Andersen v. City of Chicago et al

Filing 649

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 4/13/2020. Andersen's motion to exclude the testimony of Dr. Warren 392 is granted in part and denied in part. Andersen's motion to exclude Dr. Warren's undisclosed opinions 449 is also granted in part and denied in part. See Opinion for further details. Mailed notice(lk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL ANDERSEN,
Plaintiff,
v.
THE CITY OF CHICAGO, et al.,
Defendants.

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No. 16 C 1963
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiff Daniel Andersen was convicted of the murder and attempted rape of
Cathy Trunko and spent over twenty-five years in prison. In 2015, Andersen’s
conviction was reversed, and he received a Certificate of Innocence. Andersen
proceeded to sue the City of Chicago and various members of Chicago law
enforcement involved in the case. (Dkt. 1). Andersen alleges violations of his
constitutional rights, pursuant to 42. U.S.C. § 1983, and several state-law claims.
The Court assumes familiarity with the facts of this case, as the Court recently
provided a detailed background in Andersen v. City of Chicago, No. 16 C 1963, 2019
WL 6327226 (N.D. Ill. Nov. 26, 2019). In summary, in January 1980, Trunko died
after being stabbed. A few days after her death, Chicago Police recovered a knife near
the scene that they believed to be the murder weapon. In the week following Trunko’s
death, Andersen was arrested on a disorderly conduct charge and was questioned
about Trunko. Andersen eventually confessed to killing Trunko—a confession that
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he says was coerced. Andersen proceeded to a jury trial, where he was convicted of
the murder and attempted rape of Trunko. Andersen remained in custody from the
time of his arrest in 1980 through trial, and up until his release from prison in April
2007. In August 2015, Andersen’s conviction was reversed, and in December 2015,
he was granted a Certificate of Innocence by the Circuit Court of Cook County.
Andersen has moved to exclude the proposed testimony of Joseph Warren, one
of Defendants’ DNA experts. (Dkt. 392). The Court held a hearing on the motion on
December 5, 2019. (Dkt. 441). For the following reasons, the motion is denied, with
a few limited exceptions described herein.
Andersen also moved post-hearing to exclude previously undisclosed opinions
Dr. Warren offered at the hearing. (Dkt. 449). For the reasons described herein, that
motion is granted in part and denied in part.
LEGAL STANDARD
“The admissibility of expert testimony is governed by Federal Rule of Evidence
702 and the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th
Cir. 2009). Trial judges act as gatekeepers to screen expert evidence for relevance
and reliability. Daubert, 509 U.S. at 589; see also C.W. ex rel. Wood v. Textron, Inc.,
807 F.3d 827, 834 (7th Cir. 2015). Under Rule 702, a “witness who is qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form
of an opinion” if the following conditions are satisfied:

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(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. Evid. 702. In other words, “the key to the gate is not the ultimate correctness
of the expert’s conclusions. . . , it is the soundness and care with which the expert
arrived at her opinion.” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th
Cir. 2013).

In evaluating the expert’s proposed testimony, the Court should

“scrutinize proposed expert witness testimony to determine if it has the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field so
as to be deemed reliable enough to present to a jury.” Lapsley v. Xtek, Inc., 689 F.3d
802, 805 (7th Cir. 2012) (internal quotation marks omitted).
The Court utilizes a three-part analysis when applying the Daubert framework
to proposed Rule 702 evidence. The Court determines (1) “whether the witness is
qualified”; (2) “whether the expert’s methodology is scientifically reliable”; and (3)
“whether the testimony will assist the trier of fact to understand the evidence or to
determine a fact in issue.” Myers v. Illinois Cent. R. Co., 629 F.3d 639, 644 (7th Cir.
2010) (internal quotation marks omitted); see also Gopalratnam v. Hewlett-Packard
Co., 877 F.3d 771, 779 (7th Cir. 2017). The expert’s proponent bears the burden of
demonstrating that the testimony would satisfy the Daubert standard by a

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preponderance of the evidence. See Gopalratnam, 877 F.3d at 782; see also Fed. R.
Evid. 702 advisory committee’s note to 2000 amendment.
DISCUSSION
Dr. Warren was retained by Defendants to explain the risks of DNA
contamination and degradation and to discuss how such factors may have impacted
the evidence in this case. 1 Andersen moved to bar Dr. Warren’s opinions because
they are not based on a proper scientific methodology and would not aid the jury.
I.

