel to ninety degrees as he moved toward Selmanson. Seeing the shotgun 12 rise and point in his direction, Selmanson engaged. He fired three shots. Two bullets found 13 their mark and Krause later died of his wounds. 14 b. Procedural History 15 This Order covers Daubert challenges by each party. Plaintiff challenges the 16 admission of computerized animations created to illustrate the shooting incident and the 17 immediate moments preceding. Defendants seek exclusion of testimony by Plaintiff’s 18 police practices expert, David. M. Lauck, on both procedural and substantive grounds. 19 Expert disclosures are governed by this Court’s July 30, 2018 Scheduling Order which 20 required disclosure of Plaintiff’s initial expert testimony by June, 14, 2019, Defendants’ 21 initial expert testimony by August 2, 2019, all expert rebuttals by August 30, 2019, and set 22 discovery to close on October 18, 2019. (Doc. 37.) Trial is currently set for September 15, 23 2020. (Docs. 132-33.) 24 II. LEGAL STANDARD 25 Under Rule 702 of the Federal Rules of Evidence, “[a] witness who is qualified as 26 an expert by knowledge, skill, experience, training, or education may testify in the form of 27 an opinion or otherwise,” provided: 28 (a) the expert’s scientific, technical, or other specialized 1 knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2 3 (b) the testimony is based on sufficient facts or data; 4 (c) the testimony is the product of reliable principles and methods; 5 and 6 7 (d) the expert has reliably applied the principles and methods to the facts of the case. 8 9 Fed. R. Evid. 702(a)-(d). Rule 702 should be applied consistent with the “liberal thrust” of 10 the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion 11 testimony.’” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 12 L.Ed.2d 469 (1993) (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 13 439, 102 L.Ed.2d 455 (1988)). In applying the Rule, the district court acts as a gatekeeper 14 and determines whether expert testimony has “a reliable basis in the knowledge and 15 experience of the relevant discipline” by the preponderance of the evidence. See Daubert 16 509 U.S. at 597, 113 S.Ct. 2786; Fed. R. Evid. 104(a). That “gatekeeping” obligation to 17 admit only expert testimony that is both reliable and relevant is critical “considering the 18 aura of authority experts often exude, which can lead juries to give more weight to their 19 testimony.” Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063-64 (9th Cir. 2002). That said, 20 “[s]haky but admissible evidence is to be attacked by cross examination, contrary evidence, 21 and attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 22 (9th Cir. 2010). Trial courts are accorded wide discretion in this “flexible” inquiry. Kumho 23 Tire Co. v. Carmichael, 526 U.S. 137, 148-150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). 24 The Supreme Court has suggested several factors can be examined to determine if an 25 expert’s testimony is reliable: “(1) whether a theory or technique can be tested; (2) whether 26 it has been subjected to peer review and publication; (3) the known or potential error rate 27 of the theory or technique; and (4) whether the theory or technique enjoys general 28 acceptance within the relevant scientific community.” United States v. Hankey, 203 F.3d 1 1160, 1167 (9th Cir. 2000) (citing Daubert, 509 U.S. at 592-94). “Daubert’s tests for the 2 admissibility of expert scientific testimony do not require exclusion of expert testimony 3 that involves specialized knowledge rather than scientific theory.” United States v. 4 Bighead, 128 F. 3d 1329, 1330 (9th Cir. 1997) (citing United States v. Cordoba, 104 F.3d 5 225 (9th Cir.1997)). 6 As a preliminary matter, the court must determine if a witness has the required 7 expertise—“knowledge, skill, experience, or education”—under Rule 702(a). Courts then 8 ensure that “any and all scientific testimony or evidence admitted is not only relevant, but 9 reliable.” Daubert, 509 U.S. at 589. While “no one denies that an expert might draw a 10 conclusion from a set of observations based on extensive and specialized knowledge,” 11 Kuhmo Tire, 526 U.S. at 156, 119 S.Ct. 1167, expert opinions based on unsubstantiated 12 generalizations or opinions not derived by the scientific method must be excluded. Daubert 13 v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316 (9th Cir. 1995). The proponent 14 of expert testimony bears the burden of showing that the proposed testimony is admissible 15 under Rule 702. Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007); Lust ex. rel. Lust v. 16 Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). When a party that fails to 17 carry this burden, their expert’s opinions are not admissible. Cooper, 510 F.3d at 942. 18 III. DISCUSSION 19 Each party brings a motion to preclude admission of evidence under Daubert and 20 the Federal Rules of Evidence. (See Docs. 123, 129.) The Court separately considers each 21 below: 22 a. Opinions of Plaintiff’s Expert, David M. Lauck (Doc. 129) 23 Defendants challenge admission of testimony by Plaintiff’s expert witness, David 24 M. Lauck, on four grounds—three substantive and one procedural. Specifically, they argue 25 (1) that Lauck improperly offers legal conclusions, (2) that his conclusions are not based 26 on sufficient data, (3) that he lacks adequate qualifications and foundation to make them, 27 and (4) that some of Lauck’s testimony is untimely under this Court’s scheduling order. 