Lakey et al v. Taylor et al

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CYNTHIA LAKEY and DOUGLAS
LAKEY, as co-Special Administrators for the
Estate of Jared Lakey,
Plaintiffs,
v.
1. 	CITY OF WILSON,
2. 	JOSHUA TAYLOR, in his official and
individual capacities,
3. 	BRANDON DINGMAN, in his individual
capacity,
4. 	CHRIS BRYANT, in his official and
individual capacities as Sheriff of Carter
County,
5. 	DAVID DUGGAN, in his individual
capacity,
6. 	LONE GROVE,
7. 	TERRY MILLER, in his individual
capacity, and
8. 	KEVIN COOLEY, in his official and
individual capacities,
Defendants.
Case No. CIV-20-152-RAW
ORDER
Before the Court is Plaintiff, Estate of Jared Lakey’s Motion to Limit or Exclude the Expert
Opinion of Mark Kroll. [Dkt. No. 351].
I. 	Standards governing admissibility of expert testimony.
Pursuant to Rule 702 Fed. R. Evid. (as interpreted in Daubert) a district court must satisfy
itself that the proposed expert testimony of an expert is both reliable and relevant before permitting
the jury to assess such testimony. United States v. Wofford, 766 Fed. Appx. 576, 581 (10th Cir.
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2019); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993). The Rule
provides that:
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:
(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.
Fed. R. Evid. 702. 	Reliability is determined by evaluating the reasoning and methodology
underlying the expert's opinion. Relevance is about whether the expert testimony will assist the
trier of fact or whether it instead falls within the juror's common knowledge and experience and
will usurp the juror's role of evaluating a witness's credibility. Wofford, 766 Fed. Appx. at 581.
The Supreme Court set forth the following non-exclusive factors a court should consider
when evaluating the admissibility of proposed expert testimony: (1) can and has the theory been
tested; (2) has it been peer reviewed; (3) does it have a known or potential error rate; (4) the
existence and maintenance of standards controlling its operation; (5) does it have widespread
acceptance within the relevant scientific community. Daubert, 509 U.S. at 593. The inquiry into
these factors is “a flexible one,” and the focus is “on principles and methodologies, not on the
conclusions that they generate.” Id. The party seeking the admission of the expert testimony has
the burden to establish it’s admissibility by a preponderance of the evidence. Id. at 592 n.10. The
trial court must decide whether this particular expert has sufficient specialized knowledge to assist
the jurors in deciding the facts at issue in the case the case.” Kumho, 526 U.S. at 157, 119 S.Ct.
1167; Graves v. Mazda Motor Corp., 675 F. Supp. 2d 1082, 1092 (W.D. Okla. 2009), aff'd, 405
F. App'x 296 (10th Cir. 2010).
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In fulfilling its Daubert obligations a trial court must also determine whether proposed
testimony is sufficiently “relevant to the task at hand.” 509 U.S. at 597. Relevant evidence “means
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence.”
Fed.R.Evid. 401; Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1234 (10th Cir.2004). The Supreme
Court has held that a trial court must evaluate the logical relationship between the evidence
proffered and the material issue that evidence supports to determine if the expert will assist the
trier of fact. Id. In the Tenth Circuit, courts carry out the Daubert gatekeeping function by applying
a two-step analysis. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 956, 969 (10th Cir. 2001).
First, the court must determine whether the proposed expert is qualified. This requires an
assessment of his “knowledge, skill, experience, training or education.” See Rule 702 and Ralston,
275 F.3d at 969. Secondly, if the proposed expert is determined to be sufficiently qualified, the
court must determine whether his opinions are “reliable” in the sense required by Daubert and
Kumho. Id.
II. 	Analysis.
Defendants Joshua Taylor and Brandon Dingman filed an Expert Disclosure indicating
they intend to call Mark Kroll to testify as an expert regarding the use of tasers on the decedent
Jared Lakey. [Dkt. No. 252-2]. Mark Kroll has a Ph.D. in electrical engineering and research
experience involving tasers and biomedical applications of electrical engineering. He has also
testified in a variety of legal proceedings in the United States and internationally. [Dkt. No. 252-2
pp. 71-157]. 	Plaintiff objects to several of Dr. Kroll’s opinions arguing that he is either not
qualified, the opinion is does not require specialized training, or that it is irrelevant to the present
case. [Dkt. No. 351 pp.1-2].
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Regarding Plaintiff’s objection to Opinion 1, we agree with Plaintiff that Dr. Kroll’s
determination that Defendant Taylor “exhibited significant restraint of his use of CEW” is not one
that requires an expert opinion as it does not rely on Dr. Kroll’s specialized knowledge. Whether
Defendant 	Taylor 	exhibited 	restraint 	is 	a 	subjective 	belief 	that 	does 	not 	require 	expert
qualifications. Therefore, his opinion is not helpful to the jury and should be excluded. See Sims
v. Great American Life Ins. Co., 469 F.3d 870, 889 (10th Cir. 2006).
The Plaintiff objects to Opinions 4-7 because in each opinion Dr. Kroll asserts that Mr.
Lakey could not have been electrocuted by Dingman and Taylor’s TASER usage. For instance,
Opinion 6 states that “Mr. Lakey’s cardiac arrest rhythm was asystole thus eliminating the
possibility of electrocution”. [Dkt. No. 351 at pp. 2-4]. As the Plaintiff points out, the Estate does
not argue that Mr. Lakey was electrocuted by the repeated TASER administrations. Rather, the
Estate, and the Medical Examiner assert that a buildup of lactic acid resulting in rhabdomyolysis
brought on by the repeated TASER applications killed Mr. Lakey. Id. Because no one is arguing
that Mr. Lakey was electrocuted, the opinions regarding electrocution are not relevant to the
determination of any fact at issue in the present case and will therefore be unhelpful to the jury.
Daubert, 509 U.S. at 597.
Furthermore, we agree that Dr. Kroll, who is an electrical engineer, does not have the
relevant “knowledge, skill, experience, training or education.” expertise to proffer Opinion 8 and
Opinion 9 where he asserts that the taser did not contribute to Mr. Lakey’s death. See Rule 702
and Ralston, 275 F.3d at 969.
The Defendants have not carried their burden to show that Dr. Kroll’s Opinions are
admissible by a preponderance of the evidence. Daubert, 509 U.S. at 592 n.10. It is therefore
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ordered by the Court that the Plaintiff’s motion to exclude Mark Kroll’s testimony [Dkt. No.
351] is GRANTED.
IT IS SO ORDERED this 2 nd day of January, 2024.
__________________________________
HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
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