Smart et al v. City of Wichita, Kansas et al

Filing 234

ORDER granting in part and denying in part 188 Motion to Exclude testimony from Michael D. Lyman. Signed by Magistrate Judge James P. O'Hara on 7/2/2020. (amh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
THE ESTATE OF MARQUEZ SMART, et al.,
Plaintiffs,
v.
THE CITY OF WICHITA, et al.,
Defendants.

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Case No. 14-2111-JPO

ORDER
This case arises from the fatal shooting of Marquez Smart by police officers in
Wichita, Kansas, on March 10, 2012. Plaintiffs, the estate and heirs of Mr. Smart, bring
claims against Officer Aaron Chaffee under 42 U.S.C. § 1983 for excessive force, and
against Officer Chaffee and Officer Lee Froese under Kansas state law for negligence and
wrongful death.1 In anticipation of trial, defendants have filed a motion (ECF No. 188)
asking the court to exclude from evidence expert testimony from Michael D. Lyman, whom

1

Plaintiffs also brought federal claims against Officer Froese and the City of
Wichita, but those claims were dismissed on summary judgment. ECF Nos. 205, 206
(upheld on appeal in ECF No. 221). A motion to set aside summary judgment on plaintiffs’
state-law claims against Officers Froese and Chaffee is pending (ECF No. 228). The court
therefore refers to “defendants” in the plural, although it is possible Officer Chaffee may
be the only defendant at trial.
1
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plaintiffs designated as an expert on police procedures. For the reasons discussed below,
the motion is granted in part and denied in part.
I.

Background

In the early morning hours of March 10, 2012, as hundreds of people left bars and
concert venues in Wichita’s Old Town neighborhood at closing time, a gunshot rang out.
Mr. Smart, who is black, began running and was pursued on foot by Wichita police officers.
It is undisputed that Mr. Smart was shot multiple times by Officers Froese and Chaffee,
and died from sustained gunshot wounds.
Plaintiffs filed suit against the City of Wichita (“the City”) and Officers Froese and
Chaffee, alleging the officers used excessive force against Mr. Smart in violation of the
Fourth Amendment and that this was due to an unlawful policy, practice, or custom adopted
by the City. Plaintiffs also advanced claims for negligence and wrongful death under
Kansas state law. This court granted summary judgement for Officers Froese and Chaffee
on qualified immunity grounds.2 The court also granted summary judgment for the City,
finding plaintiffs had failed to point to facts showing a City custom or policy was the
moving force behind the shooting of Mr. Smart.

The court declined to exercise

supplemental jurisdiction over plaintiffs’ remaining state-law claims.
On appeal, the Tenth Circuit affirmed the grant of summary judgment as to all
defendants on Counts I and II, and as to Officer Froese and the City as to Count III. But

2

ECF No. 205.
2

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the Circuit reversed the grant of summary judgment as to Officer Chaffee on plaintiffs’
claim that Officer Chaffee shot Mr. Smart after it would have been apparent to a reasonable
officer that Mr. Smart was not a threat. The Circuit remanded this claim for further
proceedings consistent with its decision, and the court set the case for trial in January 2020.
Plaintiffs have designated Lyman, whose qualifications include more than 40 years
working as a law enforcement agent, criminal investigator, police trainer, and college
professor, as an expert expected to testify at trial. Lyman’s Fed. R. Civ. P. 26(a)(2)(B)
written report states he will express the overarching opinion that the use of deadly force by
Officers Froese and Chaffee “was unjustified, excessive and served no objectively
reasonable purpose.”3 Defendants have moved to exclude Lyman from testifying at trial,
asserting his opinions do not meet the criteria for the admissibility of expert testimony.
II.

