Expert Witness Profiler

Tag: Shooting

  • Human Factors Expert Lacks Expertise in the Context of Officer-Involved Shooting

    Human Factors Expert Lacks Expertise in the Context of Officer-Involved Shooting

    Essentially, this case involves a civil rights and state tort claim stemming from the fatal shooting of Mickel Lewis, Sr., by Kern County Sheriff Deputy Jason Ayala on October 2, 2020. Therefore, the central legal question is whether Deputy Ayala’s use of deadly force was justified.

    Consequently, the Plaintiffs have filed a motion to exclude the testimony of the defense’s human factors expert, Michael J. Kuzel, arguing he lacks the necessary expertise to analyze police shooting scenarios. Specifically, they contended that Kuzel’s qualifications regarding police practices and training are insufficient, citing his lack of relevant certifications, recent publications, and studies specific to law enforcement shootings.

    Human Factors Expert Witness

    Michael Kuzel has a bachelor’s degree in Bioengineering from Arizona State University, a master’s degree in Industrial Engineering (with an emphasis in Human Factors Industrial Engineering) from Arizona State University, and a second master’s degree in Applied Psychology (with an emphasis in Human Factors Sensation of Perception) from Arizona State University.

    Kuzel indicates that he has investigated and evaluated cases as a reconstruction, injury biomechanics, and human factors expert, and that he has completed a forty-hour Force Science Analyst course offered by Force Science.

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

    Discussion by the Court

    Kuzel’s “Human Factors” Report

    Kuzel analyzed the shooting incident based on provided discovery materials, including witness depositions and the Plaintiffs’ complaint. He claims his conclusions are scientifically sound. Kuzel’s report details his observations, asserting that Mickel Lewis, Sr.’s actions led Deputy Ayala to believe he posed a threat, potentially armed. Kuzel also opines on the sequence of shots, suggesting the first two struck Lewis, Sr. in the chest. His final conclusions support the defense, stating that Ayala’s perception of danger was reasonable, that Lewis, Sr.’s movements indicated he was retrieving a weapon, that Ayala had less than a second to react, and that his use of force was justified.

    Plaintiff’s Objections

    The Plaintiffs in this civil rights and state tort action have lodged a strong challenge against the qualifications of Michael J. Kuzel, the defense’s proffered “human factors” expert. Their central argument rests on the assertion that Kuzel lacks the requisite expertise to provide credible testimony concerning perception/reaction time, risk analysis, and other human factors specifically within the context of a police shooting.

    They highlight the absence of licenses or certifications related to police practices or training, a crucial deficiency when evaluating the actions of law enforcement officers. Furthermore, they emphasize Kuzel’s lack of recent publications or studies directly addressing officer-involved shootings, questioning his practical understanding of the unique stressors and decision-making processes involved. The Plaintiffs contend that Kuzel’s qualifications regarding law enforcement responses are “exceedingly thin,” effectively disqualifying him from offering expert opinions on this specialized subject.

    The Plaintiffs challenge the scientific reliability of Kuzel’s opinions. His assertions regarding Deputy Ayala’s stress response, perception of threat, and decision-making process lack a clearly defined and supported methodology. While Kuzel provides a summary of relevant literature, he fails to adequately connect his opinions to specific methodologies or bridge the gap between the literature and his conclusions.

    Defendant’s Counterarguments

    The Defendants assert Kuzel’s expertise in “human factors,” defined as the study of human abilities, limitations, behaviors, and processes. However, a significant discrepancy arises between this general expertise and the specific opinions presented in Kuzel’s report. He ventures into areas well beyond the scope of general human factors, opining on the trajectory of bullets, the likely impact points on the deceased’s body, and the interpretation of body movements in relation to gunshot wounds. The Court ruled that the Defendants failed to provide any justification for Kuzel’s qualifications in these specialized areas, particularly in forensic analysis and wound ballistics. Opinions regarding the correlation between bullet wound locations and body movements, such as a counterclockwise turn, clearly require specialized expertise that Kuzel demonstrably lacks.

    The Defendants’ stance has shifted throughout the proceedings. Initially, Kuzel’s report presented a wide range of conclusions and opinions. However, in their opposition to the Plaintiffs’ motion and during the hearing, the Defendants conceded that Kuzel is not a police practices expert and that many of his conclusions fell outside his area of expertise. They now assert that his testimony will be limited to human perception and reaction time under stress. However, even within this narrowed scope, the Plaintiffs maintain that the Defendants have failed to establish Kuzel’s relevant qualifications and experience.

    The “Certifications and Trainings” section of Kuzel’s curriculum vitae reveals no training or certification related to the use of force, and his publications primarily focus on automobile, bicycle, and pedestrian collisions, or trip hazards, none of which involve officer-involved shootings. Furthermore, the Defendants have not demonstrated that Kuzel has previously testified as a human factors expert in police shooting cases.

    Analysis

    Without a transparent and scientifically sound methodology, the Court is unable to assess the reliability of Kuzel’s opinions regarding the “human factors” that may have influenced Deputy Ayala’s actions.

    Held

    The Court  granted the Plaintiffs’ motion in limine to exclude Defendants’ expert Michael J. Kuzel.

    Key Takeaways:

    • Expert Witness Qualifications are Critical: Specifically, this case underscores the importance of rigorously scrutinizing the qualifications of expert witnesses, particularly in cases involving complex issues like police use of force. However, general expertise in a field does not automatically qualify an expert to opine on highly specialized subtopics.
    • Methodology Must Be Transparent and Reliable: Ultimately, expert opinions must be grounded in sound and transparent methodologies. In contrast, a mere summary of literature without a clear connection to the expert’s conclusions is insufficient.

