Blackman v. City Chicago et al

Filing 126

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 1/27/2012:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BIANCA JORDAN, as Guardian of
DELBERT VAN ALLEN, a Minor,

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)
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Plaintiff,
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v.
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CITY CHICAGO, a municipal Corporation, )
Officer Thomas O’Shaughnessy
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(Star # 19271) and Officer
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Christopher Rigan (Star # 15589),
)
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Defendants.
)

Case No. 08 C 6902

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Plaintiff has moved to bar the testimony of Defendants’ expert, Mr. Richard Ernest,
pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993) and Federal Rules of Evidence 702, 402, and 403. Plaintiff has also moved in limine
to bar Mr. Ernest from using mannequins, and photographs of mannequins, at trial. For the
following reasons, the Court grants Plaintiff’s Daubert motion in part and denies it in part, and
denies Plaintiff’s motion in limine.
BACKGROUND
Plaintiff Bianca Jordan, as guardian of Delbert Van Allen, a minor, brought this lawsuit
based on an October 31, 2008 incident at 6922 South Aberdeen Street in Chicago, Illinois
involving Defendant Chicago Police Officers O’Shaughnessy and Rigan and the shooting of Van
Allen. (R. 50, Amend. Compl. ¶¶ 9-12.) She alleges that Van Allen, a minor, was at his
grandmother’s home in South Chicago on the night of October 31, when a police squad car

pulled up and stopped in front of the property. (Id. ¶ 9.) She further avers that Officers
O’Shaughnessy and Rigan got out of the car, chased Van Allen without legal justification, and
shot him three times without legal justification. (Id. ¶¶ 10-11.) The Complaint also alleges that
Officers O’Shaughnessy and Rigan falsely arrested Van Allen and maliciously prosecuted him.
(Id. ¶¶ 12-16.) Plaintiff brings excessive force, false arrest, malicious prosecution, assault, and
battery claims.
LEGAL STANDARD
I.

Admissibility of Expert Testimony
The admissibility of expert testimony is governed by Federal Rule of Evidence (“Rule”)

702 and the Supreme Court’s opinion in Daubert. Bielskis v. Louisville Ladder, Inc., 663 F.3d
887, 893 (7th Cir. Nov. 18, 2011). “The Federal Rules of Evidence define an ‘expert’ as a
person who possesses ‘specialized knowledge’ due to his ‘skill, experience, training, or
education’ that ‘will assist the trier of fact to understand the evidence or to determine a fact in
issue.’” Banister v. Burton, 636 F.3d 828, 831 (7th Cir. 2011) (quoting Fed. R. Evid. 702).
District courts must determine whether expert testimony is both relevant and reliable. Bielskis,
663 F.3d at 893. To do so, courts must “ascertain whether the expert is qualified, whether his or
her methodology is scientifically reliable, and whether the testimony will ‘assist the trier of fact
to understand the evidence or to determine a fact in issue.’” Id. (quoting Fed. R. Evid. 702); see
also Ortiz v. City of Chicago, 656 F.3d 523, 526 (7th Cir. 2011) (“[E]xpert testimony is
admissible if (1) the testimony is based on sufficient facts or data; (2) the testimony is the
product of reliable principles and methods; and (3) the witness has applied the principles and
methods reliably to the facts of the case.”). “The proponent of the expert bears the burden of

2

demonstrating that the expert’s testimony would satisfy the Daubert standard” by a
preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir.
2009).
As the Seventh Circuit instructs, “‘[t]he focus of the district court’s Daubert inquiry must
be solely on principles and methodology, not on the conclusions they generate.’” Winters v.
Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2007) (quoting Chapman v. Maytag Corp., 297 F.3d
682, 687 (7th Cir. 2002)). In assessing whether an expert’s testimony is reliable, Daubert lists a
number of considerations — including testing, peer review, error rates, and acceptability in the
relevant scientific community. Daubert, 509 U.S. at 593-94. The 2000 Advisory Committee’s
Notes to Rule 702 suggest additional criteria for gauging expert reliability, including whether:
(1) “maintenance standards and controls” exist; (2) the testimony relates to “matters growing
naturally and directly out of research they have conducted independent of the litigation,” or was
developed “expressly for purposes of testifying”; (3) “the expert has unjustifiably extrapolated
from an accepted premise to an unfounded conclusion”; (4) “the expert has adequately accounted
for obvious alternative explanations”; (5) “the expert is being as careful as he would be in his
regular professional work outside his paid litigation consulting”; and (6) “the field of expertise
claimed by the expert is known to reach reliable results for the type of opinion the expert would
give.” See Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005) (citations omitted),
vacated in part on other grounds, 448 F.3d 936 (7th Cir. 2000) (quoting Fed. R. Evid. 702
advisory committee’s note (2000)); see also Am. Honda Motor Co., Inc. v. Allen, 600 F.3d 813,
817 (7th Cir. 2010). “The goal of Daubert is to assure that experts employ the same ‘intellectual
rigor’ in their courtroom testimony as would be employed by an expert in the relevant field.”

