On May 21, 2022, Defendants Deputies Montana Arceo and Brandon Avalos contacted Mr. Lyric Leeyn Cline at an ARCO gas station in Tacoma, Washington, after observing a vehicle they believed matched one involved in recent criminal incidents.
Cline fled on foot, the deputies pursued him, and a struggle followed during which the deputies used physical force, including strikes, before other officers arrived and Cline was handcuffed and transported for medical evaluation.
Cline brought claims for excessive force against Deputies Arceo and Avalos and for failure to intercede against Deputy Avalos.
Defendants retained Mr. Chris M. Nielsen, a retired SWAT officer and police trainer, to offer opinions on police practices and use-of-force. In general, Nielsen opined that the decision to contact and pursue Cline, the types and levels of force used, and the provision of medical care were consistent with generally accepted police training and Pierce County Sheriff’s Department policies.
Law Enforcement Expert Witness
Chris M. Nielsen has approximately thirty-one thousand hours of training and operational experience in patrol-level operations, tactics, supervisory, instructional, and leadership experience. He retired from active law enforcement in December, 2024.
He has an Associate of Arts degree from Bellevue College, a Bachelor of Arts in psychology from the University of Washington (cum laude, Phi Beta Kappa), a Master of Arts degree in political science from the Maxwell School of Citizenship and Public Affairs at Syracuse University and a Juris Doctor degree from the Syracuse University College of Law (cum laude).
Plaintiff challenged Nielsen’s methodology on the grounds that he relied on a limited factual record, did not review Avalos’s deposition before issuing his report or testifying, did not interview percipient witnesses, and did not supplement his opinions after additional discovery. Plaintiff cited portions of Avalos’s testimony and argued that those statements, together with the absence of certain videos from Nielsen’s review, undermine his conclusions.
However, Nielsen reviewed department policies, training materials, reports, medical records, and video, and applied his law enforcement experience to assess the deputies’ conduct under generally accepted police standards and Pierce County policies. That is an accepted, experience-based methodology for police practices experts under Rule 702.
B. Use of Video Evidence
Plaintiff argued that Nielsen’s testimony will not assist the jury because body-worn camera videos depict the encounter and that his descriptions of the footage risk confusing or misleading the jury.
Defendants did not offer Nielsen as a video analyst. They offered him to explain police training, use-of-force frameworks, pursuit and Taser policies, and how officers are trained to assess flight, resistance, and threat. These subjects concern professional standards and decision-making processes outside typical juror experience and fall within Rule 702(a).
The Court, however, enforced certain limits at trial. Nielsen may not narrate the videos or opine on purely factual questions such as where Cline’s hands were at a given moment or whether he in fact assumed a fighting stance. Jurors can reach those factual conclusions. He may testify about generally accepted police practices, relevant policies and training, how officers are taught to assess risk and select force options, and whether the deputies’ decisions were consistent with those standards, assuming specified facts.
C. Legal Conclusions
Plaintiff contended that Nielsen’s opinions that the deputies’ conduct was “necessary,” “appropriate,” and “consistent with training and policy” effectively stated that the force was objectively reasonable under the Fourth Amendment.
Consistent with these principles, Nielsen may not testify that the deputies’ conduct was or was not objectively reasonable, constitutional, or similarly lawful. He may describe policies, training, and generally accepted police practices and state, in professional terms, whether particular actions were consistent with or departed from those standards, based on stated assumptions.
D. Bias and Litigation History
Plaintiff noted that Nielsen has testified exclusively for Law Enforcement Defendants in use-of-force cases and cites his compensation as evidence of bias and unreliability.
However, the Court held that such matters may be explored on cross-examination and left to the jury in assessing what weight to give his testimony.
Held
The Court denied Plaintiff’s motion to exclude the testimony of Chris M. Nielsen.
Key Takeaway
Bias affects credibility and weight, not admissibility under Rule 702. Basically, Nielsen’s litigation history and compensation do not show that his methodology is unreliable or that his opinions lack a factual foundation.
This suit arises from the death of Plaintiffs Mónica E. Gonzalez-Lopez’s and José L. Rodríguez-Sánchez’s (collectively, “Plaintiffs”) son, Christian José Rodríguez-González (Rodríguez), who was shot and killed during a police chase carried out by Defendants Officer Alberto Robles-Concepción (“Robles”) and Officer Emanual Ramos-Pabón (“Ramos”) on July 15, 2022.
Plaintiffs Monica E. Gonzalez-Lopez and Jose L. Rodriguez-Sanchez (collectively, “Plaintiffs”) filed a motion in limine to preclude the testimony of Janeliz Rodriguez, an expert for Defendants Municipality of San Juan, Mayor Miguel A. Romero-Lugo, Commissioner Juan J. Garcia, Alberto Robles-Concepcion, and Emmanuel Ramos-Pabon.
Forensic Expert Witness
Janeliz Rodriguez Disla possesses a Bachelor’s in Criminal Justice; a private detective certification from a forensic college at which she now teaches; numerous certificates in evidence analysis, evidence handling, forensics, and forensic photography; over fourteen years of work experience, including in analyzing security camera videos; several licenses as a private investigator; and experience in at least three federal court cases involving the forensic analysis of videos and photos.
