Opinion
Civil Action No. 98-2408-CM.
July 13, 2000.
Henry, O. Boaten, Topeka Kansas, for plaintiffs.
James S. Pigg and David R. Cooper, Fisher, Patterson, Sayler Smith, Topeka, KS, for Dave Thomas, John Does, City of Topeka Law Enforcement Personnel, and City of Topeka, Kansas, defendants.
Deanne Watts Hay and Stanley R. Parker, Parker Hay, LLP, Topeka, KS, for Randy Listrom, defendant.
Ann L. Hoover, Clutter, Hinkel Aadalen, LLP, Topeka, KS, for Robert W. Youse, Troy Willard, Daniel Breci, Jason Cooper, Kurt Ritcher, Russell Klumpp, Dennis Bane, and Dean Forster, defendants.
MEMORANDUM AND ORDER
This matter is before the court on the defendants' motion to determine admissibility of expert opinion. (Doc. 117). David Fuentes was fatally injured during the execution of a search warrant at his residence. While the police were executing the warrant, Mr. Fuentes got a gun and ran down a hallway toward the officers. Mr. Fuentes raised the gun and pointed it toward the defendant, Corporal Dave Thomas, who responded by shooting three times. Defendants point to five specific opinions of plaintiffs' expert, Dr. Mathias I. Okoye, which defendants claim the court should not allow: (1 and 3) that the decedent's hands were raised (sideways) (sic) upward in a probable "surrender" position and not pointing towards Cpl. Thomas when Mr. Fuentes was shot in the forearms and in the back; (2) that the manner of death was homicide (4) that David Fuentes's mental function or judgment was not impaired by the level of cocaine and alcohol in his system at the time of his death; and, (5) that David Fuentes was holding a gun in his right hand at the time he was shot and dropped it when his right forearm was struck by the officer's bullet.
I. Position of Mr. Fuentes's Hands When He Was Shot
Defendants make extensive, vigorous arguments that Dr. Okoye should not be allowed to testify of his opinion on the position of Mr. Fuentes's hands when he was shot. Essentially, defendants argue that the opinions are inadmissible because plaintiffs failed to supplement the expert's report pursuant to Rule 26(e), and further inadmissible as unreliable because Dr. Okoye's methodology is insufficient.
The court considers Dr. Okoye's characterization of the position of Mr. Fuentes's hands as a "surrender" position later in this opinion.
A. Rule 37 Sanctions Pursuant to Rule 26(e)(1)
The expert report indicates that, in the preparation of his report, Dr. Okoye visited and inspected the death scene accompanied by an investigator and reviewed the autopsy report, autopsy photographs, death scene photographs, autopsy tissue sections, and diagrams and floor plans of the death scene. The report indicates that the bases for Dr. Okoye's opinions include: The location of the entrance and exit wounds in the decedent's forearms and back; the trajectories of the gunshot wounds; the coroner's investigation and Dr. Okoye's evaluation of the death scene, including "but not limited to, the blood splatter patterns." (Defs.' Mot., Ex. 2 at 4-5).
Despite the fact that the basis and reasons for an opinion are required to be in the expert's report, see Fed.R.Civ.P. 26(a)(2)(B), Dr. Okoye's report does not give reasons for his opinions or any way to determine how or why the particular facts or bases lead to the opinions. The defendants argue that, as a sanction for these omissions, and because the plaintiffs have failed to supplement the report, the plaintiffs should be precluded from asserting these opinions at trial.
The duty to supplement under Rule 26(e) arises only "if the party learns that in some material respect the information disclosed is incomplete or incorrect." Fed.R.Civ.P. 26(e)(1). However, defendants do not show in what way the report or testimony of the expert is incorrect. In essence, they argue, correctly, that the information is incomplete because it lacks the expert's reasons. But, prior to this motion, the defendants never objected to the report or asserted that it was incomplete. Defendants have not shown that the plaintiffs were aware that the report was incomplete, therefore, sanctions are not appropriate. That determination, however, does not mean that the opinions are reliable and, therefore, admissible.