Qualifications
Andersen does not challenge Dr. Warren’s qualifications to testify as an expert

in DNA contamination and degradation. Dr. Warren’s qualifications are provided in
his report, and his experience spans decades. (Dkt. 393-1 at 3–4). Dr. Warren holds
multiple degrees in biology from reputable institutions. He has been on the faculty
of the University of North Texas Health Science Center since 2002, where he teaches
courses in forensic genetics. Prior to that, he worked at multiple law enforcement
and private laboratories. He is a member of multiple organizations in the field and
also conducts workshops in the field. The Court finds him qualified to offer testimony
as a DNA expert.
II.

Reliability & Application of Methodology
Andersen challenges the reliability of Dr. Warren’s methodology and opinions.

Dr. Warren’s report begins by providing a background of trace DNA and the fact that

Defendants describe Dr. Warren as opining that the DNA samples examined here were rendered
unreliable and explaining why Andersen’s and Trunko’s DNA profiles are not found on some of the
evidence. (Dkt. 409 at 2). This is an overstatement of the opinions Dr. Warren actually rendered.
1

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it is possible to contaminate crime-scene evidence with extraneous DNA that is
unrelated to the crime. He points to multiple papers detailing this possibility, going
back to 2002, including studies on the incidence of law enforcement contaminating
evidence. (See. Dkt. 393-1 at 6–7 (citing published works on the topic)). He also
explains how DNA degradation occurs, and again points to published works
discussing how the failure to properly store evidence can increase the risk of
degradation. (See id. at 8 (citing published works on the topic)). As Andersen notes,
that DNA degradation can and does occur is undisputed in this case. (See Dkt. 393
at 10 (noting no dispute that “the relevant DNA was degraded”)). Dr. Warren’s
experience in the field lends further credence to his explanations of contamination
and degradation. See Trustees of Chicago Painters & Decorators Pension, Health &
Welfare, & Deferred Sav. Plan Tr. Funds v. Royal Int’l Drywall & Decorating, Inc.,
493 F.3d 782, 787 (7th Cir. 2007) (noting that “Rule 702 specifically contemplates the
admission of testimony by experts whose knowledge is based on experience”). That
he cites to published works and studies to support his explanations further suggests
that the concepts of contamination and degradation are established and generally
accepted within the field of DNA testing and analysis. See United States v. Truitt,
938 F.3d 885, 890 (7th Cir. 2019) (“Daubert identifies a number of factors a court
might consider, including whether the methods have been tested or subjected to peer
review and whether they are generally accepted in the field.”); Bielskis v. Louisville
Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011) (noting that publication of a theory
and its acceptance within the relevant community are factors to be considered under

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Daubert.).

The Court finds that the science behind DNA contamination and

degradation is reliable and Dr. Warren is permitted to testify regarding it.
Dr. Warren goes on to discuss the ways in which the evidence in this case may
have been exposed to the potential for contamination and degradation. He reviewed
a significant amount of material to do so, including the depositions of multiple
members of law enforcement involved in the original case, photographs depicting the
evidence and how it was stored, and more. (Dkt. 393-1 at 2–3). In proceeding in his
analysis in this manner, Dr. Warren appropriately tied the science behind
contamination and degradation to the facts of this case, walking through how the
facts here could lead to DNA contamination and degradation. See Manpower, Inc. v.
Ins. Co. of Pennsylvania, 732 F.3d 796, 806 (7th Cir. 2013) (“The critical inquiry is
whether there is a connection between the data employed and the opinion
offered. . . .”). In this way, his testimony is not unlike that of Andersen’s own expert,
Dr. Kassin, whose testimony this Court has also found admissible. (Dkt. 391). Like
Dr. Kassin, Dr. Warren first walks through the risk factors for contamination and
degradation, and then points out what risks may be present in this case given the
underlying facts.

