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Dasho v. City of Fed. Way

United States District Court, W.D. Washington

April 27, 2015

CITY OF FEDERAL WAY, et al., Defendants

Page 1026

For Jonathan Dasho, Plaintiff: Jeffrey Hutten Tyler, MCKAY HUFFINGTON & TYLER, BELLEVUE, WA; Timothy R Lohraff, LAW OFFICE OF TIMOTHY LOHRAFF, P.S., SEATTLE, WA.

For City of Federal Way, Officer Kelly Smith, Officer Steven Wortman, Defendants: Ann E Trivett, Daniel Patrick Kenny, Robert Leslie Christie, Thomas P Miller, CHRISTIE LAW GROUP PLLC, SEATTLE, WA; J. Ryan Call, CITY OF FEDERAL WAY, FEDERAL WAY, WA.

Page 1027


JAMES L. ROBART, United States District Judge.


Before the court is Defendants City of Federal Way, Officer Kelly Smith, and Officer Steven Wortman's (" Defendants" ) renewed motion to exclude expert witnesses. (2d Mot. (Dkt. # 62).) Defendants seek to exclude the testimony of Plaintiff Jonathan Dasho's proposed expert witnesses Kay Sweeney and D.P. Van Blaricom. ( Id. at 1.) The court has reviewed Defendants' motion, all submissions filed in support of and opposition thereto, the relevant portions of the record, and the applicable law. Being fully advised, the court grants in part and denies in part Defendants' motion. Specifically, the court excludes as unreliable the opinions of Mr. Sweeney related to the sequence of gunshots and the movements of Mr. Dasho. The court does not, however, exclude any other aspects of Mr. Sweeney's expert testimony as described below. The court also excludes as irrelevant the opinions of Mr. Van Blaricom regarding the specific use of force in this case. Finally, the court denies Defendants' motion as it pertains to Mr. Van Blaricom's proposed testimony on general police practices and standards.


This litigation arises out of an encounter between Mr. Dasho and Officers Smith and Wortman that occurred on August 19, 2009. ( See Wortman Decl. (Dkt. # 42) ¶ 3, Ex. A (" Wortman Report" ) at 1; 1st Resp. (Dkt. # 43) at 2 (citing State v. Dasho, 171 Wash.App. 1030, at *1 (Wash. Ct.App. 2012)).) On that night, neighbors reported a disturbance at Mr. Dasho's apartment. (1st Resp. at 2 (citing Dasho, 171 Wash.App. at *1).) Officers Smith and Wortman responded to that call and demanded to be let into the apartment. ( Id. ; Wortman Report at 1-2.) Jared Dasho, Mr. Dasho's brother, let the officers into the apartment where Mr. Dasho lay naked on the living room floor. (1st Resp. at 2 (citing Dasho, 171 Wash.App. at *1).) As the officers entered the living room, Mr. Dasho jumped up, ran into the kitchen, and grabbed a blunt-tipped knife out of a drawer. ( Id. ; see Wortman Report at 2.) Ignoring commands from the officers to stop, Mr. Dasho exited the kitchen and entered the living room at a rapid pace with the knife raised over his head. (1st Resp. at 2 (citing Dasho, 171 Wash.App. at *1); Miller Decl.

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(Dkt. # 40) ¶ 3, Ex. A at 3.) Each officer shot Mr. Dasho multiple times. ( See Wortman Report at 2; Smith Decl. (Dkt. # 41) ¶ 3, Ex. A (" Smith Report" ) at 2; 1st Resp. at 2 (citing Dasho, 171 Wash.App. at *1).) A state court jury convicted Mr. Dasho of two counts of third degree assault. Dasho, 171 Wash.App. at *2.

On August 20, 2012, Mr. Dasho filed the instant action, in which he alleges that Officers Smith and Wortman used excessive force against him in violation of his constitutional rights. ( See Compl. (Dkt. # 1).) To support this allegation, Mr. Dasho proposes to call expert witnesses, including the two witnesses at issue here--Kay Sweeney and D.P. Van Blaricom. ( See Disc. of Expert Wit. (Dkt. # 32) at 3-5.) Mr. Dasho offers Mr. Sweeney as an expert in forensic science ( id. at 4), and Mr. Van Blaricom as an expert in police practices ( id. at 3).