3

Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting Kumho Tire Co., Ltd v.
Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).
The Supreme Court, however, has clearly stated that “the test of reliability is flexible, and
Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in
every case.” Kumho Tire, 526 U.S. at 141, 119 S. Ct. 1167 (internal quotation omitted). This is
especially true when the expert’s opinions are non-scientific in nature and do not follow
traditional scientific testing. “[T]he test for reliability for nonscientific experts is ‘flexible’ and
. . . Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or
in every case.” United States v. Romero, 189 F.3d 576, 584 (7th Cir. 1999) (quoting Kumho
Tire, 536 U.S. at 141). “[T]he law grants a district court the same broad latitude when it decides
how to determine reliability as it enjoys in respect to its ultimate reliability determination.”
Kumho Tire, 526 U.S. at 142 (emphasis in original); see also Ortiz, 656 F.3d at 536.
An expert may be qualified to render opinions based on experience alone. “In certain
fields, experience is the predominant, if not the sole basis for a great deal of reliable expert
testimony.” Advisory Committee Notes to Rule 702. The Seventh Circuit has stated repeatedly
that “genuine expertise may be based on experience or training.” United States v. Conn, 297
F.3d 548, 556 (7th Cir. 2002) (quoting Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir.
1996)). “[W]hile extensive academic and practical expertise in an area is certainly sufficient to
qualify a potential witness as an expert, Rule 702 specifically contemplates the admission of
testimony by experts whose knowledge is based on experience.” Trustees of Chicago Painters
and Decorators Pension, Health and Welfare, and Deferred Sav. Plan Trust Funds v. Royal Int’l
Drywall and Decorating, Inc., 493 F.3d 782, 787-88 (7th Cir. 2007) (citations and quotations

4

omitted); see also Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010)
(emphasis in original) (quoting Fed. R. Evid. 702). As such, courts “consider a proposed
expert’s full range of practical experience as well as academic or technical training when
determining whether that expert is qualified to render an opinion in a given area.” Trustees of
Chicago, 493 F.3d at 788 (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)).
II.

Motion in Limine
“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the

practice has developed pursuant to the district court’s inherent authority to manage the course of
trials.” Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In
limine rulings avoid delay and allow the parties the opportunity to prepare themselves and
witnesses for the introduction or exclusion of the applicable evidence. See Wilson v. Williams,
182 F.3d 562, 566 (7th Cir. 1999); United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).
Trial courts have broad discretion in ruling on evidentiary issues before trial. See United States
v. Chambers, 642 F.3d 588, 594 (7th Cir. 2011). Regardless of the Court’s initial ruling on a
motion in limine, the Court may adjust its ruling during the course of trial. See Farfaras v.
Citizens Bank & Trust of Chicago, 433 F.3d 558, 565 (7th Cir. 2006). The Court will only grant
a motion in limine when the evidence is clearly inadmissable for any purpose. See Jonasson v.
Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); Thakore v. Universal Mach.
Co. of Pottstown, Inc., 670 F. Supp.2d 705, 714 (N.D. Ill. 2009). The moving party bears the
burden of establishing that the evidence is not admissible for any purpose. See Mason v. City of
Chicago, 631 F. Supp.2d 1052, 1056 (N.D. Ill. 2009).

5

ANALYSIS
I.