In the challenged statement, Rodriguez described a “long and dark object” as “consistent with being a long weapon or rifle.” Defendants responded that the objective of Rodriguez’s expert report is analyzing the entire video, that her statement is a narrow and qualified description of what was visible in the image, and that Rodriguez is qualified to identify an object as consistent with a long weapon.
In the case at bar, the Court found that Rodriguez’s description of a “long and dark object” as “consistent with being a long weapon or rifle,” is admissible because Rodriguez is qualified to so characterize the object on account of her qualifications in forensic video analysis and criminal justice and her work experience as a detective and investigator. Moreover, even assuming Rodriguez was not an expert, her testimony regarding the object is unremarkable and perception-based observation, which the case law permits even lay witnesses to offer.
The Court found that Defendants have shown that Rodriguez possesses the qualifications and work experience necessary to analyze the video in question and to make the comparison challenged by Plaintiffs.
Held
The Court denied Plaintiffs’ motion in limine to preclude the testimony of Janeliz Rodriguez.
Key Takeaway
The characterization of a “long and dark object” as “consistent with being a long weapon or rifle” is admissible as a run-of-the-mill observation about the object’s purported visible shape and silhouette. The statement challenged by Plaintiffs does not identify technical specifications such as make, model, operability, or any other such ballistics-based assertions. This sort of ordinary description is rationally based on perception, in line with the strictures of even Fed. R. Evid. 701. Moreover, the fact that the statement includes the qualified phrase “consistent with”–in place of a more definite assertion that the “long and dark object” is certainly a weapon–further militates in favor of admitting it.
For well over a century, the Commonwealth of Virginia has disobeyed a federal law designed to protect the right of former enslaved people to vote. When the United States started to readmit the rebellious slave states after the Civil War, Congress feared that the former Confederate powers would invent new crimes with which they could disenfranchise Black Americans. To help ensure the right to vote across the Commonwealth, Congress passed the Virginia Readmission Act of 1870. That Act prevents Virginia from changing its constitution to deprive any citizen of the right to vote, “except as a punishment for such crimes as are now felonies at common law.”
Several times, Virginia has rewritten its constitution contrary to the statute. Each new version has disenfranchised people for offenses other than felonies at common law, and Virginia now automatically disqualifies all felons from the ballot box.
The Plaintiffs, Tati Abu King and Toni Heath Johnson, have lost their right to vote under this provision. They brought the instant class action to enjoin election officials from enforcing Virginia’s felon disenfranchisement provision.
The Plaintiffs proffered two expert witnesses, Prof. Carissa Hessick and Prof. Edward Ayers. The Defendants moved to exclude both.
Law And Legal Expert Witness
Carissa Byrne Hessick received her undergraduate degree from Columbia University in 1999 and her law degree from Yale Law School in 2002. She has been researching and teaching criminal law since 2005. Currently, she is the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law.
Prior to joining the faculty at the University of North Carolina, she served as a Professor of Law at the University of Utah’s S.J. Quinney College of Law, a Professor of Law at Arizona State University’s Sandra Day O’Connor College of Law, and a Climenko Fellow and Lecturer on Law at Harvard Law School. From January through May of 2024, she served as the Fulbright Distinguished Chair in Arts, Humanities, and Social Sciences at the Australian National University.
Edward L. Ayers is a professor at the University of Richmond. He is the Tucker-Boatwright Professor of the Humanities and President Emeritus at the University of Richmond, as well as the executive director of New American History and former co-editor of American Panorama, two digital projects based at the University. Ayers is also a co-host of BackStory: the American History Podcast, a nationally syndicated podcast, made possible through Virginia Humanities.
Hessick analyzed the history of Reconstruction and concluded that the law of the Reconstruction Era distinguished between common law felonies and statutory ones.
From this premise, Hessick offered a definition of “felonies at common law” and compiled a list of such felonies at the time of Reconstruction. Hessick then used comparative techniques to categorize Virginia’s modern felonies as common law felonies or not common law felonies, according to whether today’s crimes descend from Reconstruction Era common law felonies.
First, the Defendants argued that the Court must exclude Hessick’s evidence because she offered an inadmissible legal conclusion by defining the phrase “felonies at common law” in the Virginia Readmission Act. Second, the Defendants argued that Hessick used an unreliable methodology in her report because she could not classify some modern felonies, and her first-of-its-kind analysis made peer review difficult.
Hessick offered a reliable analysis generated largely by traditional, primary-source historical research. Moreover, Hessick’s conclusions did not affect the result in this case: The Court has reached its own conclusion about the law. Again, the Rule 702 inquiry here “is much less critical . . . because there is little danger of prejudicing” the Court sitting as both trier of fact and law—and the Court, which has now heard “the expert’s testimony or opinion,” has determined it has no effect on the Court’s legal analysis.
Ayers
As with Hessick, the Defendants contended that Ayers presented an inappropriate legal conclusion on the meaning of the disenfranchisement provision in Virginia’s Constitution.
