Antoinette Tillman, Individually and as Adminstratrix of the Estate of George Homer Tillman III, brought this action on behalf of George Homer Tillman III against Defendants alleging excessive deadly force, as well as corresponding claims under New York state law, all stemming from a fatal police shooting that occurred on April 17, 2016. The Defendants opened fire on Tillman, killing him.
In his expert report, Plaintiff’s expert David Balash criticized several conclusions reached by Kristen Landi, the medical examiner who conducted the autopsy of the decedent, George Tillman. In particular, he disagrees with Landi regarding the source and trajectories of various bullets that struck Tillman.
Defendants have moved to preclude Balash’s expert testimony. On September 23, 2024, Defendants’ motion was granted in part—specifically, Balash was precluded from testifying as to the results of a test live firing exercise he witnessed, from which he attempted to ascertain the position of the firing officers by marking the locations where spent shell casings hit the ground. The Court reserved decision on the core of Balash’s report—his opinions regarding the trajectories of the various bullets that struck Tillman—pending a Daubert hearing.
At the Daubert hearing, Balash testified as to the bases for those opinions. He also opined, for the first time, that officers failed to properly maintain the scene of the shooting surrounding Tillman’s body during their investigation. He described his conclusions as being based on videos disclosed by the Defendants to Plaintiff after discovery had closed, though he explained that those videos likely would not have affected his core conclusions.
Following the hearing, the parties submitted letters supplementing their motion in limine briefing.
Firearms & Ballistics Expert Witness
David Balash has extensive practical experience examining shooting victims. He has worked in the field of forensic ballistics for over fifty years, first at various positions within the Michigan Department of State Police, then as an independent forensic consultant. Over this time, he has “examined hundreds of shooting victims at crime scenes, autopsies, hospitals and funeral homes” and has “used and interpreted X-rays at crime scenes, autopsies, and hospitals.”
Discussion by the Court
Balash objected to Landi’s conclusion that bullet “A” entered Tillman’s skull, “struck the inner table of the skull with associated fractures of the right middle fossa of the base of the skull and changed direction upward and to the left to the right parietal and frontal lobes.” He opined that “bullets do not change directions to travel back along the same or virtually the same path without something extremely forceful causing that movement.” He concluded that, accepting Landi’s autopsy findings as true, “the only force capable of that change of direction would be a solid hard mass preventing the bullet in question from exiting the skull in the first place” and that “Tillman’s head had to have been against the pavement to explain this bullet’s flight path.”
At the Daubert hearing, Balash clarified that he was not opining that Tillman’s head was, in reality, laying against the pavement when bullet “A” was fired—only that that was the only explanation consistent with Landi’s autopsy notes, which he considers flawed.
Qualifications
The Court held that Balash’s years of experience examining shooting victims and X-rays qualifies him as an expert to dispute Landi’s conclusions regarding the trajectories of the bullets fired at Tillman. Defendants did not explain why Balash’s practical experience is insufficient to qualify as specialized knowledge regarding gunshot trajectories. Nor did they explain why a medical degree is required to qualify as an expert in this field.
Reliability
Balash’s testimony at the Daubert hearing has satisfied the Court that he reached his conclusions about how bullets behave within the body via reliable evidence and methods. Balash testified that he based his opinion—that “[b]ullets do not change directions to travel back along the same or virtually the same path” naturally within the body—on his accumulated experience examining hundreds of autopsies of shooting victims involving bullets of various calibers.
Moreover, Balash’s testimony established that his inferences about bullet trajectories from the shape of the entry wounds, debris found on the decedent’s body around the entry wounds, and condition of the recovered bullets were reliably founded on his extensive history investigating shooting victims and crime scenes.
Relevance
With respect to Balash’s opinions articulated in his expert report on the propriety of the post-shooting investigation and evidence collection conducted by the NYPD and Landi, as the Court indicated at the September 23 conference, Balash may testify as to the specific criticisms he expressed in his report and at the Daubert hearing regarding how Landi’s autopsy procedure was conducted, so long as those criticisms inform his other opinions about why Landi’s conclusions regarding the sources and trajectories of the fired bullets are incorrect or suspect. The Court made it very clear that criticisms of the NYPD and Landi that do not bear on these conclusions, in contrast, are not relevant.
Late Disclosure
Finally, Balash’s opinions regarding how officers should have maintained the scene of the shooting for purposes of evidence preservation are precluded by the Court. If the observations in the videos affected Balash’s opinions, he could have supplemented his expert report anytime in the year since the plaintiff received them. The Court held that permitting him to testify as to a brand-new opinion not contained in his report on the eve of trial would run afoul of Federal Rule of Civil Procedure 26(a)(2)(B).
Held
The Court denied Defendants’ motion in limine to preclude Balash’s expert opinions about Landi’s conclusions regarding the trajectories of bullets fired at Tillman. However, the Court precluded Balash from offering opinions about the maintenance of the scene of the shooting that were not contained in his expert report.
Key Takeaway:
Balash was allowed to form his expert opinions via inferences from his extensive practical experience, and his failure to cite scientific studies regarding bullets’ behavior within the body did not render his opinion inadmissible. Balash based his opinion on his accumulated experience examining hundreds of autopsies of shooting victims involving bullets of various calibers.
Case Details:
| Case Caption: | Tillman V. The City Of New York Et. Al |
| Docket Number: | 1:18cv2211 |
| Court: | United States District Court, New York Eastern |
| Order Date: | November 07, 2024 |
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