Legal Standards for the Admissibility of Expert Testimony

Fed. R. Evid. 702 governs the admissibility of expert testimony:4
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:

3

ECF No. 188-2 at 11. Lyman further planned to opine that the Wichita Police
Department failed to conduct a proper internal investigation into the shooting and that
police administrators ratified the officers’ conduct, id. at 22-29, but those opinions are no
longer relevant in light of the City’s dismissal from this case. It should go without saying
that an expert’s testimony must be otherwise admissible; the court will not permit
testimony that is not relevant to a fact at issue in the case, nor testimony that is cumulative.
See Fed. R. Evid. 401 & 403.
4

Hoffman v. Ford Motor Co., 493 F. App’x 962, 972 (10th Cir. 2012) (citing United
States v. Call, 129 F.3d 1402, 1404 (10th Cir. 1997)).
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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.
From this rule, the Tenth Circuit has developed a gatekeeping test for trial courts to
apply in considering the admissibility of proposed expert testimony. First, the court must
decide “whether the expert is qualified ‘by knowledge, skill, experience, training, or
education’ to render an opinion.”5 Second, the court “‘must satisfy itself that the proposed
expert testimony is both reliable and relevant, in that it will assist the trier of fact.’”6 “To
be reliable, the opinions must be within the witness’s area of expertise, be based on facts
and data reasonably relied on by experts in the field (Rule 104(a)), and not be speculative
or mere guesswork.”7

To be relevant, the opinions “must assist the fact-finder in

understanding the evidence or determining a fact in issue.”8 Expert opinions that “merely

5

Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013) (quoting United States v.
Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (quoting Fed. R. Evid. 702)).
6

Id. (quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir.

2006)).
7

Richard v. Hinshaw, No. 09-1278-MLB, 2013 WL 6632122, at *2 (D. Kan. Dec.
17, 2013).
8

Hoffman, 493 F. App’x at 975 (citing Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 591 (1993)).
4
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tell the jury what result to reach” are inadmissible.9 Additionally, it is the duty of the trier
of fact to determine whether a witness’s testimony is credible. Thus, as a general matter,
expert testimony regarding the credibility of witnesses is not relevant and is inadmissible.10
Finally, “an expert may not state his or her opinion as to legal standards nor may he
or she state legal conclusions drawn by applying law to the facts.”11 Although expert
testimony is not objectionable simply because it embraces an ultimate issue to be decided
by the trier of fact,12 a court may exclude opinion testimony if it is so couched in legal
conclusions that it supplies the fact finder with no information other than what the witness
believes the verdict should be.13 Experts “‘should avoid legal conclusions, which usurp[ ]

9

Specht v. Jensen, 853 F.2d 805, 807 (10th Cir. 1988) (quoting Advisory Committee
Notes to Fed. R. Evid. 704).
10

United States v. Adams, 271 F.3d 1236, 1246 (10th Cir. 2001). See also Wilson
v. Muckala, 303 F.3d 1207, 1218 (10th Cir. 2002) (“The credibility of witness testimony
is a matter left to the jury and generally is not an appropriate subject for expert testimony.”).
11

Christiansen v. City of Tulsa, 332 F.3d 1270, 1283 (10th Cir. 2003) (quoting

Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1328 (10th Cir. 1998)) (concluding that whether

defendants acted “recklessly” was a legal conclusion and thus properly excluded).
Fed. R. Evid. 704(a) (allowing opinion testimony embracing an “ultimate issue”
if the opinion is not otherwise objectionable).
12

13

Ornelas v. Lovewell, No. 11-2261-JAR, 2013 WL 3271016, at *6 (D. Kan. June
27, 2013) (quoting Ortega v. City & Cnty. of Denver, Nos. 11-2395, 11-2395, 11-2396,
and 11-2397, 2013 WL 438579, at *3 (D. Colo. Feb. 5, 2013), which in turn quoted Fed.
R. Evid. 704). See also Zuchel v. City & Cnty. of Denver, 997 F.2d. 730, 742B43 (10th Cir.
1993) (holding that expert testimony on whether an officer’s conduct was “inappropriate”
based on generally accepted police custom and practice was admissible, but noting that
testimony about whether the conduct was “unconstitutional” would not have been
permissible).
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the jury’s role’”14 and “should refrain from stating their opinions about legal standards or
legal conclusions drawn by applying law to the facts.”15 “When this occurs, the expert acts
outside of his limited role of providing the groundwork in the form of an opinion to enable
the jury to make its own informed determination.”16
“The proponent of expert testimony bears the burden of showing that the testimony
is admissible.”17 Although the court has broad discretion in deciding whether to admit or
exclude expert testimony,18 the court is mindful that exclusion of expert testimony should
be “the exception, not the rule.”19
III.