Mr. Ernest’s Qualifications and Opinions
Defendants retained Mr. Ernest to examine the physical evidence in this case and to

perform a reconstruction of the shooting scene at issue. (R. 93, Ernest Report at 4.) Mr. Ernest
graduated from the University of Georgia in 1975 and has received training in forensic ballistics
and crime scene reconstruction, including, but not limited to, attending courses in “specialized
techniques in firearms identification” and “gunpowder and gunshot residue” at the Federal
Bureau of Investigation (“FBI”) Academy. (R. 117-1, Ernest Resume.) He has also attended
multiple courses on shooting scene reconstruction, including a crime scene investigation
workshop given by the Southwestern Association of Forensic Scientists, and shooting scene
reconstruction, trajectory analysis, and wound ballistics workshops given by the Association of
Firearm and Tool Mark Examiners. (Id.) Mr. Ernest was a Guest Lecturer at the FBI Academy
in 1996, where he gave a seminar on shooting scene reconstruction.
Since 2004, Mr. Ernest has served as the Laboratory Director at Alliance Forensics
Laboratory, Inc., where he directs daily laboratory operations. From 2000 to 2004, he was a
self-employed forensic consultant, specializing in firearms related services for the legal and
insurance industries. He offered varied services as a consultant, including those related to
firearms identification, shooting scene reconstruction, shooting accident investigations and
reconstructions, gun safety and design issues, toolmark examinations, crime scene examinations
and reconstructions, general criminalistics related determinations, gunshot residue issues, and
distance determination examinations. He has performed work for civil and criminal attorneys,
police departments, and district attorney offices. (Id.)

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Prior to his consulting work, Mr. Ernest served as the Firearms Section Supervisor at the
Georgia Bureau of Investigation Crime Laboratory and at the Tarrant County Medical
Examiner’s District’s Criminalistics Laboratories in Fort Worth, Texas. (Id.) His work in these
roles included, but was not limited to, examinations of shooting scenes, assisting medical
examiners with ballistics-related issues, teaching seminars to police, legal, medical and other
personnel on firearms-related topics, and testifying in court concerning his examinations. Before
that, Mr. Ernest worked for 13 years as a Senior Firearms Examiner at the Georgia Bureau of
Investigations Crime Laboratory in Atlanta, Georgia. (Id.)
Mr. Ernest renders several opinions in his expert report, but the following five specific
opinions are at issue in Plaintiff’s motion:
C

The “paintball pistol” is “capable of causing severe injury (evisceration of the eye
if fired at close range), and it is very similar visually in design to several well
known actual firearms which are favored in the criminal community . . . including
the Ingram MAC, Uzi, Intratec Tech 9, Claridge Hi-Tec and Calico pistols.” (R.
93, Ernest Report at 7.) Mr. Ernest also includes a photograph of the paintball
gun as well as photos of the “well known actual firearms which are favored in the
criminal community.” (Id.)

C

Van Allen’s “right arm was pointed back (or rearwards) towards Officer
O’Shaughnessy at the instant that” Officer O’Shaughnessy fired one of his shots
at Van Allen. (Id. at 8.)

Mr. Ernest’s report also contains several photographs of a mannequin, which he offers for
“demonstrative or illustrative purposes only.” (Id. at 9-12.)

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II.

Mr. Ernest’s Opinion that the Paintball Gun at Issue in This Case is “Capable of
Causing Severe Injury” is Inadmissible
Plaintiff argues that the Court should exclude Mr. Ernest’s opinion that the paintball gun

at issue in the case “is capable of causing severe injury” (the “Paintball Gun Opinion”) because
it is irrelevant, unreliable, is likely to confuse the jury and will cause unfair prejudice.1 (R. 93 at
3; R. 117 at 2-4.) As the proponents of the expert, Defendants bear the burden of demonstrating
that Mr. Ernest’s opinions are admissible under Daubert. See Lewis, 561 F.3d at 705.
Defendants offer three reasons why the Paintball Gun Opinion is relevant. First, they argue that
it will “help the jury understand what the officer was thinking, that this paintball gun pointed
towards them [sic] was capable of severely injuring them [sic], and that it was not a harmless toy
water gun.” (R. 101 at 13.) Second, they contend that it explains to the jury Van Allen’s state of
mind and motive in allegedly pointing the paintball gun at Officer O’Shaughnessy. (Id.) Third,
they argue that it is relevant to show the jury why Van Allen ran way from the officers. (Id.)
In excessive force cases, the fact-finder must determine “whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865,
104 L.Ed.2d 443 (1989); see also Common v. City of Chicago, 661 F.3d 940, 943 (7th Cir.
2011). The “objective reasonableness” standard “requires that a fact finder analyze whether the
1

