Expert Witness Profiler

Tag: Gun

  • Law Enforcement Expert Witness Allowed to Discuss Intoxication’s Impact on the Ability to Communicate 

    Law Enforcement Expert Witness Allowed to Discuss Intoxication’s Impact on the Ability to Communicate 

    As personal representative to the estate of Joshua Sarrett, Plaintiff Derek Stenson brings federal and state law claims against King County and Jacob Leenstra, a Sherriff’s Deputy, who shot and killed Sarrett on September 19, 2020, while responding to a request for help at Sarrett’s residence.

    On September 19, 2020, Sarrett’s sisters, Chantal Capps and Amanda Haynes, went to Sarrett’s home in Auburn to check on his welfare after hearing reports that he had been depressed, drinking excessively, and physically abusing his girlfriend, Taylor Nystrom. 

    King County Sheriff’s Deputy Jacob Leenstra was flagged down and asked to intervene with Joshua Sarrett. Deputy Leenstra was told that Joshua Sarrett was intoxicated, violent, and armed with a gun which he had both fired and pointed at someone.

    Based on what he had been told, Leenstra did not want to leave until he investigated the domestic violence allegations. Leenstra shot and struck Sarrett four times from roughly fifty feet away. After Leenstra shot Sarrett, he cuffed him and began to provide medical care until Auburn Police arrived. Sarrett died shortly after Leenstra shot him. 

    Defendants filed a motion to exclude two of Plaintiff’s experts: Russ Hicks and Roger Clark. 

    Hicks, who has substantial experience in law enforcement and officer training in Washington, opines as to whether Leenstra’s actions complied with “policy, police standards, and . . . basic police academy training [Leenstra] received at the [Washington State Criminal Justice Training Center] regarding criminal laws, reasonable suspicion, probable cause, use of force, patrol tactics, and de-escalation in the confrontation and the use of deadly force.” 

    Clark has extensive law enforcement experience and provides his opinion on whether Leenstra’s use of deadly force was reasonable and consistent with police training and a “reasonable professional standard of care” for police officers.

    Law Enforcement Expert Witnesses

    Russ Hicks is a retired, 30-year law enforcement officer and former police academy supervisor and trainer. Specifically, he was the Basic Law Enforcement Academy (BLEA) Assistant Commander and a police instructor (TAC Officer) at the Washington State Criminal Justice Training Commission (WSCJTC) in Burien, WA.

    Get the full story on challenges to Russ Hicks’ expert opinions and testimony with an in-depth Challenge Study. 

    Roger Clark has been certified by Federal and State courts as expert in jail and police procedures in Federal and State Courts. He has been consulted in approximately 2400 cases thus far since his retirement from the Los Angeles County Sheriff’s Department.

    Want to know more about the challenges Roger Clark has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Russ Hicks

    First, Defendants argue that Hicks’ opinions should be excluded because he omitted data provided by Leenstra about Sarrett’s behavior. Defendants argue that Hicks did “not attempt to opine whether an officer could reasonably mistake a gun magazine in a pocket for a gun.” The Court held that this criticism does not identify a critical flaw in Hicks’ methodology or any basis to conclude that his opinion is based on insufficient data. At most, it identifies an issue that may be relevant to the fact-finder’s determination, but not one that is required to make the expert’s opinion admissible or reliable.

    Second, Defendants argued that Hicks’ opinion is unreliable because he did not base his opinion on statements made a month after the shooting. But Hicks’ decision as to what evidence he found more persuasive does not mean his opinion is subject to exclusion. At trial, the Court held that Defendants will be free to attack his decision to put greater weight on certain evidence and discount other evidence. But that is not a basis for exclusion.

    Third, Defendants argued that Hicks’ opinion was excluded in another case. But this argument failed to identify any reason why Hicks’ opinions in this case should be excluded. The Court rejected this incomplete argument.

