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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 DORCAS GITHINJI and JASON CASE NO. C22-5138 MJP SHRIVER, 11 ORDER GRANTING IN PART Plaintiffs, AND DENYING IN PART 12 PLAINTIFFS’ MOTION TO v. EXCLUDE 13 OLYMPIA POLICE DEPARTMENT, 14 et al., 15 Defendants. 16
17 This matter comes before the Court on Plaintiffs’ Motion to Exclude. (Dkt. No. 76.) 18 Having reviewed the Motion, the Response (Dkt. No. 82), the Reply (Dkt. No. 85), and all 19 supporting materials, the Court GRANTS in part and DENIES in part the Motion. 20 BACKGROUND 21 This case arises out of an incident at Plaintiffs’ home that led to the arrest of Plaintiff 22 Jason Shriver and the detention of his wife, Plaintiff Dorcas Githinji, by the Olympia Police 23 Department (OPD). With the dismissal of excessive force claims, the case focuses on a claim 24 1 that OPD and the named officer defendants lacked probable cause to arrest Shriver and detain 2 Githinji. Plaintiffs argue that the sole disputed factual issue is whether OPD officers witnessed 3 Shriver “strike” or “imprison” Githinji when they investigated a possible domestic violence- 4 related 911 call. (Mot. at 2.) As Plaintiffs argue, if the OPD officers “did witness a crime, then
5 there is no dispute they properly followed procedure and arrested [Shriver]” but if not, “then 6 [OPD officers] violated the Fourth Amendment as a matter of law.” (Id.) Plaintiffs concede that 7 OPD officers had probable cause to investigate the 911 domestic-violence call. (Id.) 8 Against this background, Plaintiffs seek to exclude two of Defendants’ experts under 9 Rules 402, 403, and 702. The Court briefly reviews the expert reports at issue. 10 First, Colleen Wilson opines on whether the Defendant OPD officers responded in a 11 manner consistent with “their operating procedures and with Washington State Law as well as 12 the training provided to law enforcement officers in Washington.” (Dkt. No. 68-5 at 7.) Wilson’s 13 report also contains many observations and commentary about the weight of the evidence. (Id. at 14 5-7.) In response to Plaintiffs’ Motion, Defendants state they “will not be calling Colleen Wilson
15 during trial” and asks the Court to find the Motion moot as to her report. Plaintiffs refuse to 16 concede the issue is moot, and ask the Court to exclude Wilson from providing any opinions in 17 the case. 18 Second, Chris Nielsen provides four distinct opinions. He opines that a reasonable police 19 officer facing the same circumstances as Defendants faced: (1) had probable cause to investigate 20 the 911 call (Dkt. No. 68-8 at 27-28); (2) had probable cause to arrest Shriver for unlawful 21 imprisonment and assault in the fourth degree (id. at 28-29); (3) had probable cause to seek a 22 search warrant to facilitate the arrest of Shriver (id. at 29-30); and (4) had probable cause to call 23 the Thurston County Sherriff’s Office SWAT team (id. at 30-31). The Court notes that Plaintiffs
24 1 do not dispute that Defendants had probable cause to investigate the 911 call. (Mot. at 2; Reply 2 at 2-3.) 3 ANALYSIS 4 A. Legal Standards
5 The Court briefly reviews the evidentiary standards at issue. 6 Under Rule 702, “[a] witness who is qualified as an expert by knowledge, skill, 7 experience, training, or education may testify in the form of an opinion or otherwise if”: (1) the 8 technical or specialized knowledge will help the trier of fact understand the evidence; (2) the 9 expert testimony is “based on sufficient facts or data”; (3) “the testimony is the product of 10 reliable principles and methods”; and (4) “the expert has reliably applied the principles and 11 methods to the facts of the case.” Fed. R. Evid. 702. To assess an expert’s reliability, “the trial 12 judge must determine whether the testimony has ‘a reliable basis in the knowledge and 13 experience of [the relevant] discipline.’” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 14 (1999) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993)). “Rule 702
15 contemplates a broad conception of expert qualifications.” Hangarter v. Provident Life & Acc. 16 Ins. Co., 373 F.3d 998, 1015 (9th Cir. 2004) (quotation and citation omitted). “[F]ar from 17 requiring trial judges to mechanically apply the Daubert factors—or something like them—to 18 both scientific and non-scientific testimony, Kumho Tire heavily emphasizes that judges are 19 entitled to broad discretion when discharging their gatekeeping function.” United States v. 20 Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000). 21 Additionally, the Court may exclude evidence that is irrelevant under Rule 402. And the 22 Court may exclude evidence whose probative value is substantially outweighed by the danger of 23 unfair prejudice under Rule 403.