Plaintiff raised her reliability argument (in addition to several other arguments) for the
first time in her reply brief. Normally, arguments raised for the first time on reply are waived
because the opposing party does not have a chance to respond to them. See Broaddus v. Shields,
--- F.3d ----, 2011 WL 6396542, at *11 (7th Cir. Dec. 21, 2011) (“[I]t is well established that
arguments waived for the first time in a reply brief are waived.”). Because the Court gave
Defendants the opportunity to respond to Plaintiff’s new arguments in a sur-reply, however, that
principle does not apply and the Court will consider the arguments raised in Plaintiff’s reply.
See, e.g., Moorehead v. Duetsche Bank AG, No. 11 C 106, 2011 WL 4496221, at *5 (N.D. Ill.
Sept. 26, 2011) (no waiver of arguments raised on reply where Court allowed sur-reply).
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officer’s actions are objectively reasonable in light of the facts and under the circumstances
confronting the officer at the time of the incident, without regard to the underlying motive or
intent of the officer, and without the benefit of hindsight.” Common, 661 F.3d at 943. As the
Seventh Circuit recently reaffirmed, “when evaluating the reasonableness of an officer’s actions,
the fact finder must do so with blinders on–viewing the circumstances and facts only as they
were known to the officer at the time.” Id.
A review of Officer O’Shaughnessy’s deposition testimony indicates that he believed that
Van Allen pointed a black and silver handgun, not a toy gun, at him on the night in question.
See R. 124-1, O’Shaughnessy Dep. at 64:15-65:1 (Q: “It was your belief that it was a firearm
that your partner had concluded that the offender still had in his possession; is that a fair
characterization of what you were thinking?” A: “I believe my partner was warning me and
letting me know that he was in fact armed; yes.” Q: “With a firearm?” A: “Yes” Q: “Firearm,
meaning not a toy; correct?” A: “Yes”); 97:2-4 (Q: “Describe what you saw Van Allen pointed
at you.” A: “A black handgun, black and silver.”). It was not until after the shooting that the
officers learned that the gun in Van Allen’s possession at or around the time of the shooting was
a paintball gun. As such, whether or not the paintball gun at issue is capable of causing serious
injury is irrelevant to what Officer O’Shaughnessy thought at or around the time of the shooting
because he did not believe, at that time, that Van Allen had a paintball gun on his person.
Defendants’ second relevancy argument–that the Paintball Gun Opinion will explain to
the jury that Van Allen pointed the paintball gun at the officers in order to cause severe
injury–likewise fails. First, Van Allen’s motive in allegedly pointing a paintball gun at Officer
O’Shaughnessy is irrelevant to what Officer O’Shaughnessy knew at the time of the shooting.

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See Sherrod, 856 F.2d at 805 (“only those circumstances known and information available to the
officer at the time of his action” are relevant in an excessive force case).2 The Court is also
unconvinced by Defendants’ final assertion that the Paintball Gun Opinion is relevant to explain
to the jury why Van Allen ran away from the officers. Based on the deposition testimony
submitted to the Court, it does not appear that the parties dispute that, at some point in the night,
Van Allen ran away from the officers. Moreover, Defendant O’Shaughnessy will testify at trial
that he believed Van Allen pointed a gun at him, which is sufficient to show why Van Allen ran
away from the officers. Therefore, the Paintball Gun Opinion is not necessary for the jury to
make such a determination. See Fed.R.Evid. 702(a) (expert testimony is relevant if it helps the
jury “determine a fact in issue”).
The Paintball Gun Opinion also does not meet Daubert’s reliability requirement. The
sum total of Mr. Ernest’s opinion regarding the dangerousness of the paintball gun at issue is
stated in half of a sentence: “The paintball pistol itself, which has been described in the case
record as a “toy” is capable of causing severe injury (evisceration of the eye if fired at close
range). . . .” (R. 93 at 7.)3 Mr. Ernest does not explain any basis for his opinion. See United
States v. Noel, 581 F.3d 409, 497 (7th Cir. 2009) (“an expert’s opinion that lacks proper
substantiation is ‘worthless’”) (citing Minasian v. Standard Chtd. Bank, 109 F.3d 1212, 1216
2

