Mitchell et al v. Flagstaff, City of et al

Filing 78

ORDER granting Plaintiffs' 52 Motion to substitute expert witness; denying Plaintiffs' 67 Motion for order to release and transfer custody of evidence for inspection and non-destructive testing. Signed by Judge Frederick J Martone on 6/19/12.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ruth Bradburn Mitchell, individually and)
as personal representative of the Estate of)
Kenneth Mitchell; Kenneth Christopher)
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Mitchell,
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Plaintiffs,
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vs.
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City of Flagstaff; Roy Taylor; Jane Doe)
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Taylor,
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Defendants.
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CV 11-08140-PCT-FJM
ORDER

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The court has before it plaintiffs' motion to substitute expert witness (doc. 52),
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defendants' response (doc. 61), and plaintiffs' reply (doc. 69). We also have before us
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plaintiffs' motion for order to release and transfer custody of evidence for inspection and non20

destructive testing (doc. 67), defendants' response (doc. 73), and plaintiffs' reply (doc. 74).1

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I
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This action arises out of the shooting of Kenneth Mitchell, plaintiffs' husband and
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father, by Officer Taylor of the Flagstaff Police Department. Plaintiffs engaged James Serpa
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as an expert witness in November 2011. Our Rule 16 scheduling order, issued in December
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2011, set plaintiffs' expert disclosure deadline as April 20, 2012 (doc. 25). On April 5, 2012,
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Both parties failed to comply at various points with this Court's two-page limit on
discovery motions, responses, and replies (doc. 25 at 3).

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plaintiffs contacted defendants to request that certain physical evidence (bullets and a

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shotgun recovered from the scene) be shipped to Serpa's office for inspection and testing.

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Defendants denied the request on April 6, 2012, indicating that the evidence would only be

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available for inspection and testing at the Flagstaff Police Department. Next, plaintiffs sent

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a formal request for production of the items pursuant to Rule 34, Fed. R. Civ. P., which was

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also denied. In the meantime, the parties arranged for Serpa's inspection of the evidence at

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the Flagstaff Police Department on April 16, 2012. Defendants' expert arrived at the

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Flagstaff Police Department on April 16, 2012 and, using his own equipment, tested the

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evidence. Serpa, however, did not show up.

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Serpa’s expert report, which is dated April 18, 2012 and was timely disclosed, states

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that because he has "not had the opportunity to conduct non-destructive examinations of the

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physical evidence in this case," he is "unable to render any conclusions or opinions in the

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matter." Resp. to Mot. to Substitute, ex. K at 1. Plaintiffs have continued to request release

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of the evidence to their expert, requests which defendants have refused, citing chain of

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custody issues and Flagstaff Police Department protocol.

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unexpectedly quit on May 2, 2012.

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In the meantime, Serpa

II

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Plaintiffs have identified a new expert, Ronald Scott, and move for his substitution

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as expert witness. Defendants oppose the request. They argue that the motion is an attempt

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to circumvent the scheduling order, because Scott will effectively be permitted to disclose

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new expert opinions after the deadline, in violation of our Rule 16 scheduling order.

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Defendants argue that Serpa’s expert report is deficient under Rule 26(a)(2)(B), Fed. R. Civ.

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P. because it does not contain opinions, conclusions, results, or data. Thus, they argue that

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Scott’s testimony should be barred under Rule 37(c)(1), Fed. R. Civ. P.

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The issue of whether or not Scott’s opinions will be admissible is a separate issue

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from whether or not he should be permitted to substitute in for the now-absent Serpa.

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Because there is no motion to exclude expert opinions pursuant to Rule 37(c)(1) before us,

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our discussion of whether a failure to sufficiently disclose opinions was substantially justified
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or harmless would be premature. Defendant does not dispute, however, that Serpa's abrupt

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abandonment of this case was out of plaintiffs' control. Under these circumstances, we find

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that plaintiffs should be permitted to substitute Ronald Scott as their expert witness, and will

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grant plaintiffs' motion to substitute. This ruling should not be construed, however, as an

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indication as to whether any of Scott’s expert opinions will be admissible.

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III

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Plaintiffs move for a second time for the release and transfer of custody of evidence

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to their expert for inspection and non-destructive testing pursuant to Rule 37, Fed. R. Civ.

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P.2 Their counsel's communications attached to the motion argue that plaintiffs' expert

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requires the evidence to be released to him for testing at his own facility using his own

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equipment, and that travel to Flagstaff for inspection and testing would be inconvenient and

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expensive. See Mot. for Release, ex. G. Defendants oppose the request. They argue that

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they have substantially complied with plaintiffs' requests by making the evidence available

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for testing at the Flagstaff Police Department, including an offer for plaintiffs' expert to bring

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his own equipment for testing. Defendants offer an affidavit from a sixteen-year veteran of

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the Flagstaff Police Department, who cannot remember any time when evidence was released

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to a non-government entity for testing, and that such an action would be inconsistent with

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department procedure. Resp. to Mot. for Release, ex. D.

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Plaintiffs argue that defendants' opposition is unjustified because their expert is

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qualified to properly handle and transport the evidence. That may be the case. However,

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plaintiffs have not persuasively established why the release of evidence to their expert is

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necessary. It was plaintiffs' choice to retain an expert outside of Flagstaff. And plaintiffs

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have not explained why permitting their expert to bring his own equipment to the police

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department for testing would be insufficient, other than vague assertions that the equipment

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might be damaged if moved, and that the equipment at the police department is "likely"

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Plaintiffs' first request was denied on April 18, 2012 for failure to comply with
LRCiv 7.2(j) (doc. 47).
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insufficient. Moreover, defendants state (and plaintiffs have not rebutted) that police

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department policy for chain of custody prevents the transfer of evidence to non-government

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entities. Accordingly, we deny plaintiffs' motion for release and transfer.

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IV

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IT IS ORDERED GRANTING plaintiffs' motion to substitute expert witness (doc.

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52). IT IS FURTHER ORDERED DENYING plaintiffs' motion for order to release and

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transfer custody of evidence for inspection and non-destructive testing (doc. 67).

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DATED this 19th day of June, 2012.

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