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Heller v. District of Columbia

United States District Court, District Circuit

July 8, 2013

DICK ANTHONY HELLER, et al., Plaintiffs,
v.
THE DISTRICT OF COLUMBIA, et al., Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

In this successor suit to District of Columbia v. Heller, 554 U.S. 570 (2008), Plaintiffs Dick Anthony Heller and others bring a Second Amendment challenge to a long list of D.C. restrictions on gun ownership. After lengthy proceedings before the original district court judge, the Court of Appeals for the D.C. Circuit remanded the matter for this Court to consider the constitutionality of certain of these provisions. In preparation for trial, Plaintiffs now separately move in limine to exclude three of Defendants’ proposed experts – Mark D. Jones, Cathy L. Lanier, and Joseph J. Vince, Jr. – arguing both that their expert reports fall short of the disclosure requirements under Fed.R.Civ.P. 26(a) and that their proposed testimony is too unreliable to be admitted under Fed.R.Evid. 702. While the reports may not be paragons, they are sufficient to withstand Plaintiffs’ Motions.

I. Background

Very soon after the Supreme Court invalidated D.C.’s handgun ban in Heller, the City Council imposed new restrictions on gun ownership, chiefly through a series of registration requirements. Plaintiffs then immediately filed this action, claiming that these new restrictions still violated the Second Amendment and were in excess of the District’s home-rule authority. Judge Ricardo M. Urbina, to whom this case was previously assigned, ultimately granted summary judgment to the District, see Heller v. District of Columbia, 698 F.Supp.2d 179 (D.D.C. 2010), but the D.C. Circuit reversed his decision in part and remanded the case to this Court for further consideration of certain of the registration requirements for handguns and all registration requirements for long guns. See Heller v. District of Columbia, 670 F.3d 1244, 1260 (D.C. Cir. 2011). After additional amendments to the Complaint, the parties began discovery, which is to conclude July 31, 2013. See Minute Order, June 27, 2013.

On April 19, 2013, the District served Plaintiffs with expert disclosures pursuant to Fed.R.Civ.P. 26(a)(2), identifying Mark D. Jones, Cathy L. Lanier, and Joseph J. Vince, Jr. as expert witnesses. See Opp. at 2. Jones is “a former agent for the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), with more than 30 years[’] experience in law enforcement, who was assigned to the District of Columbia for more than [seven] years and has participated in more than 100 Federal, state, and local law-enforcement arrests involving unlawful firearms possession, illegal firearms trafficking, misuse of firearms, and firearm-related violence.” See Opp. at 2 (citing Mot. to Strike Expert Testimony of Mark D. Jones, Exh. 1 (Expert Report of Mark D. Jones) at 1). He proffers opinions on the importance of the one-gun-per-thirty-day-period limitation, the in-person registration and renewal requirements, the safety and training requirements, and the requirement to inform law-enforcement officials of the sale, transfer, or loss of ownership of a firearm. See id. Lanier is “the Chief of Police for the Metropolitan Police Department of the District of Columbia (“MPD”), with over 20 years of law-enforcement experience (all of it in the District) and is responsible for overseeing MPD’s efforts to prevent gun violence, and arrest and prosecute violent criminal offenders.” See Opp. at 2 (citing Mot. to Strike Expert Testimony of Cathy L. Lanier, Exh. 1 (Expert Report of Cathy L. Lanier) at 1). She opines about law-enforcement challenges unique to the District and about the importance of in-person background checks, safety and training requirements, and registration certificates. See id. Vince is “also a former ATF agent with nearly 30 years[’] experience investigating the illegal trafficking of firearms and the diversion of firearms for illegal purposes.” See Opp. at 2 (citing Mot. to Strike Expert Testimony of Joseph J. Vince, Jr., Exh. 1 (Expert Report of Joseph J. Vince, Jr.) at 1). Vince opines regarding the benefits and burdens of several of the registration requirements, including long-gun registration, the thirty-day rule, in-person registration and renewal, safety training, and the notification obligation. See id.

Plaintiffs now move in limine to strike the reports and exclude the proposed expert testimony. Although Plaintiffs’ Motions were filed before any of Defendants’ experts could be deposed, the parties have represented to the Court in a conference call on June 27, 2013, that these depositions have now taken place.