B. Reliability
Federal Rule of Evidence 702 allows expert testimony, by opinion or otherwise, if the witness is qualified as an expert and his specialized knowledge "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. Expert testimony is admissible only if it is both relevant and reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). The judge has a "gatekeeping" obligation to determine the admissibility of expert testimony. See id. Reliability determination must be tied to the facts of the particular case. See id. at 150. The court may use the Daubert factors: (1) has the theory or technique been tested (or can it be); (2) has it been subject to peer review and publication; (3) is there a known or potential high rate of error and are there standards controlling the technique's operation, and; (4) is the theory or technique generally accepted within the relevant community. See id. at 149. In determining whether the expert's specialized knowledge will assist the jurors, the court will "`scrutinize' whether the 'principles and methods' employed by an expert `have been properly applied to the facts of the case.'" Id. at 157 (quoting Advisory Committee's Note on Proposed Fed. Rule Evid. 702, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and Evidence: Request for Comment 126 (1998)). "[N]othing . . . requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Id. (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
Reliability analysis applies to all aspects of the expert's testimony, including the facts underlying the opinion, the methodology, and the link between the facts and the conclusion drawn.See Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999). Consequently, the court must make a practical, flexible analysis of the reliability of the testimony considering relevant factors in the circumstances of the case. See, e.g., Kumho Tire, 526 U.S. at 149-52;Heller, 167 F.3d at 155. The court has discretion how to approach the task of making reliability findings. See Kumho Tire, 526 U.S. at 152;United States v. Velarde, No. 99-2297, 2000 WL 710494, at *5 (10th Cir. June 2, 2000); Goebel v. Denver and Rio Grande W. R.R., No. 99-1143, 2000 WL 757605, at *3 (10th Cir. June 12, 2000). It is essential, however, to make a determination on the record sufficient to allow a reviewing court to determine whether the trial court properly applied the relevant law. See Velarde, 2000 WL 710494, at *6; Goebel, 2000 WL 757605, at *4.
Defendants argue that Dr. Okoye's methodology is not reliable. Neither defendants nor plaintiffs, however, attempt to specify what methodology is used by Dr. Okoye, nor do the defendants specify in what manner that methodology is lacking. It appears the defendants are arguing that Dr. Okoye has failed to state, specifically, the facts which constitute the bases for his opinions and has failed to explain how the facts or bases lead to those opinions. Defendants point out that, at his deposition, Dr. Okoye asserted an inability to give reasons or "methodology" for his conclusions because he had not considered any materials underlying his opinions (other than his report) in the two years since the preparation of his report. Further, he brought none of the materials to his deposition.
The court considered the 107 pages of deposition testimony furnished with defendants' motion. Dr. Okoye at times asserted an inability to remember the facts upon which his opinion was based and at other times appeared unable or unwilling to specify which facts led to which conclusion or how a group of facts worked together to lead to a particular opinion.
The court agrees that Dr. Okoye's deposition testimony does not provide the information lacking in the report. On this state of affairs, Dr. Okoye's opinions are related to the facts of the case only by his personal assertion of expertise. The court cannot tell from the record the reliability of the opinion that Mr. Fuentes's hands were raised when he was shot. Therefore the court orders aDaubert hearing on that issue for 2:30 p.m. July 14, 2000. The court will make its ruling on the admissibility of Dr. Okoye's opinion after hearing the testimony and the parties' arguments. At the hearing, the plaintiff must; give the reasons for Dr. Okoye's opinion, show a connection between the facts and the opinion, and explain how the facts and bases lead to the opinion stated.
II. Characterizations as "Surrender" Position and "Homicide"
An expert may offer an opinion even if it "embraces an ultimate issue to be determined by the trier of fact." Fed.R.Evid. 704. However, an expert may not simply tell the jury what result it should reach. See United States v. Simpson, 7 F.3d 186, 188 (10th Cir. 1993). Often, such expert testimony is excluded on the grounds of stating a legal conclusion, usurping the function of the jury in deciding facts, or interfering with the judge in instructing on the law. All of these rationale define evidence which is not helpful to the jury. See id. at 188-89. Such expert testimony does not assist the jury to understand the evidence or determine a fact in issue. See Fed.R.Evid. 702.
A. "Surrender"
This court has found that defendant Thomas's decision to use deadly force was objectively reasonable in the circumstances. See Estate of Fuentes v. Dave Thomas, Civ. A. No. 98-2408-CM, Mem. and Order at 16-17, (D. Kan. June 27, 2000) (Doc. 126). Therefore, the issue for the jury is whether the amount of force used was excessive. Whatever the position of the decedent's hands before he was shot, the jury must determine whether that position indicated that the threat to the officers was abated or abating and whether Cpl. Thomas should have ceased his use of deadly force sooner than he did as a result of that indication. Stating that the decedent's hands were in a "surrender" position merely tells the jury how to decide the issue.
Furthermore, an expert's opinion will not assist the jury to decide a matter of common knowledge, education and experience. See United States v. Brown, 540 F.2d 1048, 1054 (10th Cir. 1976). Plaintiffs do not assert any specialized knowledge of a forensic pathologist in general or Dr. Okoye in particular, other than common knowledge or experience, which would provide insight into whether a particular position is a "surrender" position or what positions constitute the possible range of "surrender" positions. Such facts are within the common knowledge or experience of lay jurors. Even if Dr. Okoye is allowed to testify as to the position of the decedent's hands at the time he was shot, he will not be permitted to testify that the position described is a "surrender" position.