Mr. Sweeney intends to testify that after entering the living room Mr. Dasho likely did not continue moving toward the officers, as they claim he did. ( See Disc. of Expert Wit. Ex. F (" Sweeney Report" ) at 8.) Having examined Mr. Dasho's apartment, police reports, the physical evidence from the scene, and medical records ( see 1st Resp. at 3; Sweeney Report at 2-8), Mr. Sweeney offers an alternative version of events that is quite specific. According to Mr. Sweeney, Mr. Dasho most likely turned away from the officers upon entering the living room and moved north along the living room wall, then turned back toward the kitchen when fired upon, was hit multiple times while moving toward the kitchen, and finally fell down into the space between the kitchen and living room as the officers continued to fire at him. (Sweeney Report at 8-9.) In offering these opinions, Mr. Sweeney purports to be able to identify the sequence of shots fired--particularly, the first and second shots and the rough sequence of the remaining shots--as well as Mr. Dasho's movements in the moments leading up to and during the shooting. ( See id. )

Mr. Van Blaricom proposes to testify regarding police practices. ( See Disc. of Expert Wit. at 3, Ex. A (" Van Blaricom Report" ); 1st Resp. at 4.) In forming his opinions, Mr. Van Blaricom has examined police reports, Mr. Sweeney's report, portions of the trial testimony from Mr. Dasho's assault trial, Federal Way Police Department use of force policies, and National Law Enforcement Center policies on the use of force and the investigation of officer-involved shootings. (Van Blaricom Report at 1-2.) Mr. Dasho explains that Mr. Van Blaricom will educate the jury on general principles and offer an opinion in response to hypothetical questions. ( See 1st Resp. at 10-12).

Defendants initially moved to exclude the opinions of Mr. Sweeney and Mr. Van Blaricom on September 11, 2014. (1st Mot. (Dkt. # 39).) In that motion, Defendants argued that Mr. Sweeney's opinions are inadmissible because his conclusions regarding the sequence of shots and Mr. Dasho's movements are not based on sufficient data and constitute conjecture and speculation. ( See id. at 10-11.) They further contended that Mr. Van Blaricom's opinions are also inadmissible because they are not offered on a more-probable-than-not basis and because Mr. Van Blaricom's expert report fails to give adequate notice of the opinions he plans to offer in this case. ( See id. at 12; 1st Reply (Dkt. # 50) at 5-6.) The court denied Defendants' first motion, not on the merits, but due to a lack of information in the record regarding Mr. Sweeney's and Mr. Van Blaricom's proposed testimony. ( See 11/4/14 Order (Dkt. # 58).)

To support a more informed decision, the court ordered Mr. Dasho to supplement the record with filings providing (1) a

Page 1029

clear and detailed description of Mr. Sweeney's methods, why those methods are reliable in precisely reconstructing the scene of a shooting, and how Mr. Sweeney applied those methods to this case; and (2) a clear and detailed description of the hypothetical questions that Mr. Dasho proposes to ask Mr. Van Blaricom, the opinions that Mr. Van Blaricom will offer in response, the principles about which Mr. Van Blaricom will testify, and any further information useful to the court in evaluating Mr. Van Blaricom's testimony under Federal Rule of Evidence 702. ( See id. at 7-9.) The court gave Mr. Dasho over 40 days to file this submission and authorized Defendants to conduct discovery and refile their motion to exclude thereafter. ( See id. at 9-10.)

Mr. Dasho responded to the court's order on December 15, 2014, with a 10-page memorandum and four exhibits, three of which contain the transcript of Mr. Sweeney's testimony in Mr. Dasho's criminal trial. ( See Mem. (Dkt. # 61); id. Ex. 1 (" 1st Crim. Trans." ), Ex. 2 (" 2d Crim. Trans." ), Ex. 3 (" 3d Crim. Trans." ).)[1] Mr. Dasho's memorandum summarizes Mr. Sweeney's qualifications, briefly describes aspects of Mr. Sweeney's methodology, and directs the court to the criminal trial transcript to see how Mr. Sweeney reliably applied his methods to the facts of this case. ( See Mem. at 2-6.) The memorandum also provides several hypothetical questions that Mr. Dasho wishes to ask Mr. Van Blaricom along with Mr. Van Blaricom's expected answers and a description of some of the principles about which Mr. Van Blaricom will testify. ( See id. at 7-9.)

As the court authorized, Defendants have refiled their motion to exclude Mr. Sweeney's and Mr. Van Blaricom's opinions. ( See 2d Mot.) Defendants argue in their renewed motion that Mr. Dasho's supplemental filings have not satisfied the court's previous order. ( Id. at 1-2.) It remains unclear, they contend, what methods Mr. Sweeney used to establish a sequence of shots and reconstruct Mr. Dasho's movements and whether those methods are reliable. ( See id. at 5-8.) In addition, Defendants argue that Mr. Van Blaricom's opinions still have not been adequately ...

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