Frasure v. City of Wyoming

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JOSEPH FRASURE, et al., Civil Action No. 1:24-cv-92

Plaintiffs, Litkovitz, M.J.

vs.

CITY OF WYOMING, OHIO, et al., ORDER

Defendants.

This matter is before the Court on defendants’ Daubert motion and motion in limine

regarding plaintiff’s purported expert witness, Lawrence Hunter (Doc. 65). Plaintiffs opposed

the motion (Doc. 67), and defendants filed a reply (Doc. 72).

I. BACKGROUND

A. Facts

On January 30, 2023, Wyoming, Ohio police officers pointed a weapon at plaintiff

Joseph Frasure, Sr., and fatally shot his son, Joseph Frasure, Jr., while responding to a report of a

burglary in progress. Plaintiffs filed this action pursuant to 42 U.S.C. § 1983, alleging, among

other claims, that the officers employed excessive force in violation of the Fourth Amendment.

(Docs. 1, 52).

Plaintiffs retained Lawrence Hunter, a retired police captain from Connecticut, as an

expert witness in this case. Dr. Hunter produced a report which plaintiffs attached to their

complaint. (Doc. 1-1).1 Pursuant to the Court’s Amended Calendar Order, the parties were

1 The report attached to plaintiffs’ complaint (Doc. 1-1) appears identical to the report attached to defendants’

Daubert motion and motion in limine (Doc. 65-1). For ease of citation and to minimize toggling between various

documents, the Court will cite to the copy attached to the instant motion in limine.

required to disclose expert witnesses and submit expert reports no later than February 3, 2025.

(Doc. 28). Defendants deposed Dr. Hunter on March 17, 2025 (Doc. 65-6), and then filed the

instant motion to exclude or, alternatively, to limit Dr. Hunter’s expert testimony (Doc. 65).

Plaintiffs oppose defendants’ motion (Doc. 67).

B. Procedural Posture

Defendants have moved to exclude any opinion evidence offered by plaintiffs’ purported

expert, Dr. Lawrence Hunter, because plaintiffs failed to comply with Federal Rule of Civil

Procedure 26(a)(2)(B) and because Federal Rule of Evidence 702 and Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993) bar Dr. Hunter’s testimony. (Doc. 65). Specifically,

defendants contend that plaintiffs’ disclosure did not comply with Rule 26 because: Dr. Hunter

did not sign his report; he failed to identify the facts or data considered in forming his opinion;

he failed to disclose his qualifications, including a list of all publications authored in the last ten

years; and he failed to provide his deposition and trial testimony history from the last four years.

(Doc. 65 at PAGEID 2786-90). Defendants further contend that Rule 702 bars Dr. Hunter’s

testimony because he is not qualified to render an expert opinion on excessive force (id. at

PAGEID 2791-92); his opinion does not assist the fact finder because it infringes on the province

of the Court and the jury by applying legal precedent and deciding the ultimate issue (id. at

PAGEID 2792-94); and his opinion does not meet the requirements for reliability (id. at

PAGEID 2794-2804).

Plaintiffs counter that the Rule 26 “procedural errors” in submitting Dr. Hunter’s report

were due to inexperience and have been or will be corrected. (Doc. 67 at PAGEID 2933-35).

Plaintiffs further argue that Dr. Hunter’s law enforcement experience and related education

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qualify him as an expert in this case (id. at PAGEID 2935-36); Dr. Hunter’s methodology was

reliable (id. at PAGEID 2936-38); Dr. Hunter’s testimony will assist the trier of fact (id. at

PAGEID 2938-42); and Dr. Hunter’s testimony should not be limited (id. at PAGEID 2942-43).

II. RULE 26 REQUIREMENTS

Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), an expert disclosure must

include:

(i) a complete statement of all opinions the witness will express and the basis and

reasons for them; (ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them; (iv) the witness’s

qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified

as an expert at trial or by deposition; and (vi) a statement of the compensation to be

paid for the study and testimony in the case.