Analysis

Defendants do not seriously question Lyman’s qualifications as an expert in police
practices and procedures, and the court finds Lyman’s education and experience render
him qualified to opine on this topic.20 Thus, the court turns to the second part of the

14

United States v. Reulet, No. 14-40005-DDC, 2015 WL 7776876, at *6 (D. Kan.
Dec. 2, 2015) (quoting United States v. Bates, No. 1:11-cr-00123-BLW, 2012 WL
1579590, at *1 (D. Idaho May 4, 2012)); see also Ornelas, 2013 WL 3271016, at *6 (ruling
“an expert witness’s testimony may not usurp the jury’s fact-finding function”).
15

Reulet, 2015 WL 7776876, at *6.

16

Id. (quoting Bates, 2012 WL 1579590, at *1).

17

Conroy, 707 F.3d at 1168 (citing Nacchio, 555 F.3d at 1241).

18

Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1498 (10th Cir. 1996) (quoting Orth
v. Emerson Elec. Co., 980 F.2d 632, 637 (10th Cir. 1992)).
19

Reulet, 2015 WL 7078917, at *2 (quoting Advisory Committee Notes to Fed. R.
Evid. 702).
20

Lyman’s qualifications include working more than 40 years as a law enforcement
agent, criminal investigator, police trainer, and college professor in the field of policing.
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gatekeeping test: whether, under the above standards, Lyman’s opinions are reliable and
relevant such that they will assist the jury. Upon examination of Lyman’s expert report,
the court finds the bulk of his statements and opinions inadmissible.
First, Lyman begins the opinion section of his report with a discussion of
“constitutional standards” and his interpretation of Supreme Court caselaw.21 Defendants
argue Lyman’s interpretation of the law “erroneously limits the circumstances in which
deadly force is permissible.”22 As set forth above, it is inappropriate for an expert to “state
his or her opinion as to legal standards.”23 An expert may not encroach “upon the trial
court’s authority to instruct the jury on the applicable law, for it is axiomatic that the judge
is the sole arbiter of the law and its applicability.”24 Thus, the court will prohibit Lyman
from testifying about what legal standards apply to the claims in this case.
Second, Lyman opines in a number of places that the actions of Officer Chaffee
and/or Officer Froese were “unjustified,” “excessive,” or “unreasonable.”25

The court

must determine whether testimony of this sort is admissible testimony about an ultimate

ECF No. 188-1 at 3. He has researched, taught, and published in the area of police
procedures and has worked as a police instructor, training officers and officer candidates
on police techniques and procedures. Id.
21

ECF No. 188-2 at 10-11.

22

ECF No. 188 at 12.

23

Christiansen, 332 F.3d at 1283.

24

Specht, 853 F.2d at 807.

25

See, e.g., ECF No. 188-2 at 11, 13, and 21.
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fact or an inadmissible legal conclusion drawn by applying the law to the facts. If the
testimony “articulates ultimate principles of law” and directs a verdict, it is
impermissible.26

But if the testimony merely assists “the jury’s understanding and

weighing of the evidence,” it is permissible.27
The ultimate legal question the jury will be asked to decide in evaluating plaintiffs’
excessive-force claim is whether Officers Froese and Chaffee used “reasonable” force, as
defined by Fourth Amendment jurisprudence, in shooting Mr. Smart.28 Whether an officer
has used excessive force is judged by a standard of “objective reasonableness,” which will
require the jury to determine whether a “reasonable officer on the scene” would have
concluded that a threat existed justifying the use of deadly force.29
The court finds Lyman’s opinions that officers’ actions were “excessive” and
“unreasonable” are legal conclusions that usurp the jury’s role by applying the facts to the
law. Because these “opinions do not assist the trier of fact in understanding the evidence,

26

Specht, 853 F.2d at 808.

27

Id.

