Andersen v. City of Chicago et al
Filing
656
MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 6/16/2020. Andersen's Motion to exclude the testimony of Dr. Krane 392 is granted. Andersen's Motion to exclude Dr. Krane's undisclosed opinions 449 is dismissed as moot. Defendants are granted leave to file a limited supplemental brief, consistent with this Opinion, within 14 days of the filing of this Opinion. 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.
)
)
)
)
)
)
)
)
)
)
)
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
Page 1 of 12
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 Dan Krane, one of
Defendants’ DNA experts. (Dkt. 392). The Court held a hearing on the motion on
December 12, 2019. (Dkt. 444).
For the following reasons, the motion is granted.
Andersen also moved post-hearing to exclude previously undisclosed opinions Dr.
Krane offered at the hearing. (Dkt. 449). That motion is moot as Dr. Krane’s
testimony will be excluded.
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:
(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;
Page 2 of 12
(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
preponderance of the evidence. See Gopalratnam, 877 F.3d at 782; see also Fed. R.
Evid. 702 advisory committee’s note to 2000 amendment.
Page 3 of 12
DISCUSSION
Dr. Krane was retained by Defendants to review and interpret the DNA testing
results at issue in this case. Andersen’s DNA experts concluded that Andersen and/or
Trunko were excluded as contributors of DNA to certain samples taken from the knife
and Trunko’s fingernail clippings.
(See Dkt. 655 at 4–5 (discussing the specific
conclusions of Andersen’s DNA experts)).
Dr. Krane, however, rebuts those
conclusions. He opines that:
The DNA profiling test results associated with the knife samples and for
the minor contributor to the fingernail samples in this case should all be
considered “inconclusive.” We cannot attach a reliable statistical weight
to any conclusions regarding who is included and who is excluded as a
possible contributor to the knife samples or the minor contributor to the
fingernail samples. The conditions under which the knife was stored
and handled, the possibility of multiple contributors and degradation,
and the small quantities of DNA available for testing are issues that
independently and cumulatively support the test results from these
samples being deemed “inconclusive” in regard to whose DNA may or
may not have been associated with them at the time that they were
collected as part of an investigation into the murder of Cathy Trunko.
(Dkt. 394-2 at 24). Andersen moved to bar Dr. Krane’s opinions because they are not
based on a proper scientific methodology and would mislead the jury.
Andersen does not challenge Dr. Krane’s qualifications to testify as an expert
in DNA analysis. Dr. Krane received degrees in the field of biology and chemistry.
(Dkt. 408-2). He is a professor in the Department of Biological Sciences at Wright
State University, where he has worked for decades. (Dkt. 408-2). He also is the CEO,
President, and Senior Analyst at Forensic Bioinformatics, through which he has done
work in forensic DNA interpretation. (Dkt. 408-2; Dkt. 444 at 65:13–66:3). He has
published extensively, including many articles on DNA testing. (Dkt. 408-2). He has
Page 4 of 12
also given multiple presentations in the field. (Dkt. 408-2). The Court finds him
qualified to offer testimony as a DNA expert.
Dr. Krane’s opinions, however, falter at other steps in the Daubert inquiry.
The Court first addresses Dr. Krane’s opinions on partial profiles. Dr. Krane states
that “there is no generally accepted means of attaching a reliable statistical weight
to a mixed DNA sample with an unknown number of contributors where allelic dropout may have occurred.” (Dkt. 444 at 14). He opines that a partial profile, which has
evidence of stochastic effects, “should not be used to exclude or include anyone as a
contributor.” (Dkt. 408 at 7). Because the DNA profiles Cellmark derived from the
samples taken from the evidence resulted in partial profiles, they should be deemed
“inconclusive” and none should be used to either include or exclude Andersen or
Trunko. Rather than discussing specific errors or specific differences in how a given
profile should be interpreted, Dr. Krane, in his report, merely applied his categorical
approach to each profile and stated that because it could be a mixture of more
contributors than posited, it should be deemed inconclusive. (Dkt. 394-2 at 6–12).
The problem is that Dr. Krane’s opinion is in stark contrast to what is being
done in the field of forensic DNA testing.
As discussed in the Court’s opinion
regarding Andersen’s DNA experts, accredited labs, including Cellmark, interpret
partial profiles and draw conclusions from them.
(See Dkt. 655 at 11–15).
As
Andersen’s expert, Dr. Reich, stated, “every forensic DNA laboratory constantly
encounters and then interprets, partial profiles.” (Dkt. 386-54 at 4). There is no
reason to doubt this statement, and in fact, Dr. Krane admitted that he is not aware
Page 5 of 12
of any lab that subscribes to his “blanket” approach to decline to interpret a partial
profile. (Dkt. 444 at 91:20–92:5). Additionally, the 2017 Interpretation Guidelines
published by the Scientific Working Group on DNA Analysis Methods (“SWGDAM”),
which is “a group of scientists representing federal, state, and local forensic DNA
laboratories in the United States and Canada,” anticipate that laboratories will
analyze partial profiles. (Dkt. 415-16 at 2, 38).
