Andersen v. City of Chicago et al

Filing 674

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 10/14/2020. Defendants combined motion both moving for reconsideration of the exclusion of Dr. Krane's testimony and arguing that he may testify as to the general topic of uncertainty 660 is granted in part and denied in part. Defendants' motion to reconsider the exclusion of Dr. Krane's testimony is denied. Consistent with this Opinion and the June 16, 2020 Order, Dr. Krane may testify in a limited capacity on the general topic of uncertainty in interpreting partial DNA profiles with an unknown number of contributors. See Opinion for further details. Mailed notice(lk, )

Case: 1:16-cv-01963 Document #: 674 Filed: 10/14/20 Page 1 of 7 PageID #:32155

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 sued the City of Chicago and various members of
Chicago law enforcement for violations of his constitutional rights pursuant to 42
U.S.C. § 1983 and several state-law claims. (Dkt. 1). Andersen moved to exclude the
testimony of Dr. Dan E. Krane, Defendants’ DNA expert.

(Dkt. 392).

By

memorandum opinion dated June 16, 2020, this Court granted Andersen’s motion to
exclude Dr. Krane’s testimony finding that his underlying methodology did not meet
the requirements for reliability under Rule 702. (Dkt. 656 at 9). The Court invited
Defendants to file supplemental briefing regarding whether Dr. Krane may properly
testify on a limited basis as to the uncertainty in interpreting partial DNA profiles
with an unknown number of contributors. (Dkt. 656 at 9–10). Defendants filed this
combined motion both moving for reconsideration of the exclusion of Dr. Krane’s
testimony and arguing that he may testify as to the general topic of uncertainty.
(Dkt. 660). Defendants’ motion is granted in part and denied in part.
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DISCUSSION
I.

Motion for Reconsideration
A.

Legal Standard

Although Defendants do not specify which Rule supports this motion for
reconsideration, the Court assumes they seek relief in a hybrid way under Federal
Rule of Civil Procedure 54(b) and also because the Court invited supplemental
briefing on the issue. Rule 54(b) affords courts the inherent power to reconsider
interlocutory orders at any time before final judgment is entered. Fed. R. Civ. P.
54(b); see also Galvan v. Norberg, 678 F.3d 581, 587 (7th Cir. 2012). A motion for
reconsideration under Rule 54(b) may be granted where the Court has obviously
misunderstood a party, where the Court’s decision rests on grounds outside the
adversarial issues presented to the Court by the parties, where the Court has made
an error not of reasoning but of apprehension, where there has been a controlling or
significant change in the law since the submission of the issue to the Court, or where
there has been a controlling or significant change in the facts of the case. See Bank
of Waunakee v. Rochester Cheese Sales, Inc., 906 F.1d 1185, 1191 (7th Cir. 1990); see
also, e.g., Caine v. Burge, 897 F. Supp. 2d 714, 716–17 (N.D. Ill. 2012).
Motions to reconsider should be granted only in rare circumstances. See Bank
of Waunakee, 906 F.2d at 1191. A party moving for reconsideration bears a heavy
burden. See Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264,
1270 (7th Cir. 1996). Motions for reconsideration may not be used to relitigate
arguments the Court previously rejected. See id.; see also, e.g., Caine, 897 F. Supp.

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2d at 717. Finally, it is well-settled that motions for reconsideration are not the
proper vehicles for advancing arguments or theories that could and should have been
made before the Court entered its order or to present evidence that was available
earlier. See Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007); see also,
e.g., Caine, 897 F. Supp. 2d at 717. The Court recognizes that it invited supplemental
briefing on the issue and therefore has considered that briefing.
B.

Dr. Krane’s Opinion

Defendants’ primary argument is that the Court misunderstood Dr. Krane’s
methodology by holding he “applied a ‘blanket’ approach which categorically declined
to interpret partial profiles.” (Dkt. 660 at 5). Defendants point to various instances
in which Dr. Krane testified “he was not applying a blanket approach which forbids
the interpretation of partial profiles.” (Dkt. 660 at 6) (emphasis in original).
Defendants are correct that Dr. Krane does not adopt a blanket approach to all
partial profiles. (Dkt. 660 at 6). According to Dr. Krane, partial profiles in which
there is little to no question as to the number of contributors—such as a sample
extracted from the inside of a tooth or the inside of a used condom—do not
automatically warrant an “inconclusive” result. (Dkt. 444 at 88:18–89:4; 128:17–
129:11). This is not the opinion or methodology at issue in this case. The partial
DNA profiles about which Dr. Krane was retained to opine are those with evidence of
stochastic effects and an unknown number of contributors. (Dkt. 394-2 at 6–12). It
is Dr. Krane’s methodology with regard to these types of partial DNA profiles which
is relevant to the matter at hand.