The Defendants further labeled Ayers’s evidence irrelevant because it focuses on “racial discrimination in the south,” and “[P]laintiffs are not bringing a racial-discrimination claim” or claims involving other states’ regimes. The Defendants also questioned Ayers’s methodology.
The Court’s analysis of Hessick’s relevance applied with equal force here. To the extent the Court has relied on Ayers’s offerings, they have merely provided a largely undisputed context of Congress’ concerns about the expected legal shenanigans of the readmitted states: Ayers comments on the legal and political regime in place during the Reconstruction Era, colored by unsurprising discriminatory motivations.
The Court acknowledged that Ayers considered racial history in and beyond the Commonwealth’s borders. But again, “because there is little danger of prejudicing the judge,” the Court can determine what weight this portion of Ayers’ evidence deserves in resolving any factual disputes.
Finally, the Court rejected the Defendants’ allegations that Ayers departed from his “normal methodology” in preparing for this case. Ayers consulted with and cited to a variety of historical sources. Ayers further detailed his reliable methodology, at length, during a deposition.
Held
The Court denied the the Defendants’ motions to exclude the testimony of Professor Carissa Byrne Hessick and Dr. Edward L. Ayers.
Key Takeaway
An expert may meet Rule 702’s relevancy requirement even if he or she offers a legal conclusion. In this case, Ayers considered racial history in and beyond the Commonwealth’s borders. The complex legal concepts involving voting rights and constitutional law make it a typical case for allowing expert testimony that arguably states a legal conclusion in order to assist the jury.
This matter concerns an incident aboard the Valaris 144 while the vessel was performing offshore drilling services in the Gulf of Mexico off the Louisiana coast. Caleb Kittrell worked as a roustabout for Ensco Offshore on board the vessel owned by Rowan Offshore Luxembourg. On December 27, 2023, Kittrell was instructed to disconnect a jet line hose on board the vessel; however, as he went to disconnect the line, not knowing the line was still pressurized, the line disconnected and struck Kittrell’s hand resulting in injuries to his hand, including a “gamekeeper’s” fracture.
As a result of this incident, Kittrell had surgery to repair his hand and continues to suffer pain in his left thumb and index finger. Plaintiff asserted claims under the Jones Act, the General Maritime Law of Unseaworthiness and for the Seaman’s Remedy of Maintenance and Cure.
Perrin R. Roller, PE, a professional petroleum engineer, was retained by the Defendants to opine about the investigation of the incident at issue in the case and the operations that were conducted. Plaintiff filed a Daubertmotion, challenging the testimony and opinions of Roller.
Petroleum Engineering Expert Witness
Perrin R. Roller, PE has more than 40 years of experience in the oil and gas industry, including significant experience working offshore on jack-up drilling rigs.
Plaintiff challenged Roller’s opinions arguing that they are not based on reliable methodology. Defendants argued that Roller should be permitted to testify based on his extensive experience in the oil and gas industry. The Court agreed.
Roller’s curriculum vitae and affidavit detail his experience in the oil and gas field, from his start as a “roughneck” to his current role as a petroleum engineer and industry consultant. In addition to his personal experience in the oil and gas industry, having performed the task that Plaintiff performed in the present case, Roller relied upon industry practices and the Code of Federal Regulations to supplement his methodology. The Court found that Roller’s over forty years of experience in the field and his reliance on industry standards and applicable federal regulations in his report are “sufficient to withstand a Rule 702 challenge.”
Plaintiff pointed to Roller’s opinion that “The Valaris 144 was conducting jetting operations for several weeks prior to the incident involving Mr. Kittrell. In fact, the right was performing the jetting operations, almost exclusively for this time period. Mr. Kittrell would have seen and known the operations that were being conducted during his time for this particular hitch on the rig” to argue that this opinion is highly speculative and conclusory.
Because the opinions offered by Roller did not rely on completely unsubstantiated factual assertions, the Court will not exclude his testimony based on Plaintiff’s challenge to its reliability.
Held
The Court denied the Plaintiff’s Daubert motion to exclude the testimony of Defendants’ expert Perrin R. Roller.
Key Takeaway
Having considered the opinions offered in light of the facts as alleged by Plaintiff, and further having determined that Roller’s opinions are based not only on his experience working in the oil and gas industry but also upon federal regulations and standard industry practice, the Court found that his testimony will aid the trier of fact in understanding the complicated practices and procedures of working on a vessel offshore in the oil and gas industry.
This case arises out of a slip-and-fall incident that occurred at US Bank’s branch office in Kirkland, Washington, on December 7, 2020. Carol Hummel alleges that she fell in the parking lot and suffered injuries as a result of US Bank’s failure to maintain its premises in a reasonably safe condition.
Defendants U.S. Bancorp and U.S. Bank National Association (together, “US Bank”) filed a motion to exclude the testimony of Plaintiff Carol Hummel’s expert, Tom Baird.
Safety Expert Witness
Tom Baird is a Certified Forensic Consultant, Certified Walkway Safety Auditor, and Certified Floor Safety Technician. He serves on the National Floor Safety Institute’s Committee on the Identification and Elimination of Interior and Exterior Trip Hazards on Walking Surfaces, Stairs, Steps, and Ramps.