“Rule 26 mandates disclosure from each side of a case to enable the other side to prepare for trial

and to prevent surprise tactics from affecting the case’s outcome.” Baker v. Blackhawk Mining,

LLC, 141 F.4th 760, 772 (6th Cir. 2025). The rule “places a ‘level of rigor and detail’ on

disclosing expert testimony[,]” and “[t]he expert opinion must ‘outline a line of reasoning arising

from a logical foundation’ and ‘include the “how” and “why,” not just his conclusions.’” Id.

(quoting Adkins v. Marathon Petroleum Co., LP, 105 F.4th 841, 850 (6th Cir. 2024)).

If a party fails to comply with Rule 26(a) or supplement disclosures as required by Rule

26(e), Rule 37(c) “prohibits the party from using ‘that information or witness to supply evidence

on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is

harmless.’” Baker, 141 F.4th at 772 (quoting Fed. R. Civ. P. 37(c)(1)). Failure to timely provide

the facts or data considered by the witness in forming his opinion or failure to provide a

comprehensive list of all cases in which an expert has testified in the previous four years renders

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the disclosure deficient under Rule 26. Id. at 773 (rejecting the plaintiffs’ claim that such

information was “worthless” or otherwise “derived from freely available public resources”).

“When an expert disclosure is deficient under Rule 26(a), Rule 37 exclusion is ‘mandatory

unless there is a reasonable explanation of why Rule 26 was not complied with or the mistake

was harmless.’” Id. (quoting Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596

F.3d 357, 370 (6th Cir. 2010)).

In this case, plaintiffs’ counsel acknowledges that she inadvertently failed to timely

satisfy the Rule 26(a)(2)(B) requirements because “Dr. Hunter and [p]laintiffs’ counsel are

relatively inexperienced in the procedural rules regarding experts.” (Doc. 67 at PAGEID 2934).

Plaintiffs attached Dr. Hunter’s unsigned report to their complaint. (Doc. 1-1). However,

plaintiffs failed to provide Dr. Hunter’s “qualifications, including a list of all publications

authored in the previous 10 years” or the list of cases in which he testified during the previous

four years, as Rule 26(a)(2)(B)(iv) and (v) require. Regarding the Rule 26(a)(2)(B)(ii)

requirement that an expert provide the facts or data considered in forming his opinion, Dr.

Hunter stated:

To prepare for this case, Atty Smith sent me numerous videos, court documents,

dispatch audio, the Wyoming (OH) Police Duty Manual, and other pertinent

materials. I reviewed all materials provided by Atty Smith, with particular

emphasis on the body-worn cameras, video-recorded officer interviews, Hamilton

County press release, and crime scene photos.

(Doc. 65-1 at PAGEID 2814).

On December 30, 2024, defendants’ counsel emailed plaintiffs’ counsel specifically

directing her attention to Rule 26(a)(2)(B) and asking that plaintiffs supplement their expert

disclosures to comply with that Rule. (Doc. 65-2 at PAGEID 2843). The email also notified

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plaintiffs’ counsel that failure to timely supplement Dr. Hunter’s expert disclosure would result

in a motion to strike and/or limit his testimony. (Id.).

On February 13, 2025, defendants’ counsel again emailed plaintiffs’ counsel indicating

that they still had not received Dr. Hunter’s expert disclosure supplement, as required by the

Federal Rules of Civil Procedure. (Doc. 65-3 at PAGEID 2845). When plaintiffs’ counsel

responded that she had “sent the below Hunter report four times,” defendants’ counsel again

reiterated that they were not asking for Dr. Hunter’s report, stating:

Merely providing Dr. Hunter’s report is not the same as disclosing an expert

witness. As you know, a party cannot just disclose an expert by providing a report

– a party must provide other information as well. The issue is not the production

of his report – it is everything else required by Fed. R. Civ. P. 26(a)(2) when

disclosing expert witnesses – which Plaintiffs have not provided.

(Doc. 65-4 at PAGEID 2848-49). Defendants’ counsel then referenced his December 30, 2024

email and again outlined the deficiencies. (Id. at PAGEID 2849). Plaintiffs’ counsel then

indicated that she would ask Dr. Hunter for “information regarding publication and testimony.”

(Doc. 65-4 at PAGEID 2848).