    Lastly, Defendants point out that Hicks may have overlooked certain evidence. The Court held that the fact that he may have based his conclusion on an incomplete record is not grounds for the exclusion of his report. At trial, Defendants can point out the gaps in Hicks’ opinion to the finder of fact, who will be well-positioned to weigh the value of Hicks’ testimony and opinions. Any omissions will go to the persuasiveness of his opinions.

    Roger Clark

    First, Defendants argued that Clark lacks sufficient “experience on modern police standards” to provide his opinion on the standard of care for use of force. Defendants pointed out that Clark has never been a police officer in Washington and he failed to cite Washington law in rendering his opinion. But the Court found that he had extensive law enforcement experience identified in his report that supports his views on the standards of police use of force. This is relevant to Plaintiff’s federal claims, which do not require any particular expertise in Washington State.

    Second, Defendants argued that Clark failed to identify the Graham factors in his analysis and that he invoked the wrong standard. The Court found no merit in this criticism. Clark opines generally on the use of force and whether it was objectively reasonable, given his experience and training. While his report could be clearer about the legal framework, that alone does not merit exclusion of his opinion.

    Third, Defendants argued that Clark improperly opined on ultimate issues of liability that the jury should consider without experts intruding on the jury’s province. Defendants specifically fault Clark for stating that “Deputy Leenstra’s use of lethal force in this case was based on a subjective belief/fear and was never justified.” But as the Court understands Clark’s report, he is not opining an ultimate jury issue. Rather, he provides his assessment of whether Leenstra’s use of force was reasonable and justifiable.

    Fourth, Defendants argued that Clark cannot testify about the effect of alcohol on Sarrett and his ability to comply with Leenstra’s demands. While Clark’s opinion are potentially subject to effective cross examination, he does have sufficient experience to discuss intoxication’s impact on the ability to communicate in the context of the facts of this case.

    Held

    The Court therefore denied the motion to exclude both Russ Hicks’ and Roger Clark’s expert opinions.

    Key Takeaway:

    Just because Russ Hicks’ opinions was excluded in another case does not mean his opinions in this case should be excluded. 

    When Defendants identified gaps in Hicks’ opinion, the Court held that the finder of fact will be well-positioned to weigh the value of Hicks’ testimony and opinions.

    As for Clark, the Court understands Clark’s report because he is not opining an ultimate jury issue. Rather, he provides his assessment of whether Leenstra’s use of force was reasonable and justifiable.

    Case Details:

    Case Caption: Stenson V. King County Et Al
    Docket Number: 2:23cv1316
    Court: United States District Court, Washington Western
    Order Date: December 13, 2024
  • Firearms & Ballistics Expert Witness’ Defect and Causation Opinions Excluded

    Firearms & Ballistics Expert Witness’ Defect and Causation Opinions Excluded

    A district judge in Alabama excluded the testimony of the firearms & ballistics expert because he did not offer any evidence to show any of the alleged dangerous conditions in order to support the product liability claims.

    Plaintiff James Andrew Scott, II filed a complaint against Remington Arms Company, LLC (“Remington”) alleging that defects in the trigger mechanism for a Remington Model 770 bolt-action rifle caused it to fire unexpectedly, resulting in the death of his daughter, Alyssa Brooke Scott.

    On November 13, 2017, 15-year-old Alyssa and her godmother Christal Davis went deer hunting together. After Alyssa and Davis decided to end the hunt, Davis closed the rifle’s bolt and tied a nylon rope through the trigger guard to lower the rifle to Alyssa. Davis testified that she tied the rope behind the trigger and made sure there was no slack in the knot. Alyssa told Davis that she turned on the rifle’s manual safety switch before she handed over the gun, but Davis does not remember personally checking the position of the safety before she began to lower the rifle from the deer stand. 

    Davis lowered the rifle with the muzzle pointing down and the rope fastened through the trigger guard. About halfway down, the gun fired and the bullet struck and killed Alyssa. 