24 1 B. Motion Moot as to Wilson 2 The Court agrees with Defendants that the Motion as to Wilson is moot given 3 Defendants’ concession not to call Wilson at trial. The Court understands Plaintiffs’ concern that 4 Defendants have not expressly “formally withdrawn” Wilson’s opinions in full. (Reply at 1.) But
5 the Court does not share Plaintiffs’ concern. The Court construes Defendants’ concession that 6 Wilson will not testify at trial as a concession that her opinions shall not be used for any reason 7 in this case. The Court will hold Defendants to that concession, which moots the Motion. No 8 further relief is necessary where Wilson and her opinions will not be used in this action. On this 9 basis the Court DENIES the Motion as MOOT. 10 C. The Court Excludes Nielson’s Report 11 The Court agrees with Plaintiffs that Nielson’s opinions must be excluded. 12 An expert may generally testify about the procedures, policies, and standards used by law 13 enforcement. See Davis v. Mason Cnty., 927 F.2d 1473, 1484–85 (9th Cir. 1991) (testimony of 14 police practices expert was admissible). And Federal Rule of Evidence 704(a) clarifies that “[a]n
15 opinion is not objectionable just because it embraces an ultimate issue.” But “expert witness 16 cannot give an opinion as to [their] legal conclusion, i.e., an opinion on an ultimate issue of law.” 17 Hangarter, 373 F.3d at 1016 (9th Cir. 2004). “[W]hen an expert undertakes to tell the jury what 18 result to reach, this does not aid the jury in making a decision, but rather attempts to substitute 19 the expert’s judgment for the jury’s.” See United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 20 2017) (quotation omitted). As concerns this case, a jury, not an expert, must decide whether 21 officers had “probable cause” to perform an arrest. See Torres v. Los Angeles, 548 F.3d 1197, 22 1214 n.11 (9th Cir. 2008) (district court abused its discretion when it allowed defense expert to 23 testify that there was probable cause to arrest the plaintiff). And the risk of usurping the jury’s
24 1 role is particularly acute when the expert seeks to testify using terms with “specialized meaning 2 in law” and where he adds his own subjective view of the disputed evidence surrounding the 3 incident. See Diaz, 876 F.3d at 1199.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 DORCAS GITHINJI and JASON CASE NO. C22-5138 MJP SHRIVER, 11 ORDER GRANTING IN PART Plaintiffs, AND DENYING IN PART 12 PLAINTIFFS’ MOTION TO v. EXCLUDE 13 OLYMPIA POLICE DEPARTMENT, 14 et al., 15 Defendants. 16
17 This matter comes before the Court on Plaintiffs’ Motion to Exclude. (Dkt. No. 76.) 18 Having reviewed the Motion, the Response (Dkt. No. 82), the Reply (Dkt. No. 85), and all 19 supporting materials, the Court GRANTS in part and DENIES in part the Motion. 20 BACKGROUND 21 This case arises out of an incident at Plaintiffs’ home that led to the arrest of Plaintiff 22 Jason Shriver and the detention of his wife, Plaintiff Dorcas Githinji, by the Olympia Police 23 Department (OPD). With the dismissal of excessive force claims, the case focuses on a claim 24 1 that OPD and the named officer defendants lacked probable cause to arrest Shriver and detain 2 Githinji. Plaintiffs argue that the sole disputed factual issue is whether OPD officers witnessed 3 Shriver “strike” or “imprison” Githinji when they investigated a possible domestic violence- 4 related 911 call. (Mot. at 2.) As Plaintiffs argue, if the OPD officers “did witness a crime, then