US Bank asserted that Baird’s testimony should be excluded because (1) his methodology is not sufficiently reliable, as it does not rely on “scientific, technical, or other specialized knowledge,” and (2) his testimony is not relevant and therefore would not assist the trier of fact.
1.Baird’s testimony is sufficiently reliable
Baird submitted a preliminary opinion report, which constitutes his sole expert report. The report includes exhibits such as photographs of Hummel’s injuries, photographs and Google Maps images of the US Bank location where the incident occurred, and photographs and a slope measurement obtained during a site visit.
US Bank contended that Baird’s methodology is unreliable because it is not grounded in science or technical data and is instead backward-looking and conclusory, failing to establish a causal basis or connection.
The Court disagreed. Baird’s credentials and experience demonstrate that he is qualified to offer the nine challenged opinions. In forming his opinions, Baird relied on multiple sources, including an interview with Ms. Hummel, a review of photographs of her injuries and the incident location, and a site inspection conducted by one of his associates on September 8, 2023. The Court found that reliability in this matter depended heavily on Baird’s specialized knowledge and experience rather than strictly scientific or technical data.
2. Baird’s testimony is relevant
The parties also disputed whether Baird’s testimony would assist the trier of fact in understanding the evidence or determining a fact in issue.
The Court concluded that the knowledge underlying Baird’s expert report bears a valid connection to the issues in the case and logically advances a material aspect of the dispute. It rejected US Bank’s argument that the testimony would “muddle the issues at trial” or “mislead the trier of fact.” Because the Court itself is the trier of fact, it determined that it could appropriately evaluate and weigh Baird’s opinions.
3. Baird’s New Declaration violates Rule 26(a)(2)(B)
US Bank argued that the Court should reject Baird’s new declaration, which Hummel included with her response to US Bank’s motion, because it violated Federal Rule of Civil Procedure 26(a)(2) by “introducing additional factual assertions, new methodologies, and additional training and experience not in Baird’s original report.”
The deadline for expert disclosures was October 9, 2024. The Court held that Hummel may not supplement Baird’s report through a new declaration filed after the disclosure deadline.
Accordingly, the Court strictly limited Baird’s testimony to the nine opinions set forth in his expert report and the previously disclosed supporting facts. He may not offer additional or clarified opinions beyond those properly disclosed.
Held
The Court denied US Bank’s motion to exclude the testimony of Tom Baird, but limited that testimony to the opinions and facts set forth in Baird’s preliminary opinion report.
Key Takeaway
An expert opinion is relevant “if the knowledge underlying it has a valid connection to the pertinent inquiry.” Here, Baird’s specialized knowledge and experience were sufficiently connected to the facts of the case to assist the trier of fact.
600 Cleveland owned a commercial office building located at 600 Cleveland Street, Clearwater, Florida 33601 from September 9, 2013, to April 1, 2024. Bank of America, N.A. (BANA) and 600 Cleveland assumed a lease agreement originally entered into by other parties on December 1, 1986, and both were bound by the agreement. This lawsuit arises from purported violations of the parties’ lease agreement (“Lease”). BANA counterclaimed that 600 Cleveland overcharged BANA for its share of Common Area Maintenance (“CAM”) under the Lease.
600 Cleveland filed a motion to exclude the entire expert report of Tracy P. Chelepis (“Chelepis Report”) and to bar him from testifying at the upcoming bench trial. The Chelepis Report relates to an audit performed by Chelepis’ firm, which found that 600 Cleveland overcharged BANA for CAM fees under the Lease by $160,882.01.
Accounting Expert Witness
Tracy P. Chelepis holds a Bachelor of Science in accounting from the University of Kansas where he took multiple classes on auditing, a CPA license for which he attends 80 hours a year in continuing education, and a real estate license as both agent and broker for which he also attends mandatory continuing education.
Chelepis also worked as an accountant for a major accounting firm performing financial statement audits and then spent years as a construction accountant for AT&T.
600 Cleveland made three arguments: (1) Chelepis’ methodology is unreliable; (2) his opinion is ipse dixit; and (3) his testimony would not help the trier of fact.
Cleveland argued that Chelepis should be barred from testifying because “lease auditing” does not have “articulated industry standards,” “peer review processes,” or a “regulatory governing body to which his opinions can be tested.” Cleveland contended that Chelepis’ reliance on his knowledge and experience as a CPA, purportedly without further explanation, rendered his methodology unreliable.
BANA correctly identified that, for non-scientific expert testimony, there need not be articulated industry standards, peer review processes, or a regulatory governing body. Nor did the fact that Chelepis’ methodology required him to interpret terms in the lease to determine whether certain costs were properly included make his opinion inherently unreliable.
Chelepis’ deposition testimony also undermined 600 Cleveland’s argument that his opinion is ipse dixit. Chelepis explained at length the general process he used to audit leases. He then reviewed the lease’s provisions and amendments and explained how he interpreted and applied them to reach his opinion. Chelepis similarly explained his accounting calculations and his underlying reasonable assumptions.