28 i. Legal Conclusions 1 Defendants first argue that Lauck’s opinions assert legal conclusions on the claims 2 at issue and should be precluded. (Mot. 2 at 2-5.) Expert testimony, when “otherwise 3 admissible,” is not objectionable merely because it embraces an ultimate issue. Fed. R. 4 Evid. 704(a). Determining whether testimony is “otherwise admissible” turns, in part, on 5 whether the expert testimony “help[s] the trier of fact” in either “understand[ing] the 6 evidence or . . . determin[ing] a fact in issue.” Fed. R. Evid. 702(a). Such opinions do not 7 aid the trier of fact in making a decision, but, instead, attempt to substitute an expert’s 8 judgment for that of the jury’s. Mukhtar v. Cal. State. Univ., Hayward, 299 F.3d 1053, 9 1066 n.10 (9th Cir. 2002). Thus, courts recognize, “[a]n expert witness cannot give an 10 opinion as to her legal conclusion, i.e. an opinion on an ultimate issue of law.” Mukhtar, 11 299 F.3d at 1066 n.10 (quoting United States v. Duncan, 42 F.3d 87, 101 (2d Cir. 1994)); 12 see also Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004). 13 On this point, Defendants are correct—Lauck may not offer opinion testimony in 14 the form of legal conclusions that presume the success of Plaintiff’s arguments on specific 15 claims. Many of Lauck’s opinions take that form. For example, Lauck repeatedly opines 16 that the use of force was “was not objectively reasonable.” (Mot. 2, Ex. 1 at 20.) Whether 17 Selmanson’s actions were “objectively reasonable” in light of the facts and circumstances 18 confronting them is a question reserved for the jury, or, if no material facts are in dispute, 19 for the Court. Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994); see also Torres v. Johnson 20 Lines, 932 F.2d 748, 751 (9th Cir. 1991) (expert testimony properly excluded where record 21 did not reveal “any specific evidence that was so technical or complex that a jury could not 22 have grasped it without the aid of experts”); Quinn v. Fresno Cty. Sherriff, No. 1:10-cv- 23 01617 LJO BAM, 2012 WL 2995477, at *3 (E.D. Cal. 2012) (“Weighing the credibility of 24 witnesses and resolving factual matters is not outside the common ability and knowledge 25 of a layperson; it is the precise role that the law assigns solely to a layperson as juror.” ) 26 (quoting Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005)). Elsewhere in his 27 report, Lauck goes further—he not only offers undisguised legal conclusions but concludes 28 that elements of specific legal claims are satisfied. (See e.g., Mot. 2, Ex. 1 at 33 & 35 1 (concluding that Selmanson caused “a harmful and offensive touching and the death of 2 Krause).) The Court agrees that the opinions identified by Defendants constitute legal 3 conclusions and are subject to exclusion. (See Mot. 2 at 3-4.)1 4 Plaintiff attempts, in vain, to save Lauck’s testimony by arguing that because 5 Lauck’s opinions come “from the viewpoint of an objectively reasonable retired 6 professional police officer,” they are not opinions on an ultimate issue. (Resp. 2 at 17-18.) 7 While expert opinions may indeed “embrace an ultimate issue,” experts cannot intrude 8 upon the province of the factfinder and render “legal conclusions” for which they are 9 unqualified to make. See Mukhtar, 299 F.3d at 1066 n.10. So, while Lauck may not use the 10 terms and adopt the conclusions identified, the Court does not bar him from expressing 11 opinions on the issues that derive from his expertise in police practices that fall short of 12 legal conclusions.2 13 ii. Assessing Lauck’s Qualifications and the Foundation for his 14 Opinions 15 Lauck’s qualifications are also at issue. Lauck, a police practices expert, is a former 16 law enforcement officer, firearms instructor and licensed gunsmith.3 Defendants argue that 17 Lauck’s opinions on the following topics are without foundation and that Lauck is 18 unqualified to make them: (1) the trajectory of bullets fired by Selmanson; and (2) the 19 failure to provide adequate medical care. (Mot. 2 at 9.)4 20 First, Defendants urge the Court to recognize that, whatever else he may be, Lauck 21 1 Defendants’ examples expand beyond those identified in this section. (See Doc. 129, Ex. 1 at 23 (“[The deputies] were deliberately indifferent to the medical needs of Krause, 22 denying him due process”), 25 (“failed to adequately or properly train Selmanson), 31 (MCSO “failed to follow departmental policy and ratified improper conduct of Selmanson 23 and Schiller” whom they also “failed to adequately or properly supervise”), 33 ([The deputies] “wrongful acts and neglect resulted in the unnecessary death” and thus “breached 24 the duty of due care they owed to Krause”).) 2 For example, Lauck may opine on whether Selmanson’s use of force or Defendants’ 25 conduct was appropriate under the circumstances. Cf. Davis v. Mason County, 927 F.2d 1473, 1484-85 (9th Cir. 1991) (noting that Rule 702 permits expert testimony comparing 26 an officer’s or municipalities conduct to “the industry standard”). 