5 there is no dispute they properly followed procedure and arrested [Shriver]” but if not, “then 6 [OPD officers] violated the Fourth Amendment as a matter of law.” (Id.) Plaintiffs concede that 7 OPD officers had probable cause to investigate the 911 domestic-violence call. (Id.) 8 Against this background, Plaintiffs seek to exclude two of Defendants’ experts under 9 Rules 402, 403, and 702. The Court briefly reviews the expert reports at issue. 10 First, Colleen Wilson opines on whether the Defendant OPD officers responded in a 11 manner consistent with “their operating procedures and with Washington State Law as well as 12 the training provided to law enforcement officers in Washington.” (Dkt. No. 68-5 at 7.) Wilson’s 13 report also contains many observations and commentary about the weight of the evidence. (Id. at 14 5-7.) In response to Plaintiffs’ Motion, Defendants state they “will not be calling Colleen Wilson
15 during trial” and asks the Court to find the Motion moot as to her report. Plaintiffs refuse to 16 concede the issue is moot, and ask the Court to exclude Wilson from providing any opinions in 17 the case. 18 Second, Chris Nielsen provides four distinct opinions. He opines that a reasonable police 19 officer facing the same circumstances as Defendants faced: (1) had probable cause to investigate 20 the 911 call (Dkt. No. 68-8 at 27-28); (2) had probable cause to arrest Shriver for unlawful 21 imprisonment and assault in the fourth degree (id. at 28-29); (3) had probable cause to seek a 22 search warrant to facilitate the arrest of Shriver (id. at 29-30); and (4) had probable cause to call 23 the Thurston County Sherriff’s Office SWAT team (id. at 30-31). The Court notes that Plaintiffs
24 1 do not dispute that Defendants had probable cause to investigate the 911 call. (Mot. at 2; Reply 2 at 2-3.) 3 ANALYSIS 4 A. Legal Standards
5 The Court briefly reviews the evidentiary standards at issue. 6 Under Rule 702, “[a] witness who is qualified as an expert by knowledge, skill, 7 experience, training, or education may testify in the form of an opinion or otherwise if”: (1) the 8 technical or specialized knowledge will help the trier of fact understand the evidence; (2) the 9 expert testimony is “based on sufficient facts or data”; (3) “the testimony is the product of 10 reliable principles and methods”; and (4) “the expert has reliably applied the principles and 11 methods to the facts of the case.” Fed. R. Evid. 702. To assess an expert’s reliability, “the trial 12 judge must determine whether the testimony has ‘a reliable basis in the knowledge and 13 experience of [the relevant] discipline.’” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 14 (1999) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993)). “Rule 702
15 contemplates a broad conception of expert qualifications.” Hangarter v. Provident Life & Acc. 16 Ins. Co., 373 F.3d 998, 1015 (9th Cir. 2004) (quotation and citation omitted). “[F]ar from 17 requiring trial judges to mechanically apply the Daubert factors—or something like them—to 18 both scientific and non-scientific testimony, Kumho Tire heavily emphasizes that judges are 19 entitled to broad discretion when discharging their gatekeeping function.” United States v. 20 Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000). 21 Additionally, the Court may exclude evidence that is irrelevant under Rule 402. And the 22 Court may exclude evidence whose probative value is substantially outweighed by the danger of 23 unfair prejudice under Rule 403.
