United States District Court, D. Arizona
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.
G. Campbell Senior United States District Judge.
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.
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.
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.
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.
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.
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.
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.
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).
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.