3 The Court finds Lauck generally qualified as a police practices and “use of force expert” 27 under Rule 702. See Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994) (recognizing that Rule 702 “contemplates a broad conception of expert qualifications.”). 28 4 In their Reply, Defendants withdrew an argument concerning Lauck’s expert qualifications to opine on the possible use of less-than-lethal force. (Reply 2 at 3 n. 3.) 1 is not an expert in ballistics or crime-scene reconstruction. Defendants are correct. Lauck’s 2 experience and credentials reveal no specific training in ballistics whatsoever. (See Resp. 3 2, Ex. A, B.) Forensic ballistics and bullet trajectory analysis is highly technical area, 4 subject to peer-reviewed research, and some degree of standardization.5 Ballistics 5 testimony requires specialized expertise. See e.g., United States v. Johnson, 875 F.3d 1265, 6 1280 (9th Cir. 2017); United States v. Cerna, No. CR 08-0730 WHA, 2010 WL 3448528, 7 at *4 (N.D. Cal. Sept. 1, 2010); United States v. Diaz, No. CR 05-00167 WHA, 2007 WL 8 485967, at *11 (N.D. Cal. Feb. 12, 2007); United States v. Scheffer, 523 U.S. 303, 312 9 (1998) (noting that ballistic analysis is squarely within the province of expert testimony 10 and not a layperson’s knowledge). And expertise in the field certainly requires more than 11 the ability to examine photographs of “wound path rods” as Plaintiff seemingly suggests. 12 (Doc. 138 at 11.) 13 Lauck’s opinions are entirely based on his general firearms and law enforcement 14 experience. The Court does not discount that experience. However, that experience simply 15 does not bear on his expertise to assess ballistic evidence or judge bullet trajectories. 16 Lauck’s “decades of experience as a [law enforcement officer], competitive shooter, [and] 17 gunsmith” cannot replace qualifications in ballistic forensics and do not qualify him to 18 opine on the highly technical area of bullet path reconstruction or ballistics. (Doc. 138 at 19 9); see also United States v. Astirita, No. 3:17-CR-00226-JO, 2018 WL 3097012, at *4-8 20 (D. Ore. June 20, 2018) (weighing expert use of differing techniques with varying degrees 21 of standardized error in retracing a bullet’s trajectory); Dominguez v. City of Los Angeles, 22 No. CV 17-4557-DMG (PLAx), 2018 WL 6164278, at *9 (C.D. Cal. Oct. 9, 2018) 23 (determining that because “experts still must be qualified to form the opinions that make 24 up their testimony . . . [r]eading a coroner’s report does not transform a police practices 25 5 Ballistics experts draw on a range of publications to support their opinions. See e.g., United States v. Astarita, No. 3:17-CR-00226-JO, 2018 WL 3097012, at *7 n.3 (D. Ore. 26 June 20, 2018) (citing Erwin J.A.T. Mattijssen, & Wim Kerkhoff, Bullet trajectory reconstruction – Methods, Accuracy and Precision, 262 Forensic Science Int'l 204 (2016)); 27 United States v. Fultz, 18 F.Supp.3d 748, 757-759 (citing Dean H. Garrison, Jr., Practical Shooting Scene Investigation: The Investigation and Reconstruction of Crime Scenes 28 Involving Gunfire 60 (2003) and Michael G.Haag & Lucien C. Haag, Shooting Incident Reconstruction 262 (2.ed. 2011). 1 expert into an expert on bullet trajectory analysis”).6 Lauck made no measurements or 2 calculations to support his conclusions. His investigation is entirely devoid of scientific 3 analysis for which he is unqualified to conduct. Other courts have excluded expert 4 testimony in similar circumstances. See Rojas Mamani v. Sanchez Berzain, 07-22459-CIV, 5 2018 WL 2980371, at *2 (S.D. Fla. Feb. 26, 2018); Lee v. City of Richmond, Va., 6 3:12CV471, 2014 WL 5092715, at *6 (E.D. Va. Sept. 30, 2014). Finding Lauck’s general 7 firearms expertise inadequate to support his opinions regarding bullet trajectories (and 8 conclusions derived thereof), the Court will exclude Lauck’s testimony on the topic. 9 Second, Defendants challenge Lauck’s qualifications to opine on whether the 10 officers failed to provide adequate medical care. Lauck is not a trained medical professional 11 and has no medical training in gunshot wound treatment. (See Mot. 2, Ex. 3 at 249:3-20; 12 see also Mot. 2, Ex. 1 at 23-25, Ex. 2 at 25.) Lauck obviously cannot testify as to the 13 severity of Krause’s injuries or opine on whether any medical care would have assisted 14 Krause, much less when administering such care would assist. However, Lauck’s expert 15 experience in police practices permits him to offer limited opinions here. To the extent his 16 testimony offers opinions on MCSO policies, their application to the circumstances, and 17 standard practices implemented in other jurisdictions, the testimony is allowable. 18 iii. Insufficient Support for Lauck’s Opinions 19 Defendants next challenge whether Lauck’s opinions are based on sufficient facts 20 and data as required by Daubert and Rule 702. (Mot. 2 at 6.) Experts must base their 21 opinions on specific facts. Guidroz-Brault v. Missouri Pacific R. Co., 254 F.3d 825, 831 22 (9th Cir. 2001). When an expert fails to do so, or bases opinions on “subjective belief or 23 unsupported speculation,” Daubert, 509 U.S. at 590, the expert’s testimony should be 24 excluded. Guidroz-Brault, 254 F.3d at 829-832. “When an expert opinion is not supported 25 by sufficient facts to validate it in the eyes of the law, or when indisputable record facts 26 contradict or otherwise render the opinion unreasonable, it cannot support a jury’s verdict.” 