28

See ECF No. 221-2 at 27; Pauly v. White, 874 F.3d 1197, 1214-15 (10th Cir.
2017) (“All claims that law enforcement officers have used excessive force—deadly or
not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should
be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”).
29

Pauly, 874 F.3d at 1215; see also Ornelas, 2013 WL 3271016, at *6 (“Whether
an officer has used excessive force is judged by a standard of objective reasonableness,
which requires a jury to determine whether a reasonable officer in the same circumstances
would have concluded that a threat existed justifying the particular use of force.” (internal
quotation and citation omitted)).
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but rather embrace the ultimate issue,” the court will not permit such testimony.30
Although the court does not doubt plaintiffs’ assertion that police officers across the
country are trained on the legal definition of “reasonableness” and that court cases defining
this term are the basis for generally accepted police standards, opining that a defendant’s
action “was not objectively reasonable under the circumstances,”31 for example, “simply
tell[s] the jury what result it should reach.”32 The court will instruct the jury on the
reasonableness standard, and it will be the jury’s role to apply that standard to defendants’
conduct.
Third, and relatedly, defendants move to exclude Lyman’s opinions that the officers
failed to follow nationally recognized policing standards and/or Wichita Police Department
policy.33 As defendants correctly note, the Tenth Circuit has recognized that violations of
general law-enforcement standards or of a police-department regulation are insufficient to

30

Parker v. Wal-Mart Stores, Inc., 267 F.R.D. 373, 376 (D. Kan. 2010). See also
Ornelas, 2013 WL 3271016, at *7 (excluding expert testimony “as to the ultimate issue in
this case—whether [officer’s] use of force was excessive or unreasonable”); Zuchel, 997
F.2d at 742B43 (holding that expert testimony on whether an officer’s conduct was
“inappropriate” based on generally accepted police custom and practice was admissible,
but noting testimony about whether the conduct was “unconstitutional” would not have
been permissible).
31

ECF No. 188-2 at 21.

32

Parker, 267 F.R.D. at 376.

33

See, e.g., 188-2 at 22.
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establish liability under § 1983 for excessive force.34 An officer may violate local or
generally accepted police procedures, but “the jury could nonetheless find he acted
reasonably.”35 For this reason, in Marquez v. City of Albuquerque, the Tenth Circuit found
it was not an abuse of discretion for the district court to exclude testimony that an officer’s
actions “violated well established law enforcement standards.”36 The Circuit agreed such
testimony was “both irrelevant and confusing on the ground that violation of such standards
is not ipso facto a Fourth Amendment violation.”37
On the other hand, expert testimony about whether conduct at issue violated
generally accepted police custom and practice has been deemed relevant and admissible in
excessive-force cases involving (1) claims against municipalities alleging a police
department policy, practice, or custom permitted officers to use excessive force38 and/or

34

Marquez v. City of Albuquerque, 399 F.3d 1216, 1222 (10th Cir. 2005); Medina
v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001); Romero v. Bd. of Cty. Comm’rs, 60 F.3d
702, 705 (10th Cir. 1995).
35

Marquez, 399 F.3d at 1222.

36

Id.

37

Id.; see also Ornelas, 2013 WL 3271016, at *7 (excluding as irrelevant to the
Fourth Amendment inquiry expert testimony that defendant-officer did not follow police
department guidelines or generally accepted policy and training).
38

Zuchel, 997 F.2d. at 742B43; Choate v. City of Gardner, Kan., No. 16-2118-JWL,
2020 WL 774097, at *3 (D. Kan. Feb. 18, 2020) (distinguishing Zuchel and Marquez on
the basis that Zuchel involved a claim of municipal liability, and allowing testimony on
violation of police procedures and practices as relevant to a municipal-liability claim);
Martinez v. Salazar, No. CV 14-534 KG/WPL, 2016 WL 9488862, at *8 (D.N.M. Dec. 14,
2016) (excluding expert testimony on whether officers “followed police policies and
practices as it relates to Plaintiff’s excessive force claim under Section 1983,” but
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(2) state-law claims alleging an officer acted negligently.39 Although plaintiffs’ claims
against the City have been dismissed from the case, the court has yet to determine whether
it will exercise supplemental jurisdiction over plaintiffs’ state-law claims, including the
negligence claim.40 Defendants have not argued Lyman’s testimony in this regard should
be excluded as to the negligence claim. Therefore, if the court exercises supplemental
jurisdiction over plaintiffs’ negligence claim, the court will permit Lyman to offer his
opinion on whether officer conduct violated generally accepted police practices. In such
an instance, the court will reduce the risk that the jury will improperly consider the
testimony in connection with plaintiffs’ excessive-force claim by giving a limiting
instruction.41

permitting such testimony “in relation to Plaintiff’s state law claims and municipal
claims”).
39