The Seventh Circuit in Sherrod recognized two exceptions to this general rule,
including where the evidence bears on the officer’s capacity to observe, remember ,or narrate
and where the evidence can be used to impeach a witness by demonstration contradictions in his
testimony. Id. at 806. Defendants have failed to demonstrate that either of these exceptions
apply here.
3

Plaintiff argues in a footnote in her reply brief that the Court should bar Mr. Ernest
from referring to the paintball gun as a “pistol” because such terminology is inaccurate,
misleading, and inflammatory. (R. 117 at 4, n.1.) The Court declines to strike such testimony
because the term “paintball pistol” is not any more inflammatory than the term “paintball gun.”
10

(7th Cir. 1997)); Huey v. United Parcel Serv., Inc., 165 F.3d 1084, 1087 (7th Cir. 1999)
(“providing only an ultimate [expert] conclusion with no analysis is meaningless”) (citing
Minasian Standard, 109 F.3d at 1216)). Defendants’ argument that Mr. Ernest’s “30+ years of
experience as a firearms expert” provides a reliable basis for his Paintball Gun Opinion misses
the mark. Nowhere in Mr. Ernest’s resume or report does he point to any experience working
with paintball guns, as opposed to actual firearms. Moreover, even if Mr. Ernest has experience
assessing the dangerousness of paintball guns, he has failed to explain how that experience
compels his conclusion that paintball guns can cause severe injury. Although an expert may
base his opinions on his experience, he must nevertheless explain how the application of his
prior experience to the facts of the case compels his conclusion. See Crawford Supply Grp., Inc.
v. Bank of Am., N.A., No. 09 C 2513, 2011 WL 4840965, at *3 (N.D. Ill. Oct. 12, 2011); see also
Fed.R.Evid. 702 Advisory Committee Notes (“If the witness is relying solely or primarily on
experience, then the witness must explain how that experience leads to the conclusion reached,
why that experience is a sufficient basis for the opinion, and how that experience is reliably
applied to the facts. The trial court’s gatekeeping function requires more than simply “taking the
expert’s word for it.”). Because the Paintball Gun Opinion is not sufficiently reliable, it is
inadmissible.4
III.

Portions of Mr. Ernest’s Opinion Regarding the Design of the Paintball Gun, as
Well as the Gun Photographs, May Be Admissible
Plaintiff next contends that the Court should exclude Mr. Ernest’s opinion that the

4

Because Mr. Ernest’s opinion is inadmissible under Rule 702, the Court need not
consider Plaintiff’s argument under Rule 403. See, e.g., Hill v. City of Chicago, No. 06 C 6772,
2011 WL 2550623, at *6 (N.D. Ill. June 27, 2011) (declining to consider alternative ground for
exclusion after determining that exclusion of testimony was appropriate on another ground).
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paintball gun at issue “is very similar visually in design to several well known actual firearms
which are favored in the criminal community . . . including the Ingram MAC, Uzi, Intratec Tech
9, Claridge Hi-Tec and Calico pistols” (the “Gun Design Opinion”) because that opinion is
irrelevant, unreliable, and will invade the province of the jury. (R. 93 at 3; R. 117 at 4.)
Relatedly, Plaintiff argues that the Court should exclude the two photographs found on page 7 of
Mr. Ernest’s report–one of the paintball gun at issue in this case and the other of several “wellknown” firearms (collectively, the “Gun Photographs”)–because they are irrelevant, unreliable,
and likely to confuse the jury and cause unfair prejudice. (R. 93 at 3; R. 117 at 4.) According to
Plaintiff, Mr. Ernest has articulated no basis for his conclusion that the weapons depicted in the
firearm photograph (#1-B) are “favored in the criminal community” and he has not defined the
“criminal community” to which he refers. (R. 117 at 4.) She also contends that Mr. Ernest’s
opinion impermissibly invades the province of the jury, which is capable of viewing either
accurate photographs or the actual guns themselves and drawing their own conclusions as to the
similarity of the firearms and the paintball gun. (Id. at 4-5.)
Defendants argue that the Design Opinion and the Gun Photographs are “necessary for
the jury to understand what was going through the police officers’ minds when they saw the
paintball gun” and therefore will help the jury to assess the reasonableness of the officers’
actions. (R. 101 at 14.) They posit that without seeing the photographs, the jury may not
understand that the black and silver paintball gun, which they contend Plaintiff will refer to as a
“toy gun” throughout trial, indeed looks like a deadly weapon, especially in the dark. (Id.)