Dr. Krane and Defendants point to sources that they say support his position.
They point to no source, however, that goes so far as to reach the definitive position
that Dr. Krane espouses. Instead, these sources point generally to the uncertainty
and risk surrounding the interpretation of partial profiles with an unknown number
of contributors. (See Dkt. 408 at 13–14 (citing sources regarding uncertainty in
interpreting partial profiles)).
While these sources might, at a base level, be
consistent with Dr. Krane’s position, that risk exists or caution should be used does
not necessitate declining to interpret the data altogether, as Dr. Krane has done. 1
See Fuesting v. Zimmer, Inc., 421 F.3d 528, 536 (7th Cir. 2005), opinion vacated in
part on reh’g, 448 F.3d 936 (7th Cir. 2006) (noting that an “indicator of unreliability
is the unjustifiable extrapolation from an accepted premise to an unfounded
conclusion”); see also Fed. R. Evid. 702 advisory committee’s note to 2000 amendment.
Further, the cited sources appear to express concerns with the use of partial profiles
Defendants argue that Cellmark’s own Standard Operating Procedures (“SOPs”) support Dr. Krane’s
conclusion. That is an overstatement. While the SOPs allow for an inconclusive determination under
certain circumstances, they do not call for an inconclusive determination in every situation Dr. Krane
suggests. (See Dkt. 408-5 at 4).
1
Page 6 of 12
for purposes of including a potential suspect, rather than excluding a suspect. See,
e.g., President’s Council of Advisors on Science and Technology, Report To The
President, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feat
ure-Comparison Methods (2016) at 7–8, https://obamawhitehouse.archives.gov/sites/
default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf; Frederi
ck R. Bieber, et al., Evaluation of forensic DNA mixture evidence: protocol for
evaluation, interpretation, and statistical calculations using the combined probability
of inclusion, BMC Genetics 17, 125 (2016), available at https://bmcgenet.biomedcent
ral.com/track/pdf/10.1186/s12863-016-0429-7; John M. Butler, Low Template DNA
Challenges and Validation Suggestions, DNA Mixture Interpretation Webcast April
12, 2013 at 13–14, available at https://strbase.nist.gov/training/MixtureWebcast/9_L
owTemplateValidation-Butler.pdf).
Here, Cellmark’s conclusions pertained to
exclusions. With the exception of Trunko’s DNA being consistent with that found on
her own fingernails (which Dr. Krane declined to agree or disagree with (Dkt. 394-2
at 11)), Cellmark either excluded Trunko and/or Andersen as contributors to the
samples or found that no conclusions could be reached.
That here we are dealing
with exclusions rather than inclusions makes a big difference in whether Dr. Krane’s
testimony is admissible. 2
Dr. Krane’s comments on statistical calculations are also made irrelevant by the fact that here we
are dealing with exclusions. If the individual is excluded as a contributor, the probability of exclusion
is an immaterial calculation. Dr. Reich, in rebuttal to Dr. Krane’s opinions, succinctly describes this,
and the Court repeats his description here:
2
There are of course several well characterized and well accepted statistical methods
for calculating the strength of an association in a forensic DNA case, i.e., how strong is
Page 7 of 12
As a general matter, it is the Court’s role to determine whether the methods
used by an expert in reaching a conclusion are sound, not to judge whether the
conclusion is correct. Schultz, 721 F.3d at 431; see also Smith v. Ford Motor Co., 215
F.3d 713, 719 (7th Cir. 2000) (“It is not the trial court’s role to decide whether an
expert’s opinion is correct.”). Here, however, the method and the conclusion are
inextricably linked. The method is to decline to interpret a partial profile to include
or exclude anyone. The result, therefore, is of course to determine that the DNA
profile is inconclusive as to Andersen and Trunko. Because the method is not sound,
the conclusion is not admissible. 3
the claimed or purported identification of an individual, derived from comparing the
questioned DNA profile with a known reference standard DNA profile. . . .
There are, however, no statistical approaches to determining the weight of an
exclusion, i.e., when an individual is not present on a questioned sample. Technically
the probability of identifying the excluded individual is zero (0) as he or she is not
present on the sample.
No forensic laboratory calculates the statistic Professor Krane professes to request, i.e,
the probability of an exclusion or the probability of an inclusion. There are no
laboratory standards, methods or procedures to perform the analysis Professor Krane
invents and little or no theoretical foundation for attempting to compute such a
number.
Once a contributor has been excluded, no further analysis of that individual’s DNA can
be made — his or her DNA profile is not present and thus no frequency tables,
mathematical formulae or likelihood calculations are relevant to that individual. He
or she is excluded — no further arguments in relation to probability are possible,
relevant or logical.