27 Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1436 (9th Cir. 1995) (quoting Brooke 28 6 Indeed, if such experience was sufficient, there would be no need for the existence of forensic ballistic science at all. 1 Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993)). Defendants 2 see Lauck’s opinions regarding Selmanson’s account as purely speculative and his 3 commentary about the deputies alleged violation of MCSO policies as not relevant. 4 1. Selmanson’s Account of the Shooting 5 Defendants raise several objections to Lauck’s opinions regarding Selmanson’s 6 account of the shooting. They first object to conclusions derived from Lauck’s crime scene 7 recreation and assessment of bullet trajectories. (Mot. 2 at 7.) For example, Lauck 8 determined that based on the autopsy report, Medical Examiner deposition testimony and 9 “trajectory of the bullet pass”, (Mot. 2, Ex.3 at 79:12-13), that “Krause was perpendicular 10 to Selmanson” when shot and that, thus, “even if Kruase’s firearms was raised to the ninety- 11 degree (90°) position, it was probably not pointing directly at Selmanson.” (Id., Ex. 1 at 12 23.) As discussed above, Lauck is unqualified to analyze the trajectory of the bullets fired 13 by Selmanson and the conclusions based on such analysis are necessarily excluded. Having 14 established the lack of expertise in ballistics and bullet trajectory analysis, insofar as 15 Lauck’s opinions regarding Selmanson and Krause’s respective physical locations at the 16 time of the shooting or Krause’s body position, rely on such analysis they are also properly 17 excluded. See General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997) (holding an expert 18 is not permitted to give an opinion based simply on “subjective belief or unsupported 19 speculation”). 20 2. Violation of MCSO Policies 21 To the extent that Lauck opines that Selmanson and Shiller failed to follow MCSO 22 procedures, Defendants characterize such opinion as “not relevant to any of the federal or 23 state law claims at issue.” (Mot. 2 at 10.) Plaintiff, largely ignoring Defendants’ argument 24 that the opinions lack bearing on the legal claims, emphasizes that Lauck’s opinions on the 25 MCSO violations “are relevant to and will help the jury understand the evidence.” (Doc. 26 138 at 12.) 27 Defendants point out that Plaintiff’s § 1983 municipal liability claim requires 28 establishing a policy or procedure “amounts to deliberate indifference to the plaintiff’s 1 constitutional right.” Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th 2 Cir. 1997). Thus, Luack’s opinion that Selmanson or Shiller’s violated MCSO policies is 3 irrelevant—internal policies, like the MCSO policies at issue here, do not create 4 constitutionally protected due process rights. See Devereaux v. Perez, 218 F.3d 1045, 1056 5 (9th Cir. 2000); see also Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009); Case v. 6 Kitsap Cnty. Sheriff’s Dept., 249 F.3d 921, 929 (9th Cir. 2001); Mesa v. City of New York, 7 09 CIV. 10464 JPO, 2013 WL 31002, at *25 (S.D.N.Y. Jan. 3, 2013). Luack’s opinions 8 regarding the possible violation of MCSO regulations cannot establish a constitutional 9 violation. Nonetheless, they may be relevant. (Contra Mot. 2 at 9); see also Mellen v. Winn, 10 900 F.3d 1085, 1104 (9th Cir. 2018) (“The [police practices expert] report should have 11 been admitted to assist the trier of fact in determining whether [defendant’s] conduct 12 deviated so far from institutional norms that the jury could conclude that [defendant] was 13 reckless or deliberately indifferent to [plaintiff’s] constitutional rights.”). In this regard, 14 Lauck’s opinions, though not dispositive, may inform the trier of fact’s determination on 15 whether violation of MCSO policies amounts to “deliberate indifference” or was the 16 “moving force behind the constitutional violation.” See Hyun Ju Park v. City and Cty. of 17 Honolulu, 292 F.Supp.3d 1080, 1095-96. The Court will not exclude Lauck’s assessments 18 regarding possible violation of MCSO policies. 19 iv. Exclusion of Lauck’s Opinions as Untimely 20 At deposition, three months after the expert report submission deadline passed, 21 Lauck for the first time expressed his belief that Krause was in his home when shot by 22 Selmanson. (See Mot. 2, Ex. 3 at 221:9-226:19; 250:5-263:24; see also id., Ex. 1 at 44.) 23 Defendants argue Lauck’s deposition testimony and amended reports filed thereafter are 24 untimely, mischaracterize record evidence, and fall outside the limited scope of an expert’s 25 opinion in violation of Rule 26(a) and are subject to exclusion under Rule 37(c). (Mot. 2 at 26 10-12.) 27 1. Lauck’s Opinions Are Untimely 28 Parties must make expert disclosures at the times and in the sequence that the Court 1 orders. Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011) 2 (citing Fed. R. Civ. P. 26(a)(2)(D)). There is no question that Lauck’s new opinions were 3 untimely. This Court’s scheduling order set a deadline for disclosure of Plaintiff’s expert 4 testimony under Fed. R. Civ. P. 26(a)(2) at June 14, 20197 and disclosure of rebuttal 5 testimony at August 30, 2019. (Doc. 37.) Lauck shared the opinions in question during an 6 October 14th deposition. Further, Lauck’s opinions were novel, not included in any prior 7 disclosure, and shared for the first time in the middle of his deposition. More importantly, 8 the Court agrees with Defendants that Lauck’s opinion—that Krause was inside his home 9 when shot—was a significant, material change from his prior opinions. Neither Plaintiff 10 nor Lauck can realistically argue otherwise. Lauck’s opinion that Krause was shot “inside 11 his own residence” is foundational to Plaintiff’s argument the shooting was objectively 12 unreasonable. (Doc. 121 at 1 (emphasis in original).) Indeed, Plaintiff mentions the fact 13 sixteen times8 in his motion for partial summary judgment. (See generally id.) 2. Lauck’s New Opinions Are Not a Proper Supplementation 14 Under Rule 26(e) 15 Plaintiff counters that he has a “duty to supplement” under Rule 26. (Doc. 138 at 6.) 16 But Rule 26(e) creates a duty, not a right. Luke v. Family Care and Urgent Medical Clinics, 17 323 Fed.Appx. 496, 500 (9th Cir. 2009) (emphasis added). Supplementation means 18 “correcting inaccuracies[] or filling the interstices of an incomplete report based on 19 information that was not available at the time of the initial disclosure.” Keener v. United 20 States, 181 F.R.D. 639, 640 (D. Mont. 1998); see also Plumley v. Mockett, 836 F.Supp.2d 21 1053, 1062 (C.D. Cal. 2010) (“[S]upplementary disclosures do not permit a party to 22 introduce new opinions after the disclosure deadline under the guise of a ‘supplement.’”) 23 Lauck’s opinions may have been new, but they were not based on new information and 24 cannot properly be considered supplemental. See Luke, 323 Fed.Appx. at 500 (“Rule 26(e) 25 does not create a loophole through which a party who submits partial expert witness 26 27 7 Defendants incorrectly place the deadline one month later, on July 14, 2019. 8 This tally does not include instances where Plaintiff emphasizes Krause’s mother was 28 also inside the trailer to emphasize the allegedly reckless nature of the shooting. (See Doc. 121.) 1 disclosures . . . can add to them to her advantage after the court’s deadline for doing so has 2 passed.”). Lauck based his newly-shared opinions on evidence that had been in his 3 possession for months—the same evidence cited by his original report.9 Thus, the Court 4 cannot characterize Lauck’s late-disclosed opinions as supplemental. See Plumley, 836 5 F.Supp.2d at 1062 (“A supplemental expert report that states additional opinions or seeks 6 to strengthen or deepen opinions expressed in the original expert report is beyond the scope 7 of proper supplementation and subject to exclusion under Rule 37(c).”) (quoting Cohlmia 8 v. Arden Health Servs., LLC, 254 F.R.D. 426, 433 (N.D. Okla. 2008)). 3. Plaintiff Does Not Show the Rule 26(a) Disclosure 9 Violation is Either Substantially Justified or Harmless 10 As if anticipating an unfavorable ruling on this point, Plaintiff pivots to alternative, 11 and ultimately futile, arguments. First, Plaintiff argues the record supports Lauck’s 12 conclusion. (Doc. 138 at 4-6.) This argument sidesteps timeliness entirely. Plaintiff is of 13 course welcome to present arguments he believes are justified by the record, but not 14 through an untimely expert report. 15 Second, Plaintiff paints Defendants’ concerns “as nothing but a technical or 16 academic exercise to seek to exclude testimony.” (Doc. 138 at 4.) Not so. It is the disclosing 17 party’s burden to provide timely, accurate, and sufficient Rule 26(a)(2)(B) disclosures. 18 Plaintiff missed the deadline for initial expert reports by four months. In such instances, 19 Rule 37(c)(1) acts as a “self-executing,” “automatic” sanction to “provide[] a strong 20 inducement for disclosure of material . . .” Yeti, 259 F.3d at 1106 (citing Fed. R. Civ. P. 21 37, Advisory Committee’s Note (1993)). 22 Third, and lastly, Plaintiff sees no prejudice in the tardy disclosure and emphasizes 23 that Defendants do not claim prejudice.10 (Doc. 138 at 7.) Presumably, Plaintiff references 24 prejudice with Rule 37(c)(1) in mind. See Lanard Toys Ltd. v. Novelty, Inc., 375 Fed.Appx. 25 705, 713 (9th Cir. 2010) (identifying “the ability of [a] party to cure the prejudice” as one 26 9 Lauck himself attested to this, admitting he formed his opinions during deposition 27 preparation after reviewing the evidence on which he based his original, timely report. (See Doc. 138 at 4-5 (describing how Lauck’s deposition preparation “made him go back and 28 review everything again”, resulting in new opinions) 10 Defendants do argue they are prejudiced, albeit in their reply. (See Doc. 140 at 3.) 1 factor amongst others that courts consider in enforcing Rule 37(c)(1)). Rule 37(c) “gives 2 teeth” to Rule 26 “by forbidding the use at trial of any information required to be disclosed 3 by Rule 26(a) that is not properly disclosed,” Torres v. City of Los Angeles, 548 F.3d 1197, 4 1212-13 (9th Cir. 2008),11 “unless the failure was substantially justified or is harmless.” 