    Before the Court is Remington’s combined motion to exclude the opinions of Plaintiff’s proffered liability expert, Jerry Morris and motion for summary judgment.

    Firearms & Ballistics Expert Witness

    Jerry Morris has been a gunsmith for 51 years and has worked on hundreds of makes and models of firearms, serviced over 10,000 firearms,” and taught classes on gunsmithing. His expert report represented that he “had extensive knowledge and experience with the Remington 770 rifle, and the trigger system in particular.” 

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Jerry Morris’ expert testimony. 

    Discussion by the Court

    Rule 26

    Remington argued that Morris’ affidavit is a violation of Rule 26 since it was untimely under the existing scheduling order and consisted of new reasoning and opinions.

    The Court held that Scott “was not allowed to use [the Morris affidavit] to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

    But Scott did not argue that the failure to timely disclose this evidence was substantially justified or harmless, despite being given the opportunity to do so. Instead, Scott stuck to his argument that the evidence was an expansion or elaboration of Morris’ previous testimony, which the Court rejected.

    The Court held that the affidavit did not qualify as a supplementation under Rule 26(e) because it went well beyond correcting or completing inaccuracies or omissions in the original expert report.

    Rule 702

    Remington challenged all of Morris’ opinions. First, Remington contended that he was not qualified to offer his defect opinion and that this opinion was not based on any reliable method-based testing, literature, observations, or experience. Second, Remington argued that Morris’ causation opinion was not supported by any testing, the evidence in this case, or his personal experience.

    1. Qualification

    Morris based his opinion on the manufacturing process of the Model 770’s trigger and sear. He claimed that Remington uses “inferior powdered metal in the components of the trigger system” and that the rough sear contact was unpredictable and inconsistent.

    The Court held that Morris may know a lot about guns, but there is no evidence that he ever investigated or studied the materials in the Model 770 trigger mechanism. He has not designed any fire controls or fire control components and has not reviewed any manufacturing or design records related to the Model 770 rifle. In fact, he admitted that he has only repaired two 770 rifles and cleaned about a dozen in his long history as a gunsmith. And as to this particular gun, he did not measure the sear engagement or contact points between the trigger and sear since he did not have the proper tools. In other words, Morris was not qualified to offer an opinion on the metallurgical properties or design process of the trigger or sear in the Remington Model 770 rifle.

    2. Reliability

    The Court held that even if Morris had the qualifications to offer his opinions, they would fail the reliability prong of the Daubert inquiry.

    To begin with, Morris did not provide any measurements or objective observations of rough contact points or surfaces between the sear and trigger in the rifle at issue here. In fact, he admitted that he did not have the tools to measure them. Likewise, when Morris offered the opinion that the low and inconsistent trigger pull forces he documented resulted from a chipped trigger or rough contact points between the trigger and sear, his testimony merely assumed the presence of a chipped trigger or rough contact points without any evidence supporting that assumption.

    The Court found that Morris did not perform any testing or offer any evidence to show that any of the alleged dangerous conditions—“powdered metal” trigger components, rough sear contact points, a chipped trigger, or inconsistent trigger pull weights—caused the rifle to fire without activating the trigger.

    3. Assisting the Trier of Fact

    The Court found that Morris’ theory that the gun could have bumped the tree as it was lowered to the ground lacked evidence; instead, the uncontroverted evidence from the single surviving eyewitness is that the gun did not bump the tree.

    The Court concluded that multiple portions of Morris’ opinions were not based on facts in evidence, and thus would not assist the trier of fact.

    With the exclusion of Morris’ expert opinions, Remington contended that Scott did not offer sufficient evidence to support his product liability claims. The Court agreed and entered final judgment in favor of Remington and against Scott.

    Held

    The Court granted Defendant’s motion to exclude the opinions of Plaintiff’s proffered liability expert, Jerry Morris.

