The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
ANTHONY R EFTHEMES CASE NO. 2:19-CV-01409
VERSUS JUDGE JAMES D. CAIN, JR.
AMGUARD INSURANCE CO ET AL MAGISTRATE JUDGE LEBLANC
MEMORANDUM ORDER
Before the court is a Daubert Motion to Strike the Testimony of Kerry Najolia [doc.
73], filed by defendants Amguard Insurance Company, Apex Transit LLC, and Malik
Aleem. Plaintiff Anthony Efthemes opposes the motion. Doc. 81.
I.
BACKGROUND
This suit arises from injuries sustained by plaintiff, an officer with the Louisiana
State Police, while assisting in the emergency pursuit of a vehicle along Interstate 10 in
Calcasieu Parish, Louisiana. Plaintiff was tasked with deploying “stop sticks” along the
interstate to intercept the target car, which was being pursued by several other police
vehicles with their lights and sirens activated. Defendant Malik Aleem, driving an 18-
wheeler, approached plaintiff’s point of interception around the same time as the target car
and his vehicle hit the stop sticks shortly after the plaintiff deployed them. This collision
caused a violent tug on the device cord, resulting in injuries to plaintiff’s left hand.
Plaintiff filed suit in state court against Aleem, his employer, and their insurer,
asserting that Aleem was liable for his injuries due to his negligent failure to yield
emergency vehicles, slow down, or otherwise attempt to avoid the hazard, and careless
operation of his vehicle. Doc. 1, att. 12. Defendants removed the matter to this court on the
basis of diversity jurisdiction, 28 U.S.C. § 1332. The matter is set for jury trial before the
undersigned on June 10, 2024. Doc. 63.
Plaintiff has submitted a report from Kerry Najolia, who was retained to offer
opinions on “policy, procedures, training, protocols, and the application of the tire-
deflation devices” relating to this incident. Doc. 73, att. 13, p. 1. Defendants now move to
exclude his testimony, arguing that his opinions do not satisfy the standards set forth in
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). Plaintiff opposes the motion, arguing that Najolia is well qualified and offers
helpful opinions based on his law enforcement experience on the plaintiff’s deployment of
stop sticks. Doc. 81.
II.
LAW & APPLICATION
A. Governing Law
The trial court serves as gatekeeper in determining the admissibility of expert
testimony, by making an initial determination of whether the expert’s opinion is relevant
and reliable. See Daubert, 509 U.S. at 589. This gatekeeping function extends to all expert
testimony, whether scientific or not. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147 (1999). Accordingly, Federal Rule of Evidence 702 provides that the court must
consider the following three requirements on challenges to experts: 1) qualifications of the
expert witness; 2) relevance of the proposed testimony; and 3) reliability of the principles
and methodology on which the testimony is based.1 The proponent of the expert testimony
bears the burden of proving its admissibility, by a preponderance of the evidence. Mathis
v. Exxon Corp., 302 F.3d 448, 459–60 (5th Cir. 2002).
The trial court has broad latitude in determining the admissibility of expert
testimony. Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Rejection of
expert testimony is the exception rather than the rule, and the court’s role as gatekeeper
“does not replace the traditional adversary system and the place of the jury within the
system.” Johnson v. Samsung Electronics Am., Inc., 277 F.R.D. 161, 165 (E.D. La. 2011);
Scordill v. Louisville Ladder Grp., LLC, 2003 WL 22427981, at *3 (E.D. La. Oct. 24,
2003). Instead, “[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
B. Application
Najolia issued two reports in this matter, in June 2021 and February 2024. Doc. 73,
atts. 7 & 13. In both documents he opined that Efthemes deployed the stop sticks “as he
was trained and in accordance with LSP policy, procedures and protocols.” Doc. 73, att. 7,
p. 8; doc. 73, att. 13, p. 8. To this end he noted the privileges accorded to law enforcement
in emergency pursuit. Doc. 73, att. 13, p. 7. He also emphasized that Efthemes was trained
1 The Daubert Court identified several additional factors for assessing whether the expert’s methodology is valid and
reliable, including whether the expert’s theory had been tested and subjected to peer review, the known or potential
error rate for the expert’s theory or technique, the existence and maintenance of standards and controls, and the degree
to which the technique or theory has been generally accepted in the scientific community. Moore v. Ashland Chemical,
Inc., 151 F.3d 269, 275 (5th Cir. 1998). However, the same standards cannot be applied to all possible fields of
expertise. Accordingly, the Daubert analysis is necessarily flexible and fact-specific. Kumho, 526 U.S. at 150.