On March 17, 2025, defendants deposed Dr. Hunter. (Doc. 65-6 at PAGEID 2855). At

his deposition, Dr. Hunter testified that the “case experience” list he provided following

defendants’ February 13, 2025 emails still did not disclose his testimony history because he

listed cases in which he had been retained to prepare a report, even if he did not testify or prepare

the report requested. (Hunter Depo., Doc. 65-6 at PAGEID 2876-77).

More importantly, Dr. Hunter—even at his deposition—failed to identify all of the facts,

data, or exhibits he considered in analyzing the officers’ actions and reaching his conclusions.

His report noted that he considered “numerous videos, court documents, dispatch audio, the

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Wyoming (OH) Police Duty Manual, and other pertinent materials” that plaintiffs’ counsel sent

to him. (Doc. 65-1 at PAGEID 2814). When deposed on March 17, 2025—well after the expert

discovery deadline—Dr. Hunter testified:

It’s on my hard drive at home, so I can’t give you an exhaustive list, but I certainly

can create a supplement to expose that. There was the 9-1-1 tape. There were other

body-worn cameras by officers who were not at the scene. Other body-worn

cameras from different officers. There were some reports, some data logs, dispatch

times, things along those lines.

(Doc. 65-6 at PAGEID 2884). Dr. Hunter acknowledged that he did not disclose prior to his

deposition all of the facts or data that he considered in forming his opinions (id.), and he was

unable to recall specific videos, recorded interviews, or other documents that he considered in

forming his opinions. (Id. at PAGEID 2884-87).

As plaintiffs admit that Dr. Hunter’s expert report failed to comply with Rule 26(a)(2),

they “can avoid the exclusion sanction by showing that [their] failure to comply with Rule 26

was ‘substantially justified’ or ‘harmless.’” Adkins, 105 F.4th at 849-50 (quoting Fed. R. Civ. P.

37(c)(1)). See RJ Control Consultants, Inc. v. Multiject, LLC, 100 F.4th 659, 668 (6th Cir. 2024)

(Where party fails to comply with Rule 26(a)’s requirements, “exclusion of such evidence is

‘automatic and mandatory’ unless the offending party can show that its nondisclosure was

substantially ‘justified or harmless.’”) (quoting Dickenson v. Cardiac & Thoracic Surg. of E.

Tenn., P.C., 388 F.3d 976, 983 (6th Cir. 2004)).

Courts consider the following factors in assessing substantial justification and

harmlessness:

(1) the surprise to the party against whom the evidence would be offered; (2)

the ability of that party to cure the surprise; (3) the extent to which allowing the

evidence would disrupt the trial; (4) the importance of the evidence; and (5) the

nondisclosing party’s explanation for its failure to disclose the evidence.

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RJ Control Consultants, Inc., 100 F.4th at 668-69 (quoting Howe v. City of Akron, 801

F.3d 718, 748 (6th Cir. 2015)). The Howe factors need not be applied rigidly, and district

courts enjoy broad discretion in applying them. Id. at 669. “The factors simply lend

themselves to the task at the heart of Rule 37(c)(1): separating ‘honest,’ harmless

mistakes from the type of ‘underhanded gamesmanship’ that warrants the harsh remedy

of exclusion.” Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 219 (6th Cir. 2019)

(quoting Bentley v. Highlands Hosp. Corp., No. cv 15-97, 2016 WL 5867496, at *10

(E.D. Ky. Oct. 6, 2016)).

The first Howe factor weighs in favor of exclusion. Even where a plaintiff has disclosed

his expert’s identity, area of expertise, and brief summary, a defendant experiences surprise and

would have difficulty combating the expert’s testimony at trial without more information. RJ

Control Consultants, 100 F.4th at 669. Indeed, the “federal rule contemplates not only the

identification of the expert, but also the provision of a written report containing a complete

statement of all opinions and the basis and reasons therefor.” Id. (quoting Reese v. Herbert, 527

F.3d 1253, 1265 (11th Cir. 2008) (internal quotation marks omitted). While Dr. Hunter’s

opinions are unsurprising given that his report was provided to defendants at the litigation’s

outset, the facts and information he considered in forming those opinions remain largely

unknown. Defendants attempted to cure that surprise by referring plaintiffs’ counsel to the Rule

26(a)(2)(B) requirements via emails in December 2024 and February 2025 and by deposing Dr.