    Key Takeaway:

    Morris based his defect and causation opinions on the materials and process Remington used to manufacture the trigger and sear. The Court excluded his opinions because he did not produce any literature, reports, or other documentation to support his contention that the Model 770’s components are inferior to other fire controls using different processes or materials. Importantly, he did not provide any testing, explanation, or other support for his theory that using hardened forged steel would create a more consistent contact point between the sear and the trigger. Instead, there is simply no explanation in the record for the methodology he used in reaching his conclusions. Morris has not designed any fire controls or fire control components and has not reviewed any manufacturing or design records related to the Model 770 rifle.

    Case Details:

    Case Caption: Scott V. Remington Arms Company., LLC
    Docket Number: 2:19cv1891
    Court: United States District Court, Alabama Northern
    Order Date: June 13, 2024

  • Court Refuses to Bar Expert Witnesses from Opining on Firearms Regulation

    Court Refuses to Bar Expert Witnesses from Opining on Firearms Regulation

    A district judge in Vermont refused to exclude the testimony assessing the impact of gun laws presented by the State’s expert witnesses.

    Plaintiffs, corporate entities affiliated with gun ownership and several Vermont residents, filed this action against Defendants, high-level Vermont state officials. Plaintiffs allege that 13 V.S.A. § 4021, which prohibits possession and sale of “large capacity ammunition feeding device[s],” and 13 V.S.A. § 4019a, which prohibits transfer of a firearm without a background check or expiration of a waiting period, are unconstitutional under the Second Amendment. On December 20, 2023, the Plaintiffs filed a motion for a preliminary injunction against the enforcement of the Vermont laws.  A hearing on that motion is set for May 23, 2024. In anticipation of that hearing, Plaintiffs filed a motion to bar the State’s expert witnesses from testifying. 

    Economics Expert Witness

    Lucy Allen is a Senior Managing Director of NERA Economic Consulting (“NERA”), a member of NERA’s Securities and Finance Practice and Chair of NERA’s Product Liability and Mass Torts Practice. She has analyzed issues related to mergers, ERISA claims, market microstructure, and alleged market manipulation and insider trading, including on complex financial instruments such as credit derivatives, futures, and swaps. She holds a bachelor’s degree from Stanford and three graduate degrees from Yale (M.B.A., M.A., and M.Phil.)

    Get in-depth insights into Lucy Allen’s expert witness experience by requesting her Expert Witness Profile today.

    Language & Linguistics Expert Witness

    Dennis Baron is a Professor Emeritus and Research Professor at the University of Illinois, serving in both the English and Linguistics Departments. He holds a Ph.D. from the University of Michigan and did his dissertation on “historical aspects of the English language.” In addition to his scholarly publications, he writes frequently on language and technology issues in the news, and his essays have appeared in the New York Times, the Washington Post, the Chicago Tribune, and many other papers.

    Discover more cases with Dennis Baron as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Criminal Law Expert Witness

    John Donohue is a law professor at Stanford Law School. He holds a law degree from Harvard and a Ph.D. in economics from Yale. He teaches a course on empirical law and economics issues involving crime and criminal justice and has “published extensively” on the impact of gun regulation (or the lack thereof) on crime.

    Don’t stop at Vermont Federation Of Sportsmen’s Clubs Et Al V. Birmingham Et Al – review the grounds for prior Daubert challenges and judicial criticism of John Donohue in our Challenge Study.

    History Expert Witness

    Randolph Roth is a professor of history and sociology at The Ohio State University. He has a B.A. in history from Stanford and Ph.D. in history from Yale. He teaches and researches with a primary focus on “criminology and the history of crime.”

    Want to know more about the challenges Randolph Roth has faced? Get the full details with our Challenge Study report.

    Political Science Expert Witness

    Robert Spitzer is a professor of political science at the State University of New York at Cortland. He is currently teaching at William and Mary Law School. He has a Ph.D. in government from Cornell and has written extensively on American politics and gun policy. Professor Spitzer’s “expertise includes the history of gun laws, gun policy in American politics, and related historical, legal, political, and criminological issues.”