B. "Homicide"
Dr. Okoye opined that the decedent's manner of death was homicide. Defendants argue that such an opinion is a conclusion of law which invades the province of the court in instructing the jury. Plaintiffs counter that "homicide" is a technical term in forensic pathology meaning an intentional death at the hand of another individual, and should not be confused with the legal term "homicide." In their reply, defendants correctly note that Dr. Okoye used the term in a statement in which he opined that the decedent was shot while his hands were raised in a "surrender" position. Undoubtedly, that use implies homicide in a legal sense. It is undisputed that Cpl. Thomas fired the shots that killed Mr. Fuentes. Use of the term "homicide," will not assist the jury to decide that undisputed fact. Furthermore, use of the term may tend to prejudice the defendants and confuse the jury because the jury will likely consider the term in its legal sense. Use of the term "homicide" to describe the manner of decedent's death is irrelevant to any genuine issue in the case and will not assist the jury.
The court finds that the plaintiffs' expert's characterizations will not assist the trier of fact to understand the evidence or determine a fact in issue. Therefore, plaintiffs' expert will not be allowed to characterize Mr. Fuentes's hands as in a "surrender" position at the time he was shot, nor may he characterize the manner of death as "homicide."
III. Impairment by Cocaine and Alcohol Ingestion
Defendants argue that Dr. Okoye's opinion that "[t]he level of cocaine and ingested alcohol in the system of David Fuentes at the time of his death did not impair his mental function or judgment," is not admissible because Dr. Okoye refused to assert that opinion at his deposition. In response, the plaintiffs assert they have no objection to the motion because the opinion at issue is not worded identically to the opinion stated in Dr. Okoye's report.
The federal rules of civil procedure require that a party desiring to use an expert provide the opposing party with a written report of any expert specially retained by that party. See Fed.R.Civ.P. 26(a)(2)(B). "The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor." Id. After the report has been received, the opposing party may depose any expert witness which will testify at trial. See Fed.R.Civ.P. 26(b)(4)(A). Because effective cross-examination and rebuttal of an expert witness requires advance preparation, "[a] party can require one who intends to use the expert to state the substance of the testimony that the expert is expected to give." See id., Advisory Comm. Notes. 1970.
Dr. Okoye's report states the opinion: "THE DECEDENT, REY DAVID FUENTES PERALTA, INGESTED ETHANOL (ALCOHOL) SOMETIME PRIOR TO HIS DEATH, AND ALSO HAS (sic) COCAINE AND COCAINE METABOLITE(S) IN HIS SYSTEM PRIOR TO HIS DEATH. THE COCAINE LEVELS IN THE DECENDENT'S (sic) SYSTEM ARE VERY MUCH BELOW THE INTOXICATING LEVEL FOR HUMANS." (Defs. Mot., Ex. 2 at 5). As one of the bases for the opinion, the report indicates "the presence of ethanol (alcohol) in the blood and vitreous fluid [of the decedent] . . . being at . . . intoxicating levels in humans although [the decedent] appeared to have control of his bodily and mental functions." Id. Dr. Okoye testified that he did not have medical evidence to support a statement that Mr. Fuentes was not impaired by reason of alcohol or cocaine ingestion, but that he had medical evidence to support that Mr. Fuentes was not intoxicated. See Okoye Depos., p. 97, ll. 8-12 (emphasis added).
The report does not explain or indicate the facts from which Dr. Okoye infers that the decedent appeared to have control of his bodily and mental functions.
Furthermore, Dr. Okoye's testimony that he possessed medical evidence to support an opinion that Mr. Fuentes was not intoxicated does not agree with the statement in his report that the presence of alcohol in Mr. Fuentes's body fluids was at intoxicating levels. Finally, plaintiffs do not object to defendants' motion in this regard. Consequently, Dr. Okoye will not be allowed to testify at trial that Mr. Fuentes was not impaired by reason of cocaine or alcohol ingestion. Neither will he be allowed to testify that Mr. Fuentes was not intoxicated from the ingestion of alcohol. Dr. Okoye may, however, state opinion number eight from his report, including the opinion that the cocaine levels in the decedent's system were below the intoxicating levels for humans.
IV. Location of Mr. Fuentes's Gun and Immediacy of its Release
Defendants argue that Dr. Okoye should not be allowed to opine that Mr. Fuentes carried his gun in his right hand when he was shot and that he dropped it immediately when his forearm was struck by the bullet. Defendants argue this is so because Dr. Okoye merely assumed the gun was in the decedent's right hand, and also because if the gun were in the decedent's left hand Dr. Okoye could not opine that it would be dropped immediately after the left forearm was struck. Plaintiffs respond that Dr. Okoye did not state an opinion that the gun was in either hand, rather, he hypothesized about the immediacy with which it would have been dropped from either hand based upon the injuries received when the bullet struck that forearm.