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The portion of the Gun Design Opinion regarding whether certain firearms are “favored
in the criminal community” is inadmissible. Mr. Ernest offers no basis, let alone a reliable one,
for this portion of the opinion, nor does he define the “criminal community” to which he refers.
See Noel, 581 F.3d at 497; Huey, 165 F.3d at 1087. His vast experience with firearms does not,
on its own, render this opinion admissible; rather, he must explain how his experience compels
his conclusion that the specified firearms are favored in the criminal community, which he has
failed to do. See Crawford Supply, 2011 WL 4840965 at *3 (“An expert witness cannot merely
present his qualifications alongside his opinion; he must explain why the application of his prior
experience to the facts at hand compel[s] his final conclusions.”) (citing Metavante, 619 F.3d at
761)).
With respect to the remainder of the Gun Design Opinion and the Gun Photographs, the
Court agrees with Defendants that such testimony is relevant. Whether the paintball gun looks
like certain actual firearms is directly relevant to whether Officer O’Shaughnessy acted
reasonably in light of the facts and circumstances known to him at the time. Graham, 490 U.S.
at 397. Moreover, if Mr. Ernest is able to opine as to the specific features of the guns which
make them appear so similar, as Defendants argue, the jury would benefit from hearing expert
testimony on this issue because the average juror is not familiar with the specific details of the
design of the Ingram MAC, Uzi, Intratec Tech 9, Claridge Hi-Tec and Calico pistols.
The parties, however, have failed to provide the Court with sufficient information to
allow the Court to make an admissibility determination regarding the remainder of the Gun
Design Opinion and the Gun Photographs. Defendants argue that Mr. Ernest’s testimony will
help “explain the features of the guns which make them appear so similar,” but Mr. Ernest offers

13

no such explanation in his report. Moreover, the gun photos in Mr. Ernest’s report submitted to
the Court do not assist in the Court’s determination because they are very dark photocopies in
which it is virtually impossible to see the details of the guns or their designs. Compounding this
difficulty is the fact that neither party deposed Mr. Ernest, and therefore the Court is confined to
the four corners of Mr. Ernest’s report and resume in determining whether to admit this opinion.
Accordingly, the Court orders a limited hearing regarding the portion of Mr. Ernest’s
Gun Design Opinion that the Court has not already stricken, as well as the Gun Photographs, so
that the Court can further explore the basis for, and the specifics of, this opinion. If Mr. Ernest is
only able to offer a “bottom line” that the paintball gun looks similar to firearms he identifies, his
opinion will not be helpful to the jury. See United States v. Hall, 93 F.3d 1337, 1343 (7th Cir.
1996) (noting that “[u]nless the expertise adds something, the expert at best is offering a
gratuitous opinion, and at worst is exerting undue influence on the jury that would be subject to
control under Rule 403” and that “[c]onclusory statements without any explanation why the
expert can contribute to the jury’s understanding of the subject are also subject to exclusion”)
(citation omitted); Hoffman v. Caterpillar, Inc., 368 F.3d 709, 714 (7th Cir. 2004) (affirming
district court’s exclusion of an expert’s opinion based upon a videotape because “the videotape
could be played for the jury and entered into evidence, and consequently, jurors could make a
determination for themselves . . . . Based upon this independent assessment . . . the jury could
then draw [its own] inferences . . . and expert testimony would be of no help.”); Aponte v. City of
Chicago, No. 09-CV-8082, 2011 WL 1838773 (N.D. Ill. May 12, 2011) (“[E]xpert testimony
does not assist the trier of fact when the jury is able to evaluate the same evidence and is capable
of drawing its own conclusions without the introduction of a proffered expert’s testimony.”). If,

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however, Mr. Ernest is able to apply his expertise to the specific facts of this case and use his
expertise to explain how the paintball gun is designed in the same way as actual firearms, the
jury will benefit from his testimony.
IV.