The Court finds that Dr. Warren has reliably connected the

concepts of contamination and degradation to his assessment of the facts here.
III.

Relevance
Andersen also challenges the relevance of Dr. Warren’s testimony, arguing

that it will not assist the jury. See Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th
Cir. 2000) (“When analyzing the relevance of proposed testimony, the district court

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must consider whether the testimony will assist the trier of fact with its analysis of
any of the issues involved in the case.”).
Andersen argues that one of the reasons Dr. Warren’s testimony is
inadmissible is because it is speculative, particularly regarding contamination. 2
While there is no direct proof of contamination here, there is certainly circumstantial
evidence that could support the proposition that the evidence was contaminated. (See
Dkt. 393-1 at 9–27 (discussing how the evidence was handled, including that law
enforcement may not have used masks or gloves when handling evidence, that
prosecutors and witnesses handled the evidence, and more)). Dr. Warren is permitted
to opine on the risk of contamination based on “the different possible factual scenarios
that might have taken place.” United States v. Hall, 93 F.3d 1337, 1345–46 (7th Cir.
1996).

What might be speculative would be for Dr. Warren to conclude that

contamination did, in fact, occur here. He declined to do so. (See, e.g., Dkt. 441 at
186:16–186:24).
Moreover, that Dr. Warren does not come to an ultimate conclusion about
whether the DNA samples were actually contaminated is irrelevant. To satisfy the
relevance requirement, the “expert need not have an opinion on the ultimate question
to be resolved by the trier of fact.” Smith, 215 F.3d at 718. One of the defense theories
in this case is that the DNA test results should be given little weight because they

Andersen repeatedly quotes Dr. Warren’s deposition statement: “all I’m saying is that there is still
the possibility of contamination. What that possibility is, I don’t know. It may be 99 percent. It might
be one percent.” (Dkt. 393-2 at 179:22–179:25). It is clear that what Dr. Warren was saying was that
a risk of contamination exists, although he cannot quantify it. This does not automatically make his
testimony speculative. Had Dr. Warren attempted to quantify the risk, surely Andersen would be
pointing out that no science supports such a quantification.
2

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were degraded and could possibly have been contaminated. Dr. Warren’s testimony
will aid the jury in assessing that theory and determining what weight to give the
DNA evidence.

The concepts of DNA contamination and degradation are not

something that the average juror would understand, except possibly at a very high
level of generality. See United States v. King-Vassel, 728 F.3d 707, 712 (7th Cir. 2013)
(“Expert testimony may be required for matters that are beyond the common
understanding of a lay juror.”); Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th
Cir. 2013) (“Expert testimony is permitted to assist the trier of fact with technical
issues that laypeople would have difficulty resolving on their own.”). The Court
believes that Dr. Warren’s testimony will aid the jurors in understanding these
scientific concepts and applying them to the facts here. And that it is not disputed
that degradation occurred here does not make the concept any more understandable
to the jury. Defendants are still entitled to have Dr. Warren provide background on
what degradation is and why it occurs as the Court believes that this is not within
the ken of the average juror.
Andersen’s arguments regarding Dr. Warren’s testimony go to the weight it
should be given, not its admissibility. This includes the argument that the likelihood
of contamination was low here because at least some evidence appears to have come
from blood, as well as the argument that degraded and contaminated DNA can still
be reliably interpreted. Andersen will have the opportunity to vigorously crossexamine Dr. Warren on the opportunities for contamination and degradation and to

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present evidence which undermines his opinions. See Schultz, 721 F.3d at 431. These
methods, rather than exclusion, are the appropriate solution here.
IV.

Specific Limitations
Andersen argues for some specific limitations on Dr. Warren’s testimony.

Andersen argues that Dr. Warren may not testify generally regarding how evidence
was stored prior to the rise of DNA testing in the 1980s.