Hunter. (Doc. 65-2 at PAGEID 2843; Doc. 65-3 at PAGEID 2845; Doc. 65-4 at PAGEID 2848;

Doc. 65-6 at PAGEID 2884-87). However, those efforts were unsuccessful as Dr. Hunter

acknowledged that he did not adequately include that information in his report and testified at his

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deposition that he was unable to recall the specific information he considered in forming his

opinions. (Doc. 65-6 at PAGEID 2884-87). See EQT Production Co. v. Magnum Hunter

Produc., Inc., 768 F. App’x 459, 468-69 (6th Cir. 2019) (finding surprise analysis weighed in

favor of exclusion where damages calculation witness failed to disclose data underlying his

opinion prior to his deposition). But see American Power, LLC v. Harris, Nos. 3:17-cv-347 and

3:21-cv-21, 2024 WL 5200803, at *2 (S.D. Ohio Dec. 23, 2024) (finding no surprise even

though plaintiff failed to timely comply with Rule 26(a)(2)(B) where defendant received expert’s

report well before the deadline and could have deposed him but did not).

The second and third Howe factors weigh slightly in favor of exclusion. In some cases,

courts have held that the ability to cross-examine witnesses by subsequent deposition or at trial

may remedy the surprise and minimize impact on the trial. Howe, 801 F.3d at 749; American

Power, 2024 WL 5200803, at *3 (citing Howe). In other cases, courts have upheld exclusion to

avoid rescheduling trial or reopening discovery once it has closed because “allowing expert

testimony would require the non-defaulting party ‘to bear the effort and expense necessary to

cure [plaintiffs’] failure to disclose,’ which ‘would arguably reward [plaintiffs] for [their]

untimeliness and does nothing to deter similar conduct from future litigants.” RJ Control

Consultants, 100 F.4th at 669-70 (quoting EQT Production Co., 768 F. App’x at 469).2 In this

case, defendants possessed Dr. Hunter’s report well before the expert discovery deadline,

requested supplementation twice, and travelled to Connecticut to depose Dr. Hunter. Now, after

discovery is over and motions for summary judgment are pending, plaintiffs still have not

2 In EQT Production Co., the Court noted that it had, at times, “held that the ability to cross-examine witnesses

about late disclosures during trial both provided an opportunity to remedy surprise and minimized impact on the

trial” and deemed those Howe factors “to be neutral, not pulling clearly in favor of or against” exclusion. 768 F.

App’x at 469.

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provided the specific information Dr. Hunter considered in forming his opinions. Requiring the

disclosure of information and items considered in forming an expert opinion “ensures parties

have the information they need to assess an expert’s opinions and to effectively cross-examine

him.” Brainchild Surgical Devices, LLC v. CPA Global Ltd., 144 F.4th 238, 256 (4th Cir. 2025).

Under the circumstances present in this case, the Court finds that the second and third Howe

factors weigh slightly in favor of excluding Dr. Hunter’s report from consideration.

The fourth factor—the importance of the evidence—is frequently described as

“cut[ting] both ways.” RJ Control Consultants, 100 F.4th at 670 (quoting Bisig, 940 F.3d

at 220). “The more important the proof, the greater the effect of preclusion, but also the

greater the harm in tardy disclosure.” Id. (quoting Bisig, 940 F.3d at 220). As will be

more fully examined below, Dr. Hunter’s report is not particularly important to the

resolution of this matter. Thus, this factor neither weighs for nor against either party.

Finally, as their explanation for failing to comply with Rule 26(a)(2)(B), plaintiffs

state only that “Plaintiffs’ counsel receives voluminous, verbose, communications from

Defendants[, and] Dr. Hunter and Plaintiffs’ counsel are relatively inexperienced in the

procedural rules regarding experts.” (Doc. 67 at PAGEID 2934). This factor weighs in

favor of exclusion. Even after defendants repeatedly referred plaintiffs to the appropriate

requirements and the applicable federal rule, plaintiffs failed to comply. Indeed, in the

memorandum in opposition to defendants’ Daubert motion, plaintiffs still fail to

understand that the Rule 26 requirements for expert witness disclosures are not “harmless

technicalities” (Doc. 67 at PAGEID 2935) or that Dr. Hunter’s vague references to “other

pertinent materials” and “materials provided by Atty Smith” do not satisfy Rule

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26(a)(2)(B). The expert disclosure rule specifically requires that an expert report “must

contain” “the basis and reasons” for his opinions, “the facts or data considered by the

witness in forming them,” the witness’s qualifications (including publications in the last

10 years), and a four-year list of prior testimony. Fed. R. Civ. P. 26(a)(2)(B).