24 1 B. Motion Moot as to Wilson 2 The Court agrees with Defendants that the Motion as to Wilson is moot given 3 Defendants’ concession not to call Wilson at trial. The Court understands Plaintiffs’ concern that 4 Defendants have not expressly “formally withdrawn” Wilson’s opinions in full. (Reply at 1.) But
5 the Court does not share Plaintiffs’ concern. The Court construes Defendants’ concession that 6 Wilson will not testify at trial as a concession that her opinions shall not be used for any reason 7 in this case. The Court will hold Defendants to that concession, which moots the Motion. No 8 further relief is necessary where Wilson and her opinions will not be used in this action. On this 9 basis the Court DENIES the Motion as MOOT. 10 C. The Court Excludes Nielson’s Report 11 The Court agrees with Plaintiffs that Nielson’s opinions must be excluded. 12 An expert may generally testify about the procedures, policies, and standards used by law 13 enforcement. See Davis v. Mason Cnty., 927 F.2d 1473, 1484–85 (9th Cir. 1991) (testimony of 14 police practices expert was admissible). And Federal Rule of Evidence 704(a) clarifies that “[a]n
15 opinion is not objectionable just because it embraces an ultimate issue.” But “expert witness 16 cannot give an opinion as to [their] legal conclusion, i.e., an opinion on an ultimate issue of law.” 17 Hangarter, 373 F.3d at 1016 (9th Cir. 2004). “[W]hen an expert undertakes to tell the jury what 18 result to reach, this does not aid the jury in making a decision, but rather attempts to substitute 19 the expert’s judgment for the jury’s.” See United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 20 2017) (quotation omitted). As concerns this case, a jury, not an expert, must decide whether 21 officers had “probable cause” to perform an arrest. See Torres v. Los Angeles, 548 F.3d 1197, 22 1214 n.11 (9th Cir. 2008) (district court abused its discretion when it allowed defense expert to 23 testify that there was probable cause to arrest the plaintiff). And the risk of usurping the jury’s
24 1 role is particularly acute when the expert seeks to testify using terms with “specialized meaning 2 in law” and where he adds his own subjective view of the disputed evidence surrounding the 3 incident. See Diaz, 876 F.3d at 1199. 4 The Court here finds that Nielsen’s opinions should be excluded for several reasons.
5 First, Nielson’s expert report is not helpful to the jury because no expert is needed for the jury to 6 decide the purely factual issue of what was seen or not seen by the officers. In his report, Nielson 7 bases his opinions on his own view of disputed facts, for example, that: (1) Shriver was 8 “physically preventing [Githinji] from leaving the residence” (Report at 19); (2) Shriver 9 “prevented his wife from exiting” the home (Report at 26); (3) Shriver “attempted to forcefully 10 prevent [Githinji] from cooperating” with the Officers (Report at 26); and (4) Githinji was 11 “timid, scared, and afraid” of Shriver (Report at 27 (quotation omitted)). Nielsen’s opinions all 12 intrude on the role of the jury to determine what happened during the encounter with the Officers 13 and determine whether there was probable cause to perform the arrest and detention at issue. See 14 Torres, 548 F.3d at 1214 n.11. This determination requires weighing the evidence and making an
15 ultimate judgment as to credibility of the witnesses and a review of all of the facts surrounding 16 the Officers’ response at Plaintiffs’ residence. Nielsen’s report and opinions try to make those 17 determinations for the jury, which is improper and, more importantly, unhelpful. Rule 702 18 applies squarely to exclude these unhelpful opinions that improperly intrude on the jury’s 19 exclusive role in this case. See Diaz, 876 F.3d at 1197. Second, Nielson’s first opinion is no 20 longer relevant. Plaintiffs concede there was probable cause to investigate the 911 call and the 21 decision to call the SWAT team is not relevant given the dismissal of the excessive force claims. 22 On these two independent bases, the Court GRANTS the Motion and EXCLUDES Nielson’s 23 report and any of his opinions from this action.
24 1 CONCLUSION 2 Though the Court GRANTS in part and DENIES in part Plaintiffs’ Motion, the Court 3 effectively finds that both of Defendants’ expert witnesses may not present their opinions in this 4 case. First, Defendants have withdrawn Wilson as an expert this case. For this reason, the Court
5 DENIES the Motion as MOOT as to Wilson. Second, Nielson’s report impermissibly provides 6 opinions on issues that the jury alone must make, and on one issue that is not relevant. The Court 7 excludes Nielson under Rule 702 and Rule 402 (in part), and GRANTS the Motion as to Nielson. 8 The clerk is ordered to provide copies of this order to all counsel. 9 Dated January 31, 2024. A 10 11 Marsha J. Pechman United States Senior District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24