Such a limitation is

appropriate, as Dr. Warren’s expertise is not in the standards for evidence collection
pre-DNA testing. Dr. Warren will, however, be permitted to discuss any practices for
which there is factual support, including information about how the evidence was
stored in this case and his own laboratory experiences.
Andersen also argues that Dr. Warren should be barred from testifying about
the interpretations of the DNA testing results. Dr. Warren has made clear that he
was not retained to interpret the DNA testing results here, nor has he attempted to
do so. (See, e.g., Dkt. 441 at 157:3–157:4, 177:20–177:23). He did, however, opine on
the general fact that the DNA samples obtained from the knife and bra were lowlevel samples and were degraded and generated results that could be consistent with
contamination.

(Dkt. 393-1 at 20–21, 28).

He further noted that given the

degradation on the bra, it could be assumed that other evidence was similarly
degraded. (Id. at 28). This is within his expertise and he will be permitted to discuss
these opinions. Further, as Andersen notes, it is not disputed that the relevant DNA
samples in this case were degraded. (See Dkt. 393 at 10 (noting no dispute that “the
relevant DNA was degraded”)).

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Andersen moved to exclude any opinion Dr. Warren may give on guilt or
innocence. Dr. Warren has not given any such opinion and Defendants represent that
he will not do so. (Dkt. 409 at 2 n.1). This argument is therefore moot.
In post-hearing briefing, Andersen moved to exclude previously undisclosed
opinions that Dr. Warren offered for the first time at the hearing. (Dkt. 449). The
first is any reliance on guidelines published by the Scientific Working Group on DNA
Analysis Methods (“SWGDAM”). Andersen notes that Dr. Warren did not reference
the SWGDAM guidelines in his report and stated in his deposition testimony that he
did not rely on them. (Dkt. 449-4 at 116:4–117:15). Federal Rule of Civil Procedure
26(a)(2)(B) requires an expert witness to provide “a complete statement of all opinions
the witness will express and the basis and reasons for them” and “the facts or data
considered by the witness in forming them.” “Rule 37(c)(1) states that if a party fails
to comply with Rule 26(a), the evidence is excluded ‘unless the failure was
substantially justified or is harmless.’” Uncommon, LLC v. Spigen, Inc., 926 F.3d
409, 417 (7th Cir. 2019) (quoting Fed. R. Civ. P. 37(c)(1)). Defendants did not respond
to Andersen’s motion to exclude this testimony or explain why it was justified or
harmless. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to
respond to an argument. . . results in waiver.”). The Court will therefore bar Dr.
Warren from relying on SWGDAM guidelines to support his opinions.
Andersen also moved to bar Dr. Warren’s previously undisclosed opinion
regarding the significance of the absence of DNA on a piece of evidence generally, and
the significance of the absence of Trunko’s DNA on the knife specifically. (Dkt. 441

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at 173:1–174:23). The former part of this opinion is not undisclosed—it falls within
Dr. Warren’s original opinions about degradation (Compare Dkt. 393-1 at 5 (“Also,
handling of the evidence, such as removal of the source of DNA, not wearing gloves
when handling the evidence, improper packing and storage of evidence, can
sometimes exasperate DNA degradation”) with Dkt. 441 at 173:1–173:24 (“Well, were
there opportunities for DNA to be removed? Were there opportunities, again, for -mainly, again, for DNA to be removed or DNA to degrade beyond the point where it’s
usable?”)). The latter opinion about Trunko, however, is undisclosed. As previously
noted, Dr. Warren stated that he would not address the interpretation of the DNA
profiles here. Again, Defendants did not respond to Andersen’s motion to exclude this
testimony or explain why it was justified or harmless. The Court will therefore bar
Dr. Warren from referencing the absence of Trunko’s DNA profile on the knife.
CONCLUSION
For the foregoing reasons, Andersen’s motion to exclude the testimony of Dr.
Warren is granted in part and denied in part. (Dkt. 392). Andersen’s motion to
exclude Dr. Warren’s undisclosed opinions is also granted in part and denied in part.
(Dkt. 449). His testimony is generally admissible but will be limited consistent with
this Opinion.

Date: April 13, 2020

____________________________________
Virginia M. Kendall
United States District Judge

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