not to wrap any part of the tire deflation device around any part of his body, and instead
“to hold the handle of the device, take the slack out and place the device across the road or
highway.” Id. He then concluded:
In my opinion, Trooper Efthemes deployed the tire deflation device
as he was trained in accordance with LSP policy, procedures and protocols.
Based on my opinion, this was an emergency situation, involving
numerous marked units with emergency lights and/or sirens activated
pursuing the violator and/or parked on either side of the highway which
provided drivers with sufficient warning that a special hazard was imminent.
The Troopers and other Officers were driving, acting and deploying
the tire deflation devices with due regard for the safety of others and
themselves.
Id. at 8–9. He allowed, however, that the trier of fact would determine the reasonableness
of each party’s actions and could conclude that “Mr. Malik’s actions may not have entirely
or partially contributed to Trooper Efthemes’s injury” if it determined that Efthemes had
not followed his training. Id.
Defendants do not challenge Najolia’s qualifications. Instead they argue that his
opinions are “thinly veiled jury charges” and should be excluded due to their potential to
confuse or mislead the jury. Doc. 73, att. 1, p. 9. To this end they first assert that he provided
no expert analysis. They also contend that his opinions consist of vague and conclusory
statements made with no connections to the sources he cited. They point to the following
statements in the report, asserting that they have no documentary support and no supporting
methodology:
• “The location that was chosen to deploy tire deflation devices was at the 19
Turnaround and I-10 eastbound.” Doc. 73, att. 13, p. 4.
• “Both LSP Troopers positioned their units and the tire deflation devices in an
authorized manner.” Id. at 5.
• “Mr. Malik drove over the tire deflation device as Trooper Efthemes removed the
device off of the roadway [and b]ased on that action, (9) nine of Mr. Malik’s truck
tires were flattened as he ran over the device.” Id. at 5.
• “The tires of the violator’s vehicle were flattened, and the violator vehicle came to
rest.” Id.
• “The violator vehicle was taken into custody. There were no civilian injuries or
property damage noted.” Id.
Id. at 12. Finally, they assert that Najolia’s opinions are duplicative of those that will be
elicited from two other plaintiff witnesses.
Najolia’s reports, however, reflect that his opinions on Efthemes’s use of stop sticks
are based on his years of law enforcement experience as well as his review of discovery
and relevant training materials. His application of law enforcement policies and
procedures, through the lens of his experience, to the facts of this incident is within the
realm of Rule 702 and potentially helpful to the trier of fact. Accord Brown v. Strain, 2010
WL 3523026, at *1 (E.D. La. Aug. 31, 2010). As for the challenged factual assertions,
these generally go “to the credibility of the testimony, not the admissibility, and it is up to
the opposing party to examine the factual basis for the opinion in cross-examination.” In
re Katrina Canal Breaches Consol. Litig., 2012 WL 4328354, at *1 (E.D. La. Sep. 20,
2012) (quoting Gen. Elec. Cap. Bus. Asset Funding Corp. v. S.A.S.E. Military Ltd., 2004
WL 5495590, at *4 (W.D. Tex. Oct. 21, 2004)). Finally, plaintiff may elect not to call the
witnesses whose testimony overlaps with Najolia’s opinion or may elect not to elicit
cumulative testimony. The court cannot determine before trial whether such overlap creates
a basis for exclusion. Accordingly, there is no basis at this point for excluding or limiting
the witness’s testimony.
I.
CONCLUSION
For the reasons stated above, the court ORDERS that the Daubert Motion [doc. 73]
be DENIED.
THUS DONE AND SIGNED in Chambers on the 2nd day of May, 2024.
UNITED STATES DISTRICT JUDGE
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