The Court concluded that Chelepis’ testimony would be helpful in navigating the numerous financial records and reconciling them, using accounting principles, with the lease’s guidance for what could properly be charged as operating costs.
Held
The Court denied 600 Cleveland’s Daubert motion to exclude the testimony of Tracy Chelepis.
Key Takeaway
The standards of scientific reliability, such as testability and peer review, do not apply to all forms of expert testimony and a district court may decide that non-scientific expert testimony is reliable based upon personal knowledge or experience.
This case arises from a skiing accident that occurred at Mountain Creek’s ski resort (“the Resort”). On February 21, 2021, Pierino Perciballi and his sixteen-year-old son Matteo Perciballi chose to ski down the Matchmaker trail, an intermediate difficulty terrain park course contained within the Resort. The Matchmaker trail is adjacent to the Resort’s “learning area.”
Mountain Creek uses blue, mesh fencing to separate Matchmaker trail from the learning area. In his descent down Matchmaker trail, Perciballi collided with this blue fencing, tangling his legs and violently falling to the ground. This collision caused him to sustain significant injuries, requiring four days of hospitalization and leaving him with an ongoing disability.
Plaintiffs filed this case on February 17, 2023, alleging two causes of action: (1) negligent management and design of the Resort resulting in Mr. Perciballi’s injuries, and (2) loss of consortium on behalf of his wife Brigida R. Perciballi.
Defendants filed a motion to preclude Plaintiffs’ expert witness, Richard Penniman.
Ski Safety Expert Witness
Richard C. Penniman has been a consultant to the ski industry since 1983, and has been qualified as an expert on, inter alia, slope design, snowmaking and impact mitigation in numerous state and federal courts across the United States. He is a member of numerous ski organizations and has lectured extensively on the topic of ski safety. Penniman has served as an Adjunct Instructor at Sierra Nevada College where he taught Ski Area Mountain Operations and Safety for nine (9) years. Penniman has also published numerous peer-reviewed articles on ski safety
A. Penniman’s unannounced inspection of the Mountain Creek Resort does not justify barring his testimony
Mountain Creek’s first argument against the admissibility of Penniman’s decision does not challenge the sufficiency or applicability of his expertise; rather, it asked the Court to exclude Penniman’s opinion as a sanction for failing to follow Fed. R. Civ. P. 34(a)(2).
In his deposition, Penniman admitted to taking an unannounced trip to the Resort in March 2023, where he conducted an examination of the Resort’s grounds to assess the site of the accident and the Resort’s safety procedures in general.
When determining whether to impose a discovery sanction, the movant must first show that there has been a violation of the rules of discovery or the orders of the Court. Plaintiffs argued that there was no need for Penniman to get special permission from Mountain Creek to investigate a publicly accessible location, even if that location was owned by Mountain Creek.
The Court held that where the premises are open to the public and the inspecting party has permission to enter (and does not deviate from the parameters of the permission), parties are not required to seek approval prior to inspection under Rule 34, unless the inspection poses a greater, articulable danger or burden to the business, employees, or other visitors than is expected of a typical visitor.
Applying this rule, Penniman acted in almost every way as an ordinary skier. Even if Penniman’s inspection was a discovery violation, Mountain Creek did not sufficiently argue that exclusion was warranted. Though Mountain Creek claims it is “severely prejudiced” by the unannounced inspection, the only prejudice it cited is that it was “not present to observe the inspection,” or able “to document the conditions observed or observable on that date.”
B. The Penniman Report is sufficiently reliable to assist the jury and will not be excluded
Mountain Creek’s second argument for precluding Penniman’s testimony and report from the jury is that he lacks a reliable foundation for his opinion. Mountain Creek sought to exclude the following topics from Penniman’s opinion: (1) the “use of blue fencing” in the skiing industry; (2) the role, if any, shadows played in causing the accident; (3) how most North American ski resorts organize their ski trails; and (4) whether the “progression area” used to train new skiers is a hazard when placed next to a trail for more experienced skiers.
1. Penniman is permitted to testify to the relative advantages of fence coloring at different ski resorts
In his expert report, Penniman discussed the significance of fencing colors on the safety of skiing trails. According to Penniman, “blue fabric fencing such as that with which Mr. Perciballi became entangled can be very difficult to discern from shadows on the snow surface later in the day,” and for that reason the industry standard is that “any fencing, hazard marking or safety signs be brightly colored and highly visible so as to attract attention.”
However, Mountain Creek believed that this testimony lacked “factual evidence from the record in this case,” and is instead “based solely on his personal experience and limited discussions with ski patrollers.”
The Court disagreed. Penniman’s report and testimony contain sufficient foundation. It is uncontested that: (1) Mountain Creek used blue fencing at the time of the accident; (2) Plaintiffs’ accident happened in the afternoon; (3) Penniman made an inspection of the site of the accident and observed the shadow cover of the area in the afternoon; (4) at least some ski resorts in North America use brightly-colored fencing; and (5) Penniman claimed, in his professional experience, use of brightly-colored fencing is standard. This is a sufficient factual foundation whereby a reasonable jury could find that such a standard exists, should they credit Penniman’s testimony.