5 Fed. R. Civ. P. 37(c)(1). But the burden to show the failure was justified or harmless is 6 Plaintiff’s. See Torres, 548 F.3d at 1213; see also see also Yeti by Molly, Ltd. v. Deckers 7 Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (“Implicit in Rule 37(c)(1) is that the 8 burden is on the party facing sanctions to prove harmlessness.”); Plumley, 836 F.Supp.2d 9 at 1064 (“The party facing the sanction carries the burden of demonstrating that the failure 10 to comply with rules concerning expert testimony is substantially justified or harmless.”). 11 The Court finds the harm to Defendants readily apparent and justification for 12 Plaintiff’s untimeliness wanting. To determine whether a violation is substantially justified 13 or harmless, Courts consider the following factors, among others: (1) prejudice or surprise 14 to the party against whom the evidence is offered; (2) the ability of that party to cure the 15 prejudice; (3) the likelihood of disruption at trial; and (4) bad faith or willfulness involved 16 in not timely disclosing the evidence. Carrillo v. B&J Andrews Ent., LLC, No. 2:11-cv- 17 01450-RCJ-CWH, 2013 WL 420401, at *3 (D. Nev. Jan. 13, 2013); see also Lanard Toys 18 Ltd. v. Novelty, Inc., 375 Fed.Appx. 705, 713 (9th Cir. 2010).12 That Defendants were 19 prejudiced and surprised in this instance is self-evident. In the middle of a deposition 20 months after the scheduled deadline for both initial and rebuttal reports, Lauck, for the first 21 11 In relevant part, Rule 37(c)(1) provides: 22 “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness 23 or supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” 24 Fed. R. Civ. P. 37(c)(1). 25 12 In the Ninth Circuit, when imposing a sanction that amounts to a dismissal of a claim pursuant to Rule 37(c), the district court must conduct a harmlessness inquiry required and 26 consider the availability of lesser sanctions. R & R Sails, Inc. v. Insurance Co. of Penn., 673 F.3d 1240, 1247-48 (9th Cir. 2012). Neither party argues a lesser sanction is possible 27 or appropriate and the Court finds none available with trial only months away. Further, as Lauck’s untimely opinions are based on bullet trajectory analysis which he is unqualified 28 to conduct, exclusion is warranted on independent grounds, rendering a lesser sanction for untimeliness futile. 1 time, shared fresh conclusions that differed materially from his prior opinions. This 2 deprived Defendants the opportunity to rebut Lauck’s new opinions with expert testimony 3 of their own, meaningfully depose Lauck on the new opinions, or suitably prepare for 4 Lauck’s examination. With this context, Plaintiff’s claim that despite being surprised with 5 new, materially significant expert opinions in the course of deposing, Defendants “had an 6 opportunity to fully explore the updated opinions during the deposition” is a bit hard to 7 swallow. (Doc. 138 at 6.) What’s more, Defendants had little opportunity to cure that 8 prejudice. Lauck’s surprise testimony came four days prior to closure of all discovery and 9 months after Plaintiff’s initial expert disclosure deadline. (See Doc. 37.) An argument that 10 the untimeliness of Lauck’s opinions is substantially justified is even less supportable. As 11 discussed, Plaintiff (and Lauck, in deposition) admit the newly formed opinions were based 12 on review of evidence already in-hand—a failure of diligence rather than some factor 13 outside Plaintiff’s control. Aside from a bare conclusion that excluding Lauck’s opinions 14 would be unjust, Plaintiff offers no explanation for why the untimeliness of those opinions 15 is substantially justified. 16 v. Summary of Exclusions and Limitations 17 To summarize, Luack’s opinions are subject to the following limitations and 18 exclusions: The Court will not consider Lauck’s opinion that Krause was shot while inside 19 his residence. Not only was this opinion untimely and excludable under Rule 37(c), Lauck 20 is unqualified to make it. Lauck is no expert in ballistics and is unqualified to conduct bullet 21 trajectory analysis. To the extent his opinions rely on that analysis, his conclusions 22 regarding the physical locations and orientations of Krause and Selmanson are excluded. 23 Further, the Court will exclude statements of legal conclusion identified in this Order. That 24 said, in some arenas, Lauck’s opinions are perfectly acceptable and are likely to assist the 25 finder of fact. The Court finds Lauck generally qualified as a police practices and use of 26 force expert. Insofar as his opinions draw from such experience, they are allowable. 27 Specifically, Lauck’s testimony regarding Defendants’ alleged violation of MCSO policies 28 and the appropriateness of their conduct in light of both those policies and accepted police 1 practices is permissible. 2 b. Defense Animation, Drawings, and Expert’s Opinion (Doc. 123) 3 Plaintiff moves to preclude Defendants’ expert James Tavernetti from testifying at 4 trial and to exclude his animations and drawings from consideration. (Mot. 1 at 1.) Chiefly 5 a challenge to the accuracy of Tavernetti’s animations, Plaintiff points to specific alleged 6 inaccuracies as misleading. The Court addresses each below. 7 i. Tavernetti’s Qualifications 8 As a preliminary matter, Plaintiff does not dispute Tavernetti’s qualifications. (See 9 Resp. 1 at 2.) Plaintiff takes issue with what Tavernetti’s animations depict, not his 10 expertise to create them. The Court agrees with Defendants that Tavernetti’s CV and expert 11 report, (Doc. 123-1 at 10-13), establish his qualifications to generate the depictions at issue. 