Choate, 2020 WL 774097, at *3 (“Defendants have not offered any authority or
argument that police procedures and practices would not be relevant to a claim of
negligence, and therefore the Court denies the motion to exclude such testimony.”);
Martinez, 2016 WL 9488862, at *8.
40

As mentioned above, this matter is pending before the court in plaintiffs’ Fed. R.
Civ. P. 60(b)(5) motion to set aside summary judgment and exercise supplemental
jurisdiction over state-law claims. See ECF No. 228. Defendants’ response to that motion
asserts plaintiffs’ negligence claim is essentially one of battery. ECF No. 232 at 5-7. Such
an argument was also asserted in Choate, but was rejected. 2020 WL 774097, at *3. The
court makes no decision on this issue at this time.
41

See Martinez, 2016 WL 9488862, at *9 (“The Court acknowledges that, in
admitting this testimony [on whether officers followed police practices] in connection with
Plaintiff’s remaining claims, there is a risk that the jury will improperly consider the
testimony in connection with Plaintiff’s excessive force claims under Section 1983.
However, this risk can be sufficiently reduced with a limiting instruction at trial.”).
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In addition, whether or not the state-law claims are alive at the time of trial, the court
will permit Lyman to testify generally about standard police procedures to the extent they
are implicit in an opinion about how a reasonable officer would act under certain
circumstances. Since Marquez, courts in our district have recognized that, although expert
opinions on excessive force should not rest solely upon professional standards, a jury of
lay persons “might be assisted by the testimony of a person who has specialized knowledge
in the area of police procedures” in deciding “‘from the perspective of a reasonable officer’
whether there was excessive force.”42 Thus, in Reindl v. City of Leavenworth, the court
admitted the testimony of a police-practices expert about what “a reasonable officer under
similar circumstances” would have done under the facts in the case.43 And in Ornelas v.
Lovewell, the court admitted expert “opinion on the proper procedures for using force, i.e.,
opinions relating to general police procedures and standards to which officers adhere and
how, in his opinion, they apply to the disputed facts of this case,” even while prohibiting

42

Reindl v. City of Leavenworth, No. 04-2584-RDR, 2006 WL 2631947, at *4 (D.
Kan. Sept. 13, 2006).
Id. at *5 (permitting the opinion that “[p]rior to baton strikes, a reasonable officer
under similar circumstances would have first utilized the overwhelming police presence to
force [suspect] into handcuffs”). The court notes that the Reindl court, while not deciding
the issue in ruling the motion in limine, reserved for trial the question of whether it would
permit expert testimony on the ultimate issue of whether “[t]he use of the baton by [the
officer] was not a reasonable use of force, based on the totality of circumstances.” Id. For
the reasons discussed above, this court will not permit testimony by Lyman on whether
defendants’ actions met the constitutional standard of reasonableness.
43

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the expert from testifying the defendant did not follow generally accepted policy.44 This
approach appears to have been condoned by the Tenth Circuit in Cavanaugh v. Woods
Cross City. 45 Although the Cavanaugh Court did not directly address the admissibility of
expert testimony, it suggested that the officer-defendant could have called “[a] police
practices expert [to] testif[y] that under the circumstances faced by [the officer] a
reasonable officer would have concluded [the suspect] was a threat and used similar
force.”46
The court finds the reasoning in Reindl and Ornelas well taken. An expert’s
explanation of police training and protocols on the use of force will assist the lay juror in
evaluating evidence and deciding whether other officers would have responded as Officers
Froese and Chaffee did if confronted with the same circumstances. Thus, although the
court will exclude Lyman from testifying that Officer Chaffee or Officer Froese violated
Wichita Police Department policy or nationally accepted police standards if only the
federal claim remains, the court will permit him to offer testimony on accepted police
standards and how, in his opinion, they apply to the facts presented in this case. The court

