United States District Court, W.D. Washington, Tacoma
ANDRE THOMPSON, a single man; and BRYSON CHAPLIN, a single man, Plaintiffs,
CITY OF OLYMPIA, a local government entity; and RYAN DONALD and “JANE DOE” DONALD, individually and the marital community comprised thereof, Defendants.
ORDER ON PLAINTIFFS' MOTION TO EXCLUDE
EXPERT'S OPINIONS DKT. # 50
B. LEIGHTON, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiffs Andre Thompson and
Bryson Chaplin's Motion to Exclude Expert's Opinions.
Dkt. # 50. This case concerns a shooting that occurred in
Olympia in the early morning hours of May 21, 2015, by the
side of a road. Defendant Ryan Donald, a police officer,
stopped Plaintiffs on suspicion of shoplifting and assault.
From there, the parties' accounts diverge; Donald has
testified that he shot Thompson and Chaplin only after they
attacked him, while Plaintiffs maintain that they simply ran
away and were pursued by Donald.
have retained Louis Cheng, a biomechanical engineer, to
provide expert testimony at trial. Much of Cheng's
opinions on the case derive from a reenactment of the May 21
incident by Officer Donald, which Cheng captured and
digitally rendered using his 3-D camera. Plaintiffs now seek
to exclude Cheng's opinions related to these graphics,
arguing that they are not based on any reliable scientific
methodology or theory.
following reasons, Plaintiffs' Motion is GRANTED.
April 20, 2019 report, Cheng states that he is
“specialized in the field of accident reconstruction,
injury biomechanics and motion analysis of the human
body.” Dkt. # 51, Ex. A, at 1. Cheng obtained his PhD
in structural engineering and mechanics from U.C. Berkeley,
has published numerous papers on biomechanics, and has worked
in both the private sector and academia. Dkt. # 55, Ex. A. He
describes his assigned task in this case as
“perform[ing] a motion analysis, accident
reconstruction, and biomechanical analysis of the May 21,
2015 incident.” Dkt. # 51, Ex. A, at 1.
Cheng states that he reviewed numerous materials in the case,
Cheng concluded that he could not accurately reconstruct the
parties' physical movements on May 21 based on this
alone. Consequently, he decided to stage a reenactment
orchestrated by Donald himself. The reenactment was performed
at the scene of the incident using a stand-in vehicle and two
of Donald's fellow police officers. Dkt. # 55 at 5.
Kenton S. Wong, Defendants' forensics expert, was also
present. Defendants utilized a training firearm and
skateboards similar to Thompson and Chaplin's.
Id. Rather than direct Donald's movements, Cheng
emphasizes that he allowed Donald to control the stand-ins
and reenact his own movements from memory. Cheng then
captured the action in “five separate motion
sequences” using his 3-D camera. The sequences are
titled: “initial charging, ” “first
encounter, ” “struggle, ” “attack
near bushes, ” and “Thompson shooting.”
Dkt. # 51, Ex. A, at 7-9.
capturing the images using his 3-D camera, Cheng turned the
resulting “point cloud data” into digitized 3-D
images. Id. at 10-13. These images depict the five
sequences and include labels for the different parties and
physical evidence at the scene. Id. at 13-19. While
the body positions in the first three sequences are
apparently based on Donald's reenactment alone, Cheng
states that the last two are also based on physical evidence
such as blood stains. Dkt. # 51, Ex. A, at 18. Cheng's
report and declaration go on to describe the graphics and
make a number of conclusions about the accuracy of
Donald's account and how it relates to the physical
Rule 702, a witness may provide expert testimony if:
“(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b)
the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods;
and (d) the expert has reliably applied the principles and
methods to the facts of the case.” Fed.R.Civ.P. 702.
“District judges play an active and important role as
gatekeepers examining the full picture of the experts'
methodology and preventing shoddy expert testimony and junk
science from reaching the jury.” Murray v. S. Route
Mar. SA, 870 F.3d 915, 923 (9th Cir. 2017).
Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert
I), the Supreme Court interpreted the requirements of
Rule 702. The Court first determined that an expert's
opinion must be reliable-i.e., an expert may only testify
about knowledge “derived from the scientific
method” and must avoid “subjective belief or
unsupported speculation.” 509 U.S. 579, 590 (1993);
see also Kumho Tire Co. v. Carmichael, 526 U.S. 137,
141, 148 (1999) (holding that a court's obligation to
ensure expert reliability also applies for technical, rather
than scientific, expert testimony). A theory or technique may
be “scientific” if it can be peer-tested, has
been subjected to peer review, has an acceptable rate of
error, and is generally accepted in the relevant scientific
community. Id. at 593-94. However, the Rule 702
analysis is “flexible” and “[i]ts
overarching subject is the scientific validity . . . of the
principles that underlie a proposed submission.”
Daubert I, 509 U.S. at 594-95.
“very significant fact to be considered is whether the
experts are proposing to testify about matters growing
naturally and directly out of research they have conducted
independent of the litigation, or whether they have developed
their opinions expressly for purposes of testifying.”
Daubert v. Merrell Dow Pharm., Inc. (Daubert II), 43
F.3d 1311, 1317 (9th Cir. 1995). A party whose expert
testimony is not based on independent research “must
come forward with other objective, verifiable evidence that
the testimony is based on scientifically valid
principles.” Id. at 1317-18 (internal
the Court explained that an expert's opinion also must be
“assist the trier of fact to understand or determine a
fact in issue.” Daubert I, 509 U.S. at 592. In
other words, the proffered testimony is only admissible if it
“logically advances a material aspect of the proposing
party's case.” Daubert II, 43 F.3d at
1315. For example, an expert's vague assertions about a
“statistically significant relationship between [a
drug] and birth ...