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Merritt v. State

United States District Court, D. Arizona

June 20, 2019

Leslie A. Merritt, Jr., Plaintiff,
State of Arizona; Bill Montgomery, Maricopa County Attorney; Maricopa County; Heston Silbert; Chirsopher Kalkowski; Frank Milstead; Ken Hunter; Kelly M. Heape; Jennifer Pinnow; Anthony Falcone, Defendants.


          David G. Campbell Senior United States District Judge.

         This action arises of out of Plaintiff Leslie Merritt's arrest, incarceration, and attempted prosecution for the I-10 freeway shootings in Phoenix, Arizona. Plaintiff asserts multiple claims for relief under 42 U.S.C. § 1983 and state law, including false arrest, false imprisonment, malicious prosecution, negligence, intentional infliction of emotional distress, and aiding and abetting. Doc. 8.

         Plaintiff has filed a motion to limit or preclude the testimony of defense experts Matthew Noedel and Joseph Grant. Doc. 254. The motion is fully briefed, and the oral argument requested by Defendants will not aid the Court's decision. Docs. 261, 263. The Court will grant Plaintiff's motion in part as to Noedel and deny the motion as to Grant.

         I. Background.

         Three of the I-10 freeway shooting incidents occurred on August 29, 2015, and a fourth occurred sometime between August 27 and 30, 2015. During its investigation of the shootings, the Arizona Department of Public Safety (“DPS”) recovered bullets and bullet fragments and eventually identified Plaintiff's Hi-Point C9 9mm handgun as the source for all four incidents. Docs. 34 at 3, 6; 261 at 2. Plaintiff had possession of his firearm until he pawned it on August 30, 2015, at about 5:31 p.m. Doc. 261 at 2.

         Plaintiff was arrested in September 2015. Plaintiff was released in April 2016 and the criminal case against him was dismissed without prejudice. Docs. 8 at 15; 34 at 10-11. After filing this action, Plaintiff settled with Defendants Maricopa County and William Montgomery. Doc. 203; 206. The remaining Defendants include the State of Arizona and DPS officers Heston Silbert, Christopher Kalkowski, Frank Milstead, Ken Hunter, Kelly M. Heape, Jennifer Pinnow, and Anthony Falcone. Doc. 34 at 2.

         The fourth shooting incident involved Andrew Hackbarth's 2014 BMW model 535i. On August 30, 2015, Hackbarth landed at Phoenix Sky Harbor Airport around 9:00 p.m. and returned to his BMW in the Terminal 2 parking lot where it had been parked since August 27. Docs. 261-2 at 4. Hackbarth got into the vehicle and noticed that the low tire pressure gauge was displayed. Id. at 4-5. All four tires were slightly below normal pressure (about 32 or 33 PSI out of 35-36), but the low pressure alert was specifically for the left front tire. Id. at 6. Hackbarth had noticed no tire pressure indicators before he parked at the airport on August 27. Id. at 10.

         On the way home, Hackbarth pulled off the freeway and stopped to fill up his tires. He noticed the left front tire was not filling, heard a hissing sound from inside the tire, and felt air coming out. He tried to drive home on surface streets rather than the freeway, but the air pressure in the tire continued to decrease to about 20 PSI and he had to pull over again. Id. at 11. Hackbarth eventually made it home and drove to the dealership the next day. A flattened bullet were found in the left front tire.

         Plaintiff alleges that the shooting of Hackbarth's tire occurred after he left the airport on August 30, more than four hours after Plaintiff pawned his firearm at 5:30 p.m. Doc. 8 at 7. As a result, Plaintiff argues, he could not have been the shooter. Plaintiff asserts that Defense experts Matthew Noedel and Joseph Grant will offer unsupported and speculative opinions “to change the timing of the shootings to coincide with the availability of [his] firearm.” Doc. 254 at 2-3. Defendants offer Noedel and Grant as rebuttal experts and to testify about the possibility that Hackbarth's tire was shot before Plaintiff's gun was pawned and yet retained air pressure for a time. Doc. 261.

         II. Legal Standard.

         Under Rule 702, a qualified expert may testify on the basis of “scientific, technical, or other specialized knowledge” if it “will assist the trier of fact to understand the evidence, ” provided the testimony rests on “sufficient facts or data” and “reliable principles and methods, ” and “the witness has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702(a)-(d). An expert may be qualified on the basis of “knowledge, skill, experience, training, or education.” Id. The proponent of expert testimony has the burden of showing the expert is qualified and the testimony admissible. See Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). The trial court must assure that expert testimony “both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).

         III. Discussion.

         Plaintiff moves to exclude or limit Noedel and Grant's testimony pursuant to Rules 104, 403, 702, 703, Daubert, and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), stating that they offer “unquantified possibilities of what might have occurred rather than what probably happened, ” and that their proposed testimony is unreliable, speculative, lacks sufficient scientific basis, and would confuse the jury. Doc. 254 at 2.

         A. ...

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