An expert may not speculate in his opinions. See Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir. 2000). Therefore, Dr. Okoye will not be allowed to testify, based upon an assumption, that Mr. Fuentes's gun was in his right hand when he was shot. However, that does not end the inquiry. Experts may testify hypothetically at trial from facts presented by counsel or facts in evidence before the court. See Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 648 (10th Cir. 1991) (citing bases for expert opinion testimony under Fed.R.Evid. 703); and Fed.R.Evid. 104(b) (evidence whose relevance is conditioned on a fact may be admitted after presentation of evidence sufficient to support a finding of the fact).
Defendants admit that if the gun were in Mr. Fuentes's right hand the doctor would have adequate basis to assert that the gun was dropped immediately after the bullet struck the right forearm. They argue that the doctor could not give an opinion concerning how fast the gun would have been dropped if held in the left hand. Dr. Okoye's testimony does not support that argument. The doctor testified that it was "a high possibility" that a person receiving the wound in the decedent's left forearm would lose a grip on the gun, that he could not be certain that the person would lose his grip, and that he couldn't tell how long it would take a person to actually drop the gun after receiving the injury sustained in either forearm. (Okoye Depos., p. 79, l. 25 — p. 83, l. 12)
The testimony is unclear whether the statements relating to how fast the gun would have dropped refer to both hands or just to the left hand.
Certainty is not required in an expert's opinion. See Werth, 950 F.2d at 651; Ortho v. Emerson Elec. Co., 980 F.2d 632, 637 (10th Cir. 1992). Any weakness in the certainty of the expert's opinion goes to its weight, not its admissibility. See Ortho, 980 F.2d at 637 (quoting Jones v. Otis Elevator Co., 861 F.2d 655, 663 (11th Cir. 1988)). Cases cited by defendants for the proposition that uncertain terms in the expert's opinion are universally rejected concern the sufficiency of evidence, not the admissibility of the expert opinion. In each case cited, the court determined that evidence was insufficient to support the outcome desired by the proponent. However, admissibility of the expert opinion testimony was not at issue. See Voelkel v. General Motors Corp., No. 94-3073, 1994 WL 708220, at *2 (10th Cir. Dec. 21, 1994) ("Any causal connection is too speculative, particularly in view of the plaintiff's expert's opinion that he could not conclude that the buckle caused . . . plaintiff's injuries." (emphasis added)); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1201-04 (6th Cir. 1988); Graham v. Ozark Mountain Sightseeing, Inc., 181 F.3d 924, 926 (8th Cir. 1999); Chaney v. Smithkline Beckman Corp., 764 F.2d 527, 528-29 (8th Cir. 1985).
Therefore, pursuant to Fed.R.Evid. 104(b), if evidence is presented at trial that Mr. Fuentes carried his gun in one hand or the other, Dr. Okoye may be allowed to express his opinion, based upon the injuries to the decedent, whether Mr. Fuentes would have dropped the gun from that hand and how long he could have maintained his grip. Defendants will have an opportunity to cross-examine the witness as to the certainty with which he asserts his opinion and the medical basis for his opinion.
V. Order
IT IS THEREFORE ORDERED that defendants' motion (Doc. 117) is granted in part and denied in part:
1. A hearing shall be held at 2:30 p.m., 14 July, 2000 in Courtroom 463, Kansas City, Kansas, to determine the reliability of plaintiffs' expert's opinion on the position of Mr. Fuentes's hands when he was shot in the forearms and the back. No further notice of this hearing will be given.
2. Dr. Okoye will not be allowed, in the trial of this matter, to characterize either Mr. Fuentes's hands as in a "surrender" position at the time he was shot, or the manner of death of Mr. Fuentes as "homicide."
3. Dr. Okoye will not be allowed to testify at trial that Mr. Fuentes was not impaired by reason of cocaine or alcohol ingestion. Neither will he be allowed to testify that Mr. Fuentes was not intoxicated from the ingestion of alcohol. Dr. Okoye will be allowed to testify as to opinion number eight as worded in his report dated Dec. 17, 1997.
4. Pursuant to Fed.R.Evid. 104(b), if evidence is presented at trial that Mr. Fuentes carried his gun in one hand or the other, Dr. Okoye may be allowed to express his opinion, based upon the injuries to the decedent, whether Mr. Fuentes would have dropped the gun from that hand and how long Mr. Fuentes could have maintained his grip.