Mr. Ernest’s Opinion That Van Allen’s Arm Was Pointed Backwards in the
Direction of Officer O’Shaughnessy When One of the Shots Hit Van Allen Is
Admissible
Plaintiff also seeks to exclude Mr. Ernest’s opinion that Van Allen’s arm was pointed

backwards in the direction of O’Shaughnessy when one of the shots O’Shaughnessy fired struck
Van Allen’s arm (the “Van Allen Opinion”) on the basis that it is unreliable, speculative, and
will not assist the jury because it does not corroborate Officer O’Shaughnessy’s testimony. (R.
93 at 4; R. 117 at 5.) Specifically, Plaintiff asserts that Officer O’Shaughnessy “cannot identify
where he was in relation to Van Allen when Van Allen is said to have pointed the paintball gun
at him,” and therefore, Mr. Ernest should not be allowed to testify that Van Allen’s arm was
pointed rearwards in the direction of Officer O’Shaughnessy. (Id.) Plaintiff further argues that
the Van Allen Opinion is unreliable because Mr. Ernest admits that he does not know the order
in which the bullets hit Van Allen, and therefore he has no idea whether any movement of Van
Allen’s arm was voluntary or in response to being shot. (Id.)
Defendants respond that as a reconstruction expert, Mr. Ernest “does not need to agree or
corroborate the defendant’s statement as to what happened.” (R. 101 at 16.) They further argue
that the Van Allen Opinion is based on facts and reconstruction science and is therefore not
speculative. (Id.)

15

The Court agrees with Defendants that Mr. Ernest’s Van Allen Opinion is not
inadmissible merely because it does not mirror Officer O’Shaughnessy’s version of what
happened on the night in question.5 Plaintiff is correct that expert testimony must be “factually
linked” to the case in order to survive a Daubert challenge, see United States v. Gallardo, 497
F.3d 727, 733 (7th Cir. 2007), but a review of Mr. Ernest’s report indicates that his opinion is
indeed factually linked to this case. Specifically, Mr. Ernest’s Van Allen opinion is based on,
among other things, his review and examination of the black hooded jacket that Van Allen wore
on the night of the shooting (and the positioning of the bullet holes in that jacket) as well as the
photographs and x-rays of Van Allen’s bullet wounds. See R. 93, Ernest Report at 8. Moreover,
Mr. Ernest considered and rejected alternative possibilities of the positioning of Van Allen’s
arm. See 2000 Advisory Committee Notes to Fed.R.Evid. 702 (one of the bases for gauging the
reliability of an expert opinion is whether “the expert has adequately accounted for obvious
alternative explanations”).6
As Plaintiff notes, Mr. Ernest freely admits that he could not determine the order in
which the bullets hit Van Allen, but this concession does not doom Mr. Ernest’s opinion.
Rather, Plaintiff is free to explore this concession, as well as any inconsistencies between Mr.
Ernest’s Van Allen Opinion and other witnesses’ testimony, through vigorous cross examination
5

It does not appear from the limited deposition testimony the parties submitted to the
Court that Mr. Ernest’s opinion contradicts Officer O’Shaughnessy’s testimony. If it does,
however, that raises a problem for Defendants, not the Plaintiff.
6

Mr. Ernest further explained in his report that his “examination and laboratory testing
conducted in conjunction with this case is performed in accordance with standard practices in the
field using protocols which are used in forensic laboratories across the country.” (Id. at 13.)
Additionally, the laboratory where he works is an ASCLD-LAB (American Society of Crime
Laboratory Directors - Laboratory Accreditation Board) accredited laboratory, and adheres to
standard testing protocols.” (Id.)
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at trial.
See Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”); Metavante, 619 F.3d at 762 (“[d]etermination on
admissibility should not supplant the adversarial process; shaky expert testimony may be
admissible, assailable by its opponents through cross-examination”) (quoting Gayton v. McCoy,
593 F.3d 610, 616 (7th Cir. 2010)).
V.