2. Penniman may not testify that the shadows ’caused’ Plaintiffs’ accident
The Penniman Report also assesses the role that shadows play in terms of hazardous course conditions while skiing, both in general and in how it contributed to Plaintiffs’ accident in particular.
Mountain Creek challenged the admissibility of these claims on two grounds. First, it argued that Penniman improperly opined on the cause of an accident he was not present to witness and of which has no personal knowledge. Second, Mountain Creek interpreted Penniman’s opinion as contradicting the fact witnesses in this case without cause and believed the contradiction is severe enough to warrant precluding his testimony.
Mountain Creek specifically objected to a line in the Penniman Report claiming “the shadows appear to have caused Mr. Perciballi not to discern the difference between the long tree and pole shadows across his path and the blue fence.” In making this conclusion, Penniman did not quote Perciballi or his son, and by his own testimony has not personally spoken to either fact witness. The Court held that Penniman’s inspection of the site on a different day, without personally witnessing or reviewing the accident, is not sufficient personal knowledge to testify about its cause.
To the extent Mountain Creek challenged the admissibility of any opinion offered by Penniman pertaining to shadows on the ski track, the Court found this opinion admissible. Perciballi may believe the lack of visibility was caused by snow cover, rather than shadows, but this is consistent with the Penniman Report which states that shadows and snow make blue mesh fencing less visible.
3. Testimony about an alleged generally-applicable standard for ski course design is admissible, even when based on personal experience
Finally, Mountain Creek objected to the sections of Penniman’s report and testimony that claimed the “standard custom and best practice” of ski resorts is to have “learning areas . . . separated geographically from the other trails,” to avoid conflict with other skiers.
However, Mountain Creek did not provide a legal basis for its assertion that Penniman must have a “written . . . industry standard,” to support his opinion that the placement of the learning area at the Mountain Creek resort was not best practice.
Plaintiffs argued that Penniman is not testifying that Mountain Creek failed by not living up to his personal standard. Instead, they contended he is testifying that there is an unwritten industry standard and—as an expert—he is in a position to know it. To support their interpretation of Penniman’s opinion, Plaintiffs offered several surveys and reports on the safety protocols of ski resorts authored by Penniman, most notably The California Mountain Resort Safety Report: Survey Methodology and Scoring Criteria (the “California Mountain Report”), as evidence of his knowledge of ski safety standards. For his part, Penniman also testified in his deposition about this study and the research he performed for that study alongside his personal observation of the practices at “over 300 ski areas in the U.S.,” which formed the basis for his opinion that it is an industry standard for resorts to separate learning areas “geographically.”
This may be a “shallow basis as to any industry standard,” as Mountain Creek says, but it is nonetheless sufficient for the “liberal policy of admissibility,” for expert opinions.
C. Experience as a professional ski instructor and ski resort safety consultant are sufficient to testify as an expert
Mountain Creek also challenged Penniman’s qualifications to give his opinion on how skiers typically act, and how they navigate a trail because he is “not trained in human factors, human behavior, biomechanics, engineering, or psychology.”
Mountain Creek’s assertion that Penniman’s decades of experience as a trainer, ski patrol member, and ski trail safety designer “does not constitute superior knowledge, education, experience or skill on the subject matter of skier’s behavior,” to a jury who may have never skied before, because he does not have an unrelated degree in “human factors, human behavior, biomechanics, engineering, or psychology,” is not credible.
The Court found that Penniman is sufficiently qualified to serve as an expert on skier behavior and expectations.
Held
The Court granted in part and denied in part Mountain Creek’s motion to preclude Richard Penniman’s testimony.
Key Takeaway
An expert may testify as to his or her opinion on the ultimate cause of an injury, even “in the absence of complete information,” so long as the expert has sufficient direct knowledge to ground his or her opinion.
But when an expert opinion “is not based on any direct or circumstantial evidence,” it is inadmissible conjecture, even if the safety measures the expert advocates for would have made the injury “less likely.”
Billy Joe Altstatt, acting as the brother and legal guardian of Johnny Altstatt, an incapacitated individual, filed suit against the Board of County Commissioners of Oklahoma County and the Oklahoma County Criminal Justice Authority, alleging violations of Johnny’s federal and state constitutional rights.
Defendants Board of County Commissioners for Oklahoma County and Oklahoma County Criminal Justice Authority each moved to strike Plaintiff’s expert witness, Phil Williams, on the grounds that Plaintiff failed to timely serve Williams’ expert report as required by Federal Rule of Civil Procedure 26(a).
Law Enforcement Expert Witness
Phil Williams is a retired police officer formerly assigned to the Oklahoma County Jail.
His background, knowledge and expertise as to the operation of the jail, policies, personnel, and the manner of operations is of relevance.
In support of its motion, Defendant Board of County Commissioners for Oklahoma County provided a timeline of events similar to the one set forth by the Court above. Further, Defendant asserted that it sent two emails to Plaintiff’s counsel-the first on April 8th and the second on April 10th- asking counsel for the missing expert witness report. Defendant Board contended that Plaintiff’s counsel did not respond to either email nor did they provide an expert report for Williams.