II. Analysis

Plaintiffs challenge Defendants’ proposed expert testimony under two similar, but distinct, legal regimes. First, Plaintiffs assert that Defendants’ expert reports fail to comply with the disclosure requirements of Fed.R.Civ.P. 26(a). Second, they contend that the proposed expert testimony fails to meet the reliability requirements of Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). The Court will consider each in turn.

A. Rule 26(a)

Plaintiffs first argue that Defendants’ proposed expert testimony must be struck because the disclosure statements they served for Jones, Lanier, and Vince do not satisfy the requirements of Fed.R.Civ.P. 26(a). Each expert report, in Plaintiffs’ view, “is devoid of ‘facts or data considered by the witness’ in forming his ‘opinions.’” See Jones Mot. to Strike at 5 (quoting Fed.R.Civ.P. 26(a)(2)(B)); Lanier Mot. to Strike at 5; Vince Mot. to Strike at 5. Defendants take issue with this characterization, contending that “each of the challenged reports is rife with facts and data.” See Opp. at 6. Defendants have the better of this argument: while the expert reports may be terse, they provide sufficient information to comply with the goals and requirements of Rule 26(a).

Fed. R. Civ. P. 26(a)(2) provides that a “party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Id. Disclosures must ordinarily be supplemented by a written report, prepared and signed by the witness, including the substance of the opinions the expert plans to offer and the facts and data he relies upon. Id. For proposed experts who regularly provide expert testimony or have been specifically retained to do so, the report must also detail the witness’s qualifications, his past history as an expert, and his compensation. Id. “The purpose of Rule 26(a)(2) is to prevent unfair surprise at trial and to permit the opposing party to prepare rebuttal reports, to depose the expert in advance of trial, and to prepare for depositions and cross-examinations at trial.” Minebea Co., Ltd. v. Papst, 231 F.R.D. 3, 5-6 (D.D.C. 2005); see also Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007) (“The purpose of the rule is to eliminate ‘unfair surprise to the opposing party.’”) (quoting Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir. 1995)).

Under Rule 37(c)(1), if a party fails to comply with these disclosure requirements, “the party is not allowed to use that . . . witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). “In addition to or instead of this sanction, ” courts may provide alternative sanctions, including informing the jury of the party’s failure, awarding costs and attorney fees to the prejudiced party, or any of the other sanctions listed in Rule 37(b)(2)(A)(i)-(vi). Id.

The reports here do comply with the requirements of Rule 26(a)(2). Each contains a complete list of the expert’s opinions and the “facts and data considered by the witness.” See Rule 26(a)(2). For example, the Vince report outlines each of his opinions and provides a comprehensive list of documents he reviewed in reaching such opinions. See Vince Report at 2. He goes on to state that “[t]he opinions that I articulate in this report are based on my experience, my review of numerous studies and books, the District of Columbia’s firearms laws and regulations, and discovery materials from this case made available to me. The materials I used to formulate my opinions are listed above.” See id. Jones and Lanier make identical claims. See Jones Report at 4; Lanier Report at 2. Each expert further describes – at great length – the experience he or she drew upon in reaching these opinions. See Jones Report at 1-3; Lanier Report at 1-2; Vince Report at 1-2, 8-10. Because all of these experts explain their experience and the knowledge they have accumulated over many years in the field, the reports provide Plaintiffs with precisely the kind of notice envisioned by Rule 26(a) – notice sufficient to “prevent unfair surprise at trial and to permit the opposing party to prepare rebuttal reports, to depose the expert in advance of trial, and to prepare for depositions and cross-examinations at trial.” Minebea Co., 231 F.R.D. at 5-6.

Other courts within this jurisdiction have arrived at similar conclusions, rejecting the idea that “an expert report must be sufficiently complete that no deposition of the expert should be needed to prepare to cross examine him, ” and denying motions to strike expert testimony where the expert’s “opinions . . . are all in the report and [the opposing party] had the opportunity to depose [the expert] to examine more fully the bases for his opinions.” Evans v. WashingtonMetro. Area Transit Auth., 674 F.Supp.2d 175, 180-81 (D.D.C. 2009) (emphasis removed). Indeed, the D.C. Circuit has clearly stated that Rule 26 “‘does not limit an expert’s testimony simply to reading his report. . . . The rule contemplates that the expert will supplement, elaborate upon, [and] explain . . . his report’ in his oral testimony.” Muldrow, 493 F.3d at 167 (quoting Thompson v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir. ...


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