12 See Fed. R. Evid. 702(a). Computer animations, like those here, are allowed in the Ninth 13 Circuit. See Friend v. Time Mfg. Co., No. 03-343-TUC-CKJ, 2006 WL 2135807, at *20 14 (D. Ariz. July 28, 2006) (citing Byrd v. Guess, 137 F.3d 1126 (9th Cir. 1998)). “At a 15 minimum, the animation’s proponent must show the computer simulation fairly and 16 accurately depicts what it represents, whether the computer expert who prepared it or some 17 other witness who is qualified to so testify, and the opposing party must be afforded an 18 opportunity for cross-examination.” Id. The Federal Rules of Evidence also endorse the 19 use of animations. See Federal Rules of Evidence Manual § 403.02 (2018) (“In order to 20 explain or prove how a disputed event occurred, a party may find it helpful to demonstrate 21 the event in Court, or to provide a videotaped or even a computerized recreation of the 22 event.”). The standard for admission of computer animations is the same as for 23 demonstrative evidence. See Friend, 2006 WL 2135807, at *20 (“The use of computer 24 animations is allowed when it satisfies the usual foundational requirements for 25 demonstrative evidence.”). 26 Furthermore, the animations are relevant and draw directly from the factual record 27 to recreate the scene of the shooting. Each specific depiction cites to record evidence to 28 help the finder of fact understand the scene in the moments before, during, and immediately 1 after the incident. See Fed. R. Evid. 702; Mukhtar, 299 F.3d at 1066 n.7 (“Encompassed in 2 the determination of whether an expert testimony is relevant is whether it is helpful to the 3 jury, which is the ‘central concern’ of Rule 702.”). For example, Tavernetti relied on 4 autopsy measurements and photographs to locate the entrance and exit wounds, based the 5 physical locations of Selmanson and Krause on deposition testimony, and provides detailed 6 foundation for each animation by citing the record evidence relied upon. (See e.g., Doc. 7 123-1 at 4, (identifying the specific autopsy measurements used to accurately depict wound 8 locations and physical characteristics), 5-9 (specifically citing deposition testimony by 9 page and line references that supports the depictions from Selmanson’s first knock on 10 Krause’s door).) Plaintiff does not challenge Tavernetti’s methodology, but instead argues 11 the end product misleads. To the extent the parties contest the accuracy of the underlying 12 data that supports Tavernetti’s depictions, such weaknesses can be addressed through 13 cross-examination and other expert testimony. But, as illustrative animations—rather than 14 exact recreations—of the incident, the Court finds no sound basis to exclude the 15 animations. 16 ii. Plaintiff’s Specific Arguments 17 Although the animations are both relevant and derived from reliable methodology, 18 Plaintiff argues the depictions mislead in the following ways: 19 1. Depiction of the Bullet Trajectory 20 Plaintiff first argues Tavernetti’s animation are misleading because they show the 21 bullet passing through Krause’s right thigh at a downward angle, contradicting the medical 22 examiner’s testimony and autopsy report that the “bullet traveled upward through 23 [Krause’s] right thigh.” (Mot. 1 at 6 (quoting Resp. 1, Ex. 1, “Mosely Depo.” at 14:) This 24 argument focuses on the deviating path of one of Selmanson’s bullets. Setting aside the 25 sequence in which the shots were fired, one of Selmanson’s bullets travelled from the barrel 26 of his service pistol on a slightly downward trajectory, entered Krause’s penis and exited 27 through his scrotum.13 The bullet then entered Krause’s right thigh, “but[,] then passing 28 13 While the bullet, in the context of its impact with Krause’s privates, is at times described as “traveling upward,” Dr. Mosely clarified such comments were an “artifact of 1 through his thigh, it went upward.” (Mosely Depo. at 58:9-10.) The bullet thus exited 2 Krause’s right thigh approximately ¼ inch higher than where it entered. (See Doc. 122-1, 3 Ex. K, “Krause Autopsy” at 80, (measuring the entrance wound on the “anteromedial 4 aspect of [the] proximal portion of the right thigh . . . is centered 38-1/2 inches below the 5 top of the head” and finding the bullet “exits the body on the lateral aspect of the upper 6 portion of the right thigh . . . situated 38-1/4 inches below the top of the head”.). 7 Recognizing that “nobody gets shot in the anatomic position,” Dr. Mosely testified that a 8 bullet’s pathway can change from in this manner depending on how the physical position 9 of the body and independent movement of limbs at the time of bullet impact. (See e.g., 10 Mosely Depo. at 59:1-22, 60:2-13.) As Defendants point out, this testimony, and the 11 downward angle of Selmanson’s shot, is also supported by Selmanson’s account. 12 Selmanson describes raising his weapon from the “low ready” to engage Krause. With 13 service weapon initially “canted down at him,” Selmanson testified that “started firing to 14 come up.” (Resp. 2, Ex. 2 at 81:20-25, 92:13, 24, 19-22; see also Mot. 1 at 7-8.) 