    Gain a comprehensive understanding of Robert Spitzer’s qualifications and casework history with his Expert Witness Profile report.

    Discussion by the Court

    Lucy Allen

    The State sought to introduce Allen’s testimony on “the number of rounds of ammunition fired by individuals using a gun in real-life self-defense” and “the outcomes when large-capacity magazines are used in public mass shootings, including the associated number of casualties.”

    Allen analyzed more than 736 incidents in the NRA Armed Citizen database and 200 news stories from a random sample of 4,800 detailing incidents of self-defense and found that “it is extremely rare for a person . . . to fire more than 10 rounds [when using a firearm in self-defense].” Her research revealed only two incidents “where more than 10 rounds were used.”

    Allen also analyzed roughly 200 mass shootings from four different sources between 1982 and 2022 and found that “(1) large-capacity magazines are often used in mass shootings; (2) both injuries and fatalities were higher in mass shootings that involved large-capacity magazines than in other mass shootings; (3) it is common for offenders to fire more than 10 rounds when using a large-capacity magazine in mass shootings; and (4) the majority of guns used in mass shootings were obtained legally.”

    The Court held that her expert testimony made a “fact that is of consequence to the determination of the action” – namely, how LCMs are used – “more or less probable than it would be without” her testimony. Moreover, the underlying sources of Allen’s analysis – NRA data and news reports – are the kind that an expert would “reasonably rely” upon in forming an opinion on the subject.

    Dennis Baron

    Baron would testify that “during the Founding Era and the Reconstruction Era, ‘arms’ was used as a general term for weapons . . . but did not include ammunition [or] ammunition containers.” This is based on analysis of broader phrases such as “arms and accoutrements” which, in Baron’s opinion, were used to specify items (accoutrements) other than firearms themselves.  Baron would also testify that he has found “no lexical evidence that either repeater firearms or repeater air guns were used as military weapons in England or America in the Founding Era, or that they were used as weapons of personal self-defense at that time.”

    Baron’s analysis of the historical understanding of the term “arms” is relevant to determining whether the government’s regulation covers conduct protected by the Second Amendment. Resolution of that issue requires evaluating whether the restricted items – LCMs, in this case – qualify as “arms” under the Second Amendment. The Court held that Baron’s research is relevant to determining whether the regulation covers protected conduct requires textual analysis.

    Plaintiffs stated that there is no way to use a firearm without ammunition, rendering magazines integral to “arms” within the meaning of the Second Amendment, but the fact that having some magazine may be crucial to keeping and using a firearm says nothing about whether governments may impose outer limits on those magazines, which is the question before the Court. Baron’s understanding of the historical context of these terms is relevant to this determination.

    John Donohue

    Donohue would testify that “restrictions on the size of large-capacity magazines . . . can be expected to reduce deaths and injury from gun violence.” He would also testify that “substantial empirical evidence illustrates that waiting periods prior to the purchase of weapons . . . will reduce suicides – particularly among young adults – and would be expected to reduce the risk of . . . enraged individuals buying firearms on the way to commit mass violence.” Finally, Donohue reported that restrictions on LCMs generally have “little or no effect on the ability of individuals to possess weapons for self-defense,” but “should have” a mitigating effect upon mass violence.

    Donohue stated that “the problem of public mass shootings in the United States is a serious and worsening national problem.” He added that governments “began responding to this growing menace with . . . restrictions on the type of weaponry that facilitated mass shootings.” 

    Donohue’s declaration goes directly to the question of whether mass shootings are a social problem addressed by previous generations, or whether they are a novel challenge requiring legislative innovation. 

    This is a substantial consideration undergirding the historical analysis pursuant to Bruen and is therefore relevant to the case. The Court held that Donohue’s causal claims are not solely applicable to interest balancing frameworks. Empirical research on gun regulation and violence rates is relevant to the question of whether societal problems are new, and whether they correspondingly mandate new solutions. 