Defendant Oklahoma County Criminal Justice Authority filed a motion to strike Williams as an expert witness for the same reasons set forth in Defendant Board of County Commissioners for Oklahoma County’s motion.
Plaintiff essentially agreed with Defendants’ narrative of the timeline of events relating to his delay in filing his expert witness list and serving Williams’ expert witness report. Further, Plaintiff conceded that his “report is overdue and counsel have made mistakes since their attorney fell ill and had to withdraw from the representation of Plaintiff.” Plaintiff represented that Defendants have now been provided with Williams’ report and Plaintiff is “agreeable to providing Williams for deposition at a mutually agreeable date and time.”
Although Plaintiff failed to timely serve Defendants with Williams’ expert report despite the Court granting him several extensions of time, the Court declined to impose the “drastic sanction” of striking Plaintiff’s expert witness. Plaintiff asserted that he was not attempting to withhold Williams’ report from Defendants for several months. Rather, Plaintiff’s counsel was trying to get up to date after their lead counsel had to withdraw from this case for medical reasons, and counsel was not in receipt of Williams’ report when the deadline expired.
Held
The Court denied both the Board of County Commissioners for Oklahoma County’s and the Oklahoma County Criminal Justice Authority’s motions to strike the testimony of Plaintiff’s expert witness, Phil Williams.
Key Takeaway
The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court because the decision to exclude evidence is a drastic sanction.
Case Details:
Case Caption:
Altstatt V. Board Of County Commissioners For Oklahoma County
Wesley Cotton alleged that on March 19, 2022, an incident occurred on Yard 3C at California State Prison, Corcoran (“CSP-Corcoran”), in which officers deployed multiple chemical agents, including oleoresin capsicum (“OC”), chloroacetophenone (“CN”), chlorobenzalmalononitrile (“CS”) grenades (collectively, “chemical agents”) to stop a fight between third party prisoners.
At the time the chemical agents were deployed, Cotton was located on an adjacent yard, 3B. Cotton alleged that Defendant Medina failed to protect him from exposure to the chemical agents which travelled from Yard 3C into Yard 3B, where he was locked in a caged enclosure. The alleged exposure caused Cotton to choke and injured his eyes, lungs, and body.
Cotton challenged the testimony of Defendant’s expert witness, Sgt. M. Contreras, an armory sergeant at CSP-Corcoran, on multiple grounds.
Law Enforcement Expert Witness
M. Contreras is a veteran law enforcement officer with nearly twenty-five years of experience and has worked as an armory sergeant at CSP-Corcoran since 2017 where he became familiar with the facilities and layout of Yards 3B and 3C.
Over the course of his career, Contreras developed extensive and specialized knowledge regarding the maintenance, handling, and use of chemical agents and use-of-force munitions including OC, CN, and CS gas grenades.
Cotton moved to exclude the testimony of M. Contreras under FRCP 26(a)(2) and 37(c)(1), alleging that Defendant is trying to “sneak in” M. Contreras as a new witness outside of the discovery timeline and without proper notice.
To begin with, Cotton claimed that Defendant failed to disclose Contreras in the initial or final witness lists (May 11, 2023), the non-expert deadline (January 19, 2024), or the expert deadline (February 23, 2024) and that Defendant failed to show substantial justification or lack of harmlessness for the late disclosure or harmlessness.
The Court noted multiple deficiencies in Cotton’s argument, mainly that according to the “Second Scheduling Order” in this case, the deadline for all parties to serve their expert disclosures was August 15, 2025.
Defendant provided evidence that she did in fact timely disclose and serve on Cotton the Rule 26 expert report for M. Contreras on August 15, 2025, more than 90 days before the January 27, 2026 scheduled trial date.
b. Motion to Strike
i. Daubert Admissibility
Contreras relied on “his experience and training on the nature, use, and effective range of the specific chemical munitions deployed in the underlying incident” in formulating his opinion that an individual located on CSP-Corcoran’s 3B Yard – located approximately 750 feet south of where chemical agents were deployed on CSP-Corcoran’s 3C Yard during the March 19, 2022 incident and separated by multiple buildings – would not have been affected by the chemical agents. Furthermore, in reaching his opinion, Contreras reviewed reports from the March 19, 2022 incident, surveillance-camera and body-worn camera footage of the incident and conducted a physical inspection and measured the incident location.
In a motion related to Contreras’ testimony, Cotton claimed that “as only an armory officer/sergeant, Contreras presents no accredited training in CN chemical composition, gas dispersion or meteorology – yet seeks to offer scientific-type opinions.” However, Cotton does not elaborate on Contreras’ alleged lack of qualifications, lack of personal knowledge, or his accusation that allowing M. Contreras to testify would constitute “unfair prejudice/confusion/waste given CCPOA allegiance and armory-only role.”
