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Thompson v. City of Olympia

United States District Court, W.D. Washington, Tacoma

August 16, 2019

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.




         THIS 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.

         Defendants 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.

         For the following reasons, Plaintiffs' Motion is GRANTED.


         In his 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.

         Although 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.

         After 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 evidence.


         Under 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).

         In 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.

         Another “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 quotation omitted).

         Second, 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 ‚Äústatistically significant relationship between [a drug] and birth ...

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