(Dkt. 386-54 at 3–4). As such, Dr. Krane’s discussion of the topic would not aid the jury in
“understand[ing] the evidence” or “determin[ing] a fact in issue.” Myers, 629 F.3d at 644 (internal
quotation marks omitted)
Subsumed in Dr. Krane’s conclusion is the proposition that low template DNA can lead to stochastic
effects, which in turn can produce unreliable results. Accepting this proposition as true, it does not
alter the Court’s conclusion. As noted above, partial profiles, which have evidence of stochastic effects,
are regularly and reliably interpreted.
3
Page 8 of 12
In sum, Dr. Krane’s blanket methodology is unsupported by his cited sources
and is not generally accepted within his field. The Court appreciates that these
factors are just some to be considered in the reliability inquiry. 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 Daubert). But these factors weigh against the reliability of Dr.
Krane’s testimony, and the Court sees no other factors that weigh in support of its
reliability. It may be, as Dr. Krane suggests, that he is at the forefront of a position
that will one day become widely held. Today, however, is not that day, at least not
for the purposes of Daubert and Rule 702. 4
The Court concludes that Dr. Krane’s
opinion that the partial profiles derived in this case should be deemed inconclusive
does not meet the requirements for reliability and must be excluded.
Although Dr. Krane’s conclusions are inadmissible, as noted above, some of the
underlying propositions he relies on are generally accepted and have been published
widely, specifically that interpretation of partial profiles with an unknown number of
4 Dr. Krane stated at the hearing that the newer concept of probabilistic genotyping could allow for
more reliable interpretation of partial profiles. Dr. Krane, however, did not discuss probabilistic
genotyping in his expert report. See Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008)
(stating that “Rule 26(a)(2) mandates a complete and detailed report of the expert witness’s opinions,
conclusions, and the basis and reasons for them”). More importantly, discussion of probabilistic
genotyping would very likely confuse the jury, outweighing any probative value—probabilistic
genotyping was not used in this case and to get into what it is and why it could be used goes down a
rabbit hole that is unnecessary. Fed. R. Evid. 403.
Page 9 of 12
contributors can present risk and uncertainty. It is this Court’s understanding,
however, that the caution advised has to do with making inclusions, although the
parties did not address this rather crucial point. Here, as noted, we are dealing with
exclusions. Therefore, to allow discussion of the uncertainty in the area would be
prejudicial.
A jury may become confused and extrapolate the uncertainty to
exclusions even though unwarranted. Discussion of the uncertainty, therefore, would
be more prejudicial than probative, even if it is reliable and relevant. Fed. R. Evid.
403. That being said, if Defendants believe that there is some way in which Dr.
Krane’s testimony on this more general topic of uncertainty could be admissible in a
manner that is consistent with this Opinion, they may explain in a supplemental brief
why the Court should admit Dr. Krane’s opinions on a limited basis.
Any
supplemental brief, if there are grounds to support it, must be 15 pages or less and
submitted within 14 days of the filing of this Opinion.
The Court turns next to additional opinions Dr. Krane offered regarding
contamination and degradation. Dr. Krane will not be permitted to discuss these
topics. That would be cumulative to the testimony of Dr. Warren, whose testimony
on the topic was far more thorough. See Fed. R. Evid. 403 (“The court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of. . .
needlessly presenting cumulative evidence.”); see also L.R. 16.1, Final Pretrial Order
Form n. 7 (“Only one expert witness on each subject for each party will be permitted
to testify absent good cause shown.”).
Dr. Krane’s explanation of the risk of
Page 10 of 12
contamination is duplicative of Dr. Warren’s testimony. (Compare, e.g., Dkt. 393-1
at 7 with 394-2 at 18 (both citing the same source regarding contamination)).
Further, at the hearing, Dr. Krane admitted that he had not reviewed much of
the relevant testimony in this case about how the evidence was handled and was
relying in part on his general knowledge of DNA collection practices in drawing his
conclusion. (See Dkt. 394-2 at 2–3 (discussing the sources he reviewed); Dkt. 444 at
133:12–134:18)). But this is not an appropriate basis upon which he may rely, as Dr.
Krane has been qualified as a DNA expert, not an expert in the standards for evidence
collection pre-DNA testing. See Fed. R. Evid. 702 advisory committee’s note to 2000
amendment (“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.”). In addition to being needlessly cumulative, this is another
reason to exclude his testimony on the subject.
Page 11 of 12
CONCLUSION
For the foregoing reasons, Andersen’s motion to exclude the testimony of Dr.
Krane is granted. (Dkt. 392). Andersen’s motion to exclude Dr. Krane’s undisclosed
opinions is dismissed as moot. (Dkt. 449). Defendants are granted leave to file a
limited supplemental brief, consistent with this Opinion, within 14 days of the filing
of this Opinion.
Date: June 16, 2020
____________________________________
Virginia M. Kendall
United States District Judge
Page 12 of 12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?