15 Plaintiff points to nothing to rebut testimony that the bullet, once fired from 16 Selmanson’s weapon, traveled slightly downwards. Admittedly, either Tavernetti’s 17 depiction does not show the slight upward angle at which the bullet eventually traveled 18 through Krause’s right thigh or the difference is nonobvious. (See Krause Autopsy at 80.) 19 That said, the Court finds that the downward path of the bullet’s trajectory in Tavernetti’s 20 depiction is generally supported by the evidence. To the extent that it does not obviously 21 depict the upward angle at which the bullet passed through Krause’s right thigh, purported 22 errors or inaccuracy can be sufficiently addressed through jury instruction and cross- 23 examination. See United States v. Walema, 194 F.3d 1319 (9th Cir. 1999) (“[A]dmissibility 24 of demonstrative evidence in particular is ‘largely within the discretion of the trial judge.’”) 25 (quoting United States v. Hernandez, 109 F.3d 1450, 1452 (9th Cir. 1997)). 26 2. Decedent’s Physical Location 27 Plaintiff’s next argument—that the animations mislead by showing Krause outside 28 terminology” reflecting the orientation of Krause’s penis at the time of impact. (See Mosely Depo. at 56:21-58:10 (“In the anatomic position, [the bullet] is going downward.”).) 1 the residence when shot—turns on disputed interpretation of statements made by Schiller 2 to Detective Slack of the Lake Havasu City Police Department shortly after the incident. 3 (See Doc. 122-1 at 110.) As a threshold matter, Defendants correctly observe that 4 Selmanson directly testified that Krause had stepped through the doorway and was outside 5 the residence at the time of the shooting. (Resp. 1, Ex. 2, “Selmanson Dep.” at 59:2-60:10, 6 61:16-63:21, 72:14-24, 74:25-75:4.) As for Schiller, both his deposition testimony and the 7 interview transcript cited by Plaintiff, affirm he “never saw Mr. Krause from [his] angle 8 until he was on the ground.” (Resp. 1, Ex. 3, “Schiller Dep.” at 68:1-3.) The deposition 9 testimony of both deputies provides sufficient foundation for the animations’ admission 10 for demonstrative purposes. Insofar as Plaintiff wishes to challenge the consistency or 11 reliability of the underlying facts supporting the depiction, such challenges may be 12 addressed through cross-examination and other expert testimony. 13 3. Wound Sequence 14 Tavernetti’s animations show Selmanson’s shots in a specific sequence—the first 15 bullet passing through Krause’s right thigh, the second through Krause’s abdomen, and the 16 third missing Krause altogether. Plaintiff’s bald assertion that no evidence exists to support 17 the shots were fired in that order is incorrect. (See Resp. 1, Selmanson Dep. at 81:20-25, 18 82:13, 14, 19-22.) The firing sequence is based in admissible testimony which Plaintiff 19 may later challenge. 20 4. Decedent’s Forward Motion 21 Tavernetti’s depiction of Plaintiff’s movement as northward towards Selmanson is 22 similarly supported by the Selmanson’s deposition testimony. (Selmanson Dep. at 74:25- 23 75:4.) Schiller’s recollection that Krause was “east of the doorway” does not undermine 24 animation such that it is misleadingly illustrative of Selmanson’s account. 25 5. Depiction of Decedent’s Right Hand and Trigger Finger 26 The animations show Krause’s right hand on the outside aspect of the shotgun and, 27 on closer examination, Krause’s right finger in the trigger guard. This aspect of the 28 depiction is unsupported by evidence in the record. (See Selmanson Dep. At 60:20-25) 1 || Selmanson attested that Krause’s hand was not observable from his perspective. (/d.) || However, as Defendants suggest, this mistake is not material to Selmanson’s justification || for use of force. Cross-examination at trial provides opportunity for the parties’ arguments 4|| over whether the animations’ depiction of Krause’s hand and finger are reasonable 5|| inferences from the record. (See Resp. | at 9.) 6 6. Respective Locations of Decedent and Selmanson 7 Plaintiff views the physical locations of Krause and Selmanson as an additional 8 || discrepancy requiring exclusion of Tavernetti’s animations. The Court disagrees. Any || minor divergence between the physical locations found in the animations and the locations marked by Selmanson during deposition are largely addressed by Selmanson’s admission 11 || that the locations were not “exact” and based on his memory of the incident. (Selmanson || Dep. At 34:1-9.) Further, Plaintiff's conclusory challenge ignores Tavernetti’s explanation 13 || regarding how the locations were ascertained. (See Doc. 123-1 at 3-6.) 14 7. The Missing Floor Mat 15 Lastly, Plaintiffs threadbare claim that the absence of a floormat animation renders the animations unreliable fails. The Court can see no argument, nor does Plaintiff offer one, as to why the “floor mat is instrumental to determining the position of Decedent.” (Mot. 1 at 15.) 19 IV. CONCLUSION 20 Accordingly, 21 IT IS ORDERED DENYING Plaintiff's Daubert Motion to Preclude Defense Animation, Drawings & Expert’s Opinions, (Doc. 123). 23 IT IS FURTHER ORDERED GRANTING, in part, Defendants Daubert Motion 24|| Re: David M. Lauck, (Doc. 129), and excluding Plaintiff's expert testimony in a manner 25 || consistent with this Order. 26 Dated this 7th day of May, 2020. 27 28 — FL . United States District Judge