As a result, the Court is satisfied that Contreras’ “specialized knowledge and experience can serve as the requisite ‘facts or data’ on which [he may] render an opinion.” Contreras has provided the “how and why” underlying his conclusions and opinion in this case, which appears to be, at least in part, his knowledge and expertise with the CSP Corcoran premises and the nature, use, and effective range of the specific chemical munitions at issue in this caser to arrive at his conclusion. The Court also found that there is no evidence of Contreras showing improper “allegiance” to either Defendant or CSP-Corcoran.
ii. Exclusion under Rules of Evidence 602, 802, 701(c), and 403
Cotton complained that Contreras’ testimony and expert report failed to satisfy the criteria of the various Federal Rules of Evidence.
As a threshold matter, because Defendant intended to have Contreras testify as an expert witness, Cotton’s invocation of Federal Rules of Evidence 602 and 701(c) as grounds for exclusion are unavailing.
Cotton’s invocation of Rule 802 and 403 was similarly unpersuasive. Out-of-court statements are inadmissible hearsay when they are offered to prove the truth of the matter asserted.
Cotton did not explain how Contreras’ testimony or expert report constitutes inadmissible hearsay, as Contreras’ opinion appeared to be based on non-hearsay evidence, including his professional training, operational experience, physical inspection and measurement of the incident locations, and review of surveillance and body-warn-camera footage of the incident.
Held
The Court denied Cotton’s motions to strike the testimony of Defendant’s expert witness, M. Contreras.
Key Takeaway
An expert need not rule out every potential cause in order to satisfy Daubert, as long as the expert’s testimony addresses obvious alternative causes and provides a reasonable explanation for dismissing specific alternate factors identified by the defendant.
Case Details:
Case Caption:
Cotton V. Medina
Docket Number:
United States District Court for the Eastern District of California
Plaintiff LaBlanca Sibley’s excessive force claim against Officer Nicholas S. Riggall, arising from her arrest and detention, was based on Riggall’s use of pepper spray while she was seated in the patrol car.
Sibley retained Mr. Jeronimo Rodriguez, an expert in law enforcement practices and use-of-force standards. Riggall moved to exclude Rodriguez’s opinions and testimony. Riggall challenged Rodriguez’s qualifications, methodology, and helpfulness to the trier of fact.
Law Enforcement Expert Witness
Jeronimo “Jerry” Rodriguez served as a police officer with the Los Angeles Police Department for over 25 years, including work in the Force Investigation Division.
Since retiring as an active law enforcement officer in 2021, Rodriguez has reviewed and consulted on police and law enforcement practices as a private police consultant and audited agencies across the country and continued to train many agencies throughout the United States on police-related investigations.
Riggall pointed out that Rodriguez has not “studied, personally conducted research, or authored any literature on the use of force at issue in this case.”
First, Riggall’s argument on qualifications, made conclusorily and without citations to any authority, is insufficiently developed for the Court to consider.
Regardless, Rodriguez is qualified to testify as a police practices expert generally and about the use of force specifically. Rodriguez has served as a law enforcement officer for decades. For some of those years, he conducted investigations into officers’ uses of force. Since his retirement from law enforcement, Rodriguez has worked as a police practices expert in other cases and has consulted and provided trainings on various police practices subjects.
Reliability
Riggall argued that Rodriguez’s opinions “are not based on sufficient or accurate data” because, among other things, Rodriguez supposedly “draws his opinion on the force being excessive largely upon his belief that Sibley was falsely arrested and had not been resisting or involved in any crime.”
The Court found Rodriguez’s methodology sufficiently reliable. Rodriguez described his methodology thusly: his “method for forming opinions relies on nearly forty years of experience as a police officer and trainer, collaboration with various instructors and police practices experts, and a comprehensive review of relevant evidence and materials, without making credibility judgments.”
To the extent Rodriguez allegedly relied on Sibley’s version of events, such reliance did not merit exclusion of Rodriguez’s opinions.
Assistance to the Trier of Fact
Riggall argued that Rodriguez’s opinions will not be helpful to the jury because “Rodriguez never explains, beyond his own characterization of Plaintiff’s behavior as ‘tapping merely to get an officer’s attention to plead her innocence,’ the basis for not permitting a reasonable officer to interpret Plaintiff’s behavior as violent or aggressive.” He also argued that “Rodriguez offered legal opinions in the guise of interpreting the [Lakeland Police Department’s] policy on use of force.”
However, the Court rejected this argument in part. Rodriguez’s opinions on the use of force and police practices will be helpful to the jury. Likewise, Rodriguez’s opinion on whether Riggall behaved in accordance with police procedures will be helpful to the jury.
Although most of Rodriguez’s opinions and report do not contain legal conclusions, he did characterize the use of pepper spray as “excessive.” Calling the use of force “excessive” is a legal conclusion, given the jury is tasked with deciding whether the use of force was “excessive” and, therefore, unconstitutional. As a result, the Court will not allow Rodriguez to opine that the use of force was “excessive.”
Held
The Court granted in part and denied in part the Defendant Nicholas S. Riggall’s motion to exclude the testimony of Plaintiff’s expert Jeronimo Rodriguez.
Key Takeaway
An expert is permitted to base his opinion on a particular version of disputed facts and the weight to be accorded to that opinion is for the jury.