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Defendants consistently and repeatedly characterize “[t]he crux of Krane’s
opinion is that DNA samples with evidence of stochastic effects should not be used to
exclude or include anyone as a contributor, especially where the DNA is also low level
DNA.” (Dkt. 408 at 7). See also (Dkt. 408 at 7–8 “Krane stated he is consistent in his
opinions that if a sample appears to have an unknown number of contributors and
dropout may have occurred, he concludes the comparison results should be
inconclusive because there is no reliable statistical weight that can be attribute to the
failure to exclude someone as a contributor.”); (Dkt 408 at 18 “Krane’s opinions across
the board with regard to the knife and the fingernail clippings were that because a
scientist cannot reliably opine to the number of contributors, one cannot reliably
include or exclude anyone and attach a meaningful statistical weight to such a
conclusion.”); (Dkt. 394-1 at 205:14–206:23). Defendant’s characterizations align
with Krane’s own statements on the record 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 drop-out may have occurred.” (Dkt. 444 at 14:1–
4); see also (Dkt. 394-1 at 135:23–136:2). The Court’s understanding of Dr. Krane’s
methodology—that partial profiles with evidence of stochastic effects should be
deemed inconclusive as a matter of course—is consistent. (Dkt. 656 at 5). Defendants
have not offered compelling evidence that the decision excluding Dr. Krane’s
testimony relies on a misunderstanding of his opinions or methodology.
Nor do Defendants submit evidence that Dr. Krane’s methodology is generally
accepted within his field. The sources proffered by Defendants merely affirm that

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partial profiles with stochastic effects may appropriately yield an inconclusive result,
not that they must. See, e.g., (Dkt. 660-14 at 3 “[John Butler states] an inconclusive
result may be reported with some evidentiary samples that produce partial or
complex DNA profiles due to damaged DNA[], too little DNA[], or complex mixtures”);
(Dkt. 660-9 at 215, 218–19 “Some evidentiary profiles are overly complex in nature
due to the number of contributors to the sample . . . In these situations,
determinations of inclusion or exclusion for a given individual is ambiguous, and an
inconclusive statement is appropriate . . .”); (Dkt. 660-10 at 18–19 “If samples under
comparison contain a partial profile, for example as a result of allele drop-out,
stochastic effects, or an incomplete profile from locus drop-out due to inhibition or
degradation, or is a complex mixture the DNA profile may or may not be interpretable
and may be considered inconclusive.”). Other than Dr. Krane himself, the Court is
unaware of any expert or authority in the field of DNA interpretation which
automatically deems partial DNA profiles with evidence of stochastic effects
“inconclusive.”
Defendants take issue with this Court’s determination in the June 16, 2020
Order that Dr. Krane declined to interpret the DNA profiles at issue and argue that
he “painstakingly went through each of the relevant profiles in this case, identified
the specific deficits of each one consistent with the cautionary factors outlined in the
governing literature, and concluded and explained why an inconclusive was the
appropriate interpretation for each one.” (Dkt. 660 at 10). In the context of Dr.
Krane’s methodology, this is a distinction without a difference. Unlike the rest of the

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forensic DNA testing field, Dr. Krane categorically deems partial DNA profiles with
evidence of stochastic effects “inconclusive.” This amounts to a refusal to interpret
such samples because the outcome is a foregone conclusion.
Defendants fail to convincingly argue that the Court misunderstood Dr.
Krane’s methodology or opinions or identify an error sufficient to justify
reconsideration. The exclusion of Dr. Krane’s testimony stands.
II.

Testimony on the General Topic of Uncertainty
Consistent with this opinion and the holdings of the July 16, 2020 Order, Dr.

Krane may offer limited testimony as to the general topic of uncertainty and risk in
interpreting partial DNA profiles with an unknown number of contributors.
Defendants presented sources which suggest that, in the field of forensic DNA
analysis, caution in interpretation of partial profiles applies to inclusions and
exclusions alike. See (Dkt. 660-7 at 4–5 “[C]omplex mixtures are challenging to
interpret . . . When there is a high degree of interpretation uncertainty from an
evidentiary sample, it makes little sense to try and draw conclusions (either inclusion
or exclusion of reference samples)—and expect those conclusions to be reliable.”); see
also (Dkt. 660-13 at 38–39); (Dkt. 660-8 at 4); (Dkt. 660 at 4). It bears repeating that,
in testifying in a limited capacity, Dr. Krane is prohibited from offering the opinions
excluded in the June 16, 2020 Order.

To illustrate, of the example questions

Defendants offer, only two are appropriate. Defendants might ask Dr. Krane “[w]hy
must caution be applied when interpreting complex and/or low level DNA samples?”
and “[w]hat are the different ways in which caution may be applied by a DNA

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analyst?” (Dkt. 668 at 8). Defendants may not, however, ask Dr. Krane to “[e]xplain
[his] methodology when interpreting low level degraded DNA samples that yielded a
partial DNA profile.” (Dkt. 668 at 8). This latter question runs too great a risk of
introducing the jury to inadmissible opinions prohibited by the June 16, 2020 Order
and Rule 702.
CONCLUSION
For the foregoing reasons, Defendants’ motion to reconsider the exclusion of
Dr. Krane’s testimony is denied. Consistent with this Opinion and the June 16, 2020
Order, Dr. Krane may testify in a limited capacity on the general topic of uncertainty
in interpreting partial DNA profiles with an unknown number of contributors.

Date: October 14, 2020

____________________________________
Virginia M. Kendall
United States District Judge

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