44

2013 WL 3271016, at *7.

45

718 F.3d 1244, 1250 (10th Cir. 2013).

46

Id. (ruling the trial court committed harmless error in not excluding testimony
about an officer-defendant’s subjective state of mind and stating that an “alternative way[]”
for the defendant to “ensure the jury connected the dots from the objective facts to the
conclusion that force was warranted” was to call a police-practices expert to testify about
what a reasonable officer would have concluded).
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finds such opinion testimony could be useful to the jury in determining whether, under the
facts presented, the officers acted in accordance with how a reasonable officer on the scene
would have acted. If requested, however, the court will instruct the jury that a police officer
may be found to have violated accepted police standards but nonetheless to have acted
reasonably under the applicable Fourth Amendment standards.
Fourth, defendants ask the court to preclude Lyman from testifying that the evidence
“reasonably supports the premise that Smart was shot while on the ground.”47 The
evidence Lyman’s report references is bullet trajectories, a discussion of wound shoring in
the report of plaintiffs’ expert forensic pathologist, Wayne Ross, and a discussion of the
impact of bricks on bullets by plaintiffs’ ballistics expert, Richard Ernest.48 None of these
topics appear to fall within Lyman’s stated areas of expertise;49 it appears Lyman is simply
throwing his support behind plaintiffs’ other experts. Such regurgitation of another
expert’s testimony does nothing to assist the jury in reaching their decision, as required by
Rule 702. “Where [an expert] brings no additional or other expertise to bear on the issue,
there is no basis for him simply repeating the conclusions of others as his own.”50 Because
Lyman is not independently qualified to offer expert opinions on whether bullet-trajectory

47

ECF no 188-2 at 17-18.

48

Id. at 18-19.

49

See id. at 3-5.

50

Raley v. Hyundai Motor Co., No. CIV-08-0376-HE, 2010 WL 199976, at *6
(W.D. Okla. Jan. 14, 2010) (citing TK–7 Corp. v. Est. of Barbouti, 993 F.2d 722, 732–33
(10th Cir.1993)).
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analysis, wound shoring, or ballistics analysis indicate Mr. Smart was prone on the ground
when shot, the court will exclude his testimony on this issue.
Fifth, defendants move to exclude Lyman’s testimony that “it is likely that [Mr.
Smart] was defending himself from the original shooter”51 because it is “based on
speculation.”52

Plaintiffs do not address this argument.

The court agrees that this

conclusion is based on speculation of what Mr. Smart may have known at the time. As
such, it is impermissible and will be excluded.53
Finally, the court will not permit Lyman to testify about “inconsistencies” in
witnesses’ versions of events.54

Such testimony is in the nature of a credibility

determination—a determination of who is being truthful and who is not—which is in the
sole province of the jury. 55
The court will not parse Lyman’s 29-page report paragraph by paragraph
(particularly since many of the expressed opinions are no longer relevant to claims that
remain in the case), but expects the parties to apply the above rulings when Lyman is called

51

ECF No. 188-2 at 21.

52

ECF No. 188 at 14.

53

Choate, 2020 WL 774097, at *4 (“The Court will not permit experts to speculate
about what another person knew at a particular time.”).
54

See, e.g., 188-2 at 5-6 (opining on alleged inconsistencies in the statements of
Officers Froese and Chaffee).
Wilson, 303 F.3d at 1218 (“The credibility of witness testimony is a matter left to
the jury and generally is not an appropriate subject for expert testimony.”).
55

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as a witness at trial. Subject to something unexpected occurring at trial (such as the need
to impeach Lyman with a portion of his report), the court will exclude in whole the report
itself from admission as a trial exhibit.56 The court finds that admitting the report would
confuse the jury. The report is rife with legal definitions and, as noted above, it will be the
court’s role to instruct the jury on the law. Moreover, the report references events and legal
claims that are no longer relevant after the court’s summary-judgment rulings. The report
also contains a lengthy summary of the facts as Lyman understands them, but the court will
ask the jury to only consider the facts that have been presented through evidence at the
trial.
IT IS SO ORDERED.
Dated July 2, 2020, at Kansas City, Kansas.
s/ James P. O=Hara
James P. O=Hara
U.S. Magistrate Judge

56

See Law v. Nat’l Collegiate Athletic Assoc., 185 F.R.D. 324, 342 (D. Kan. 1999)
(“[A]n expert’s written report is generally inadmissible.”).
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