Mr. Ernest May Use the Mannequin in His Testimony Regarding Bullet Trajectory
Finally, Plaintiff seeks to exclude, pursuant to Rules 702, 402 and 403, “all evidence

referencing or relating to the mannequin shown in Ernest’s Report” on the ground that Mr.
Ernest is not qualified to render opinions regarding bullet trajectory and that the mannequin is
irrelevant, highly prejudicial and grossly misleading.7 (R. 117 at 6-7.) Plaintiff complains that
the mannequin’s arm does not replicate the size of Van Allen’s arm and that because Mr. Ernest
cannot determine the position of Van Allen’s gun at the time the first shot was fired, the
trajectory analysis and the use of the mannequin are unreliable and likely to confuse the jury.
Plaintiff also points out that the photo of the mannequin seems to show that the mannequin’s arm
is facing toward the side, and not towards the back as indicated in Mr. Ernest’s report.
Moreover, Plaintiff argues that using a standstill mannequin is inappropriate because Officer
O’Shaughnessy testified that Van Allen was running at the time he was shot. Defendants
7

As discussed in Section II(C) of this Order, Mr. Ernest sets forth a reliable basis for his
trajectory opinions in his report, and he based his findings on a review of the “background
documentation provided [to him], the physical evidence and the testing” he performed. See R.
93, Ernest Report at 13. As discussed previously, Plaintiff’s argument that Mr. Ernest’s opinions
are unreliable because they do not corroborate Officer O’Shaughnessy’s recollection of the
events is unpersuasive, and Plaintiff is free to cross examine Mr. Ernest about that fact at trial.
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respond that Mr. Ernest’s use of the mannequin is for “demonstrative use–to put Van Allen’s
clothing on it to show the probable positioning of his body, and the trajectory of the bullets.” (R.
101 at 16.) Defendants maintain that the mannequin will not confuse the jury and will indeed
assist it in understanding the context of Mr. Ernest’s testimony.
A simple review of Mr. Ernest’s resume demonstrates that Plaintiff’s argument that Mr.
Ernest is not qualified to render opinions on bullet trajectory has no merit. In his position as
Senior Firearms Examiner at the Georgia Bureau of Investigations Crime Laboratory and as
Firearms Section Supervisor at the Tarrant County Medical Examiner’s District’s Criminalistics
Laboratories, which collectively encompass twenty-six years of Mr. Ernest’s career, his duties
included examining shooting scenes, including determining angles, shooting distances, and recreations of the shooting incidents. (R. 117-1, Ernest Resume.) Moreover, in his role as a selfemployed forensic consultant, he performed shooting scene reconstructions and shooting
accident investigations and reconstructions. (Id.) He also attended a trajectory analysis
workshop in 1995, in addition to attending several shooting scene reconstruction workshops and
lecturing regarding that topic at the FBI Academy. (Id.) Based on Mr. Ernest’s training and
significant experience in shooting scene reconstruction, which necessarily involves bullet
trajectory analysis, he is qualified to render opinions on bullet trajectory in this case.
Having determined that Mr. Ernest’s trajectory opinions are admissible under Rule 702,
Mr. Ernest is free to use the mannequin and the photographs of the mannequin in the report at
trial for demonstrative purposes. Mr. Ernest’s trajectory testimony is technical, and the use of
the mannequin will assist the jury in understanding it. Plaintiff is free to explore her concerns
with the scale of the mannequin and the inconsistencies between the positioning of the

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mannequin and Officer O’Shaughnessy’s testimony during cross-examination. These issues go
to the weight of Mr. Ernest’s testimony and thus are more appropriate issues for the jury.
Moreover, Plaintiff may use the mannequin at trial to attempt to dispel Mr. Ernest’s theory.
CONCLUSION
For the reasons set forth above, the Court grants in part and denies in part Plaintiff’s
motion to exclude the expert testimony of Mr. Richard Ernest and denies Plaintiff’s motion in
limine. The Court will hold a limited hearing on March 5, 2012 at 10:00 a.m. regarding the Gun
Photographs and the portions of Mr. Ernest’s Gun Design Opinion that the Court has not already
stricken.
Date: January 27, 2012
ENTERED

_______________________________
AMY J. ST. EVE
United States District Court Judge

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