    Plaintiffs correctly asserted that “reasoning by analogy” from a contemporary firearm regulation to historical regulation is a “commonplace task” for a lawyer or judge. But reasoning by analogy requires an analog. That is what Donohue’s testimony purports to provide.

    Randolph Roth

    Randolph Roth would testify that increased American homicide rates correlate with “political instability, a loss of trust in government and political leaders, a loss of fellow feeling among citizens, and a lack of faith in the justice of the social hierarchy.” He would also testify that “the availability of guns,” especially “rapid-fire semiautomatic weapons and extended magazines in the late twentieth century, have pushed the homicide rate in the United States well beyond what it would otherwise have been.” Roth also wished to address colonial firearm restrictions and the gradual development of firearm regulations.

    The Court held that Roth’s declaration demonstrated expertise in the history of violent crime and the relationship between “extended magazines” and the American homicide rate.

    Plaintiffs asserted that Roth’s testimony focused primarily on the rise in violence stemming from “breechloading” guns, and that his declaration failed to evince a “dramatic technological change” or “unprecedented societal concern.” The Court disagreed because Roth’s declaration traced homicide and mass killing rates as compared to advancing gun technology, and concluded that the advent of submachine guns led to increased threats to “public safety” and governmental regulation.

    Robert Spitzer

    Spitzer’s declaration stated that “[t]he current controversy surrounding legislative efforts to restrict large capacity magazines (LCMs) would seem to be a purely contemporary matter, responding to the modern phenomenon of mass shootings.” He would testify to the prevalence of assault weapon and LCM restrictions around the country. He would also state that “restrictions on LCMs are historically grounded.”

    With regard to waiting periods, Spitzer would testify that three features of the contemporary gun purchasing landscape explain the rise of gun purchase waiting periods. First, the rise of “mass production techniques” and “[r]paid, convenient, gun sales processes” are relatively new. Second, “no organized system of gun background checking could feasibly exist until the modern era.” And finally, “homicide rates in the colonies and early Federal era were generally low, and when homicides occurred, guns were seldom used because of the time involved in loading them, their unreliability, and (especially for pistols) their inaccuracy.” Additionally, Spitzer would testify that there are “similar, analogous historical gun laws” notwithstanding the lack of statutory waiting periods, such as “laws regulating weapons and intoxication, and weapons licensing laws.”

    The Court held that Spitzer’s proposed testimony was relevant considering analysis of the history of political response to gun-related problems is central to the Court’s mandate in this case.

    Rule 403 Objection

    Plaintiffs stated that the Court should exclude the State’s expert testimony as “more prejudicial than probative” under Federal Rule of Evidence 403. Plaintiffs have not supported this contention with any detail, so that request is denied. Additionally, because the Court concludes that the State’s experts are admissible, it need not hold a Daubert hearing.

    Held

    The Court denied the Plaintiffs’ motion to exclude the State’s expert witnesses Lucy Allen, Dennis Baron, John Donohue, Randolph Roth, Robert Spitzer.

    Key Takeaways:

    • The Court refrained from excluding Allen’s testimony on hearsay grounds because if expert testimony drawing statistical conclusions based upon database records were to be excluded as hearsay, nearly all expert testimony would be excluded.
    • Baron’s analysis of the historical understanding of the term “arms” is relevant considering the fact that having some magazine may be crucial to keeping and using a firearm says nothing about whether governments may impose outer limits on those magazines, which is the question before the Court.
    • Analysis of the history of political response to gun-related problems is central to the Court’s mandate in this case. Spitzer’s testimony deals with the history of American gun regulation, which is a verifiable issue of fact material to this litigation.
    • The risk of prejudice from overly broad testimony is substantially reduced because the Court is the finder of fact at this stage of litigation.

    Case Details:

    Case Caption: Vermont Federation Of Sportsmen’s Clubs Et Al V. Birmingham Et Al
    Docket Number: 2:23cv710
    Court Name: United States District Court, Vermont
    Date: May 14, 2024