    Case Details:

    Case Caption: Mickel E. Lewis Jr. Et Al V. Kern County Et Al
    Docket Number: 1:21cv378
    Court: United States District Court, California Eastern
    Order Date: March 13, 2025
  • 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
  • Crime Scene Reconstruction Expert Witness Allowed to Testify Because He Did Not Base His Conclusion on Physiology

    Crime Scene Reconstruction Expert Witness Allowed to Testify Because He Did Not Base His Conclusion on Physiology

    This matter stems from an incident which constituted an officer-involved shooting (sometimes referred to as “OIS”). On January 15, 2019, Defendant Oliver Simmonds was an Atlanta Police Department (“APD”) Officer operating in a plain clothes capacity as a member of the Department’s Executive Protection Unit (“EPU”). Simmonds was driving an unmarked APD vehicle. Simmonds stopped to get fuel at a gas station located at 490 Whitehall Street in downtown Atlanta.

    While pumping gas Simmonds left the door unlocked. Simmonds left the smart key in the vehicle, which permits it to be started, if not already running, and driven. Plaintiffs’ son, D’Ettrick Griffin, got into the vehicle and started to drive away in an apparent attempt to steal it; Simmonds grabbed the door handle, D’Ettrick yelled something to Simmonds; and Simmonds did not say anything to D’Ettrick.

    Simmonds chased after the car, drew a pistol that he was carrying in the waistband of his pants, and fired twice striking D’Ettrick in the back once and killing him. D’Ettrick was not armed, though the Parties dispute whether Simmonds actually knew this; Simmonds told responding officers at the scene that D’Ettrick had a gun. 

    The City filed a motion to exclude Plaintiffs’ crime scene reconstruction expert, Scott Roder while Plaintiff filed a motion to exclude the testimony of Ken Katsaris.

    Crime Scene Reconstruction Expert Witness

    Scott G. Roder has consulted on over 1,000 cases in the united states and internationally and has been qualified numerous times as as expert in the field of forensic evidence analysis, shooting and crime scene reconstruction and forensic animation. His work involves a variety of matters including; officer involved shootings, edged weapons, suicide investigations, strangulations and hangings, medical and surgical reconstructions, motor vehicle accidents, workplace injuries, criminal matters involving the death penalty, police pursuits, personal injury litigation, and more.

    Get the full story on challenges to Scott G. Roder’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Scott Roder issued five opinions in this case:

    1. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, the deceased was shot after he completed his left turn and was on the straight away.

    2. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, its in NOT likely that Officer Simmonds shot Griffin whilst in the left U-turn maneuver. If this had in fact been the case, we would expect that Griffin would not be able to complete the turn and manipulate the vehicle to come straight and accelerate the distance of approx. 330 + feet before the vehicle impact with other cars and coming to a stop.

    3. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, the gunshot wound that Griffin sustained is consistent with a forward seated orientation.

    4. Based on the physical and forensic evidence and to a reasonable degree of scientific probability, if the gunshot wound occurred during the left U-turn maneuver, we would expect a different body position for Griffin, namely leaned over towards the front passenger seat. The forces at work; centrifugal, momentum, and the gunshot wound all pushing Griffin to the right side of the passenger’s compartment.

    5. At this time, there is no physical, forensic, or photographic evidence that Officer Simmonds was attached to the vehicle or his jacket was closed in the door or that his foot was run over. Should that evidence become available for inspection, we reserve the right to amend opinion.

    City’s Objections

    The City raised four objections to the proposed opinions. First, the City argued that Roder’s opinions are contradicted by the record. But the City does not even attempt to tie this argument to the Daubert standard.

    Second, the City argued that Roder’s fourth opinion, “that Griffin was not shot during the u-turn because the bullet’s path through the body does not show that Griffin was leaning to the right, which he would have been during the u-turn,” is not reliable.

    Third, the City contended that Roder’s second opinion contains medical conclusions, which are outside of the scope of Roder’s qualifications.

    Analysis

    The Court agreed with Plaintiffs that the City’s reliability concerns do not rise to a level necessitating exclusion, instead only going to weight. The City can challenge the weight of the testimony through cross examination as well as through its own expert who is prepared to rebut Roder’s conclusion.

    Moreover, Roder clarified in his deposition that he did not base his conclusion on physiology, but based it on the empirical evidence typically relied upon by others in his field.

    The Court lastly turns to Roder’s “opinion” that there was no evidence that Simmonds’s jacket was closed in the door. The Court has already held that Simmonds’s testimony that his jacket was stuck in the door of the vehicle does not present a genuine or material dispute of fact precluding summary judgment on Plaintiffs’ Fourth Amendment claim, and therefore any testimony on this point would likely be moot. But, in the event this case is tried and either Defendant appears likely to put forth evidence or argument about the jacket, the Parties may revisit this issue.

    Held

    The Court denied the Defendant City of Atlanta’s motion to exclude Plaintiffs’ expert Scott Roder.

    Key Takeaway:

    City contended that Roder’s second opinion consisted of a conclusion about the physiological effects of D’Ettrick’s injuries. Out of context, the Court can see how a reasonable reader would conclude that this statement of what D’Ettrick could or could not do was a medical opinion, and Roder’s expert material provide no evidence of medical training or education that would lay a foundation for such opinions. However, Roder clarified in his deposition that he did not base his conclusion on physiology, but based it on the empirical evidence typically relied upon by others in his field.

    Since Roder’s materials do not provide a foundation for medical opinions, and in the event this matter is tried, the Court is prepared to supervise Roder’s testimony to ensure it does not veer into medical testimony.

    Case Details:

    Case Caption: Glover Et Al V. City Of Atlanta Et Al
    Docket Number: 1:20cv4302
    Court: United States District Court, Georgia Northern
    Order Date: September 17, 2024