To summarize, application of the Howe factors indicates that plaintiffs’ failure to

comply with Rule 26(a)(2)(B) was neither substantially justified nor harmless.

Accordingly, Rule 37(c)(1) requires that Dr. Hunter’s opinions be excluded as evidence

on summary judgment and at trial.

III. RULE 702 AND DAUBERT INQUIRIES

Although Dr. Hunter’s opinions should be excluded pursuant to Federal Rule of Civil

Procedure 37(c)(1), in the alternative and in the interest of thoroughness, the Court will evaluate

whether Dr. Hunter’s report satisfies the requirements imposed by Federal Rule of Evidence 702.

Pursuant to Rule 702:

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.

Rule 702 entrusts courts with a “‘gatekeeping role’ to ‘ensur[e] that an expert’s testimony both

rests on a reliable foundation and is relevant.’” In re Onglyza (Saxagliptin) and Kombiglyze

(Saxagliptin and Metformin) Prods. Liab. Litig., 93 F.4th 339, 345 (6th Cir. 2024) (quoting

Daubert, 509 U.S. at 597). As the Sixth Circuit has explained:

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Parsing the language of [Rule 702], it is evident that a proposed expert’s opinion is

admissible, at the discretion of the trial court, if the opinion satisfies three

requirements. First, the witness must be qualified by “knowledge, skill, experience,

training, or education.” Fed. R. Evid. 702. Second, the testimony must be relevant,

meaning that it “will assist the trier of fact to understand the evidence or to

determine a fact in issue.” Id. Third, the testimony must be reliable. Id.

In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008). See also United States

v. Anderson, 67 F.4th 755, 767 (6th Cir. 2023). The party proffering the expert must show by a

preponderance of the evidence that Rule 702 is satisfied. Davis v. Sig Sauer, Inc., 126 F.4th

1213, 1223-24 (6th Cir. 2025). Of course, “rejection of expert testimony is the exception, rather

than the rule.” Id. at 1224 (quoting In re Scrap Metal Antitrust Litig., 527 F.3d at 530).

A. Qualifications

Defendants contend that Dr. Hunter is not qualified to render opinions about whether the

officers’ use of deadly force3 was “excessive” because he lacks specialized education or

experience in processing or investigating crime scenes, officer-involved shootings, or ballistics.

(Doc. 65 at PAGEID 2791-92). A witness cannot qualify as an expert “simply because he self-

identifies as such,” but the Sixth Circuit takes a “liberal view” of what satisfies Rule 702’s

“knowledge, skill, experience, training, or education” requirement. Bradley v. Ameristep, Inc.,

800 F.3d 205, 209 (6th Cir. 2015). “Whether a proposed expert’s experience is sufficient to

qualify the expert to offer an opinion on a particular subject depends on the nature and extent of

that experience.” Id.; American Strategic Ins. Corp. v. Meyer, No. 1:23-cv-119, 2025 WL

3 Dr. Hunter’s report states that he was “hired as an expert in the use of force to determine whether the actions taken

by Officers Jones and Batts were reasonable in accordance with established court decisions and best law

enforcement practices” and whether “the officers involved in killing Joe Frasure, Jr. fire[d] their weapons

unnecessarily, or could they have found a different method to apprehend him?” (Doc. 65-1 at PAGEID 2812, 2820).

Dr. Hunter was asked at his deposition whether he offered any opinions on the actions of Officer Warmack, and he

testified, “So, I only looked at the shooting, the officers who fired their weapons. That was what I was looking at.”

(Doc. 47-1 at PAGEID 1340-41).

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845560, at *3 (S.D. Ohio Mar. 18, 2025) (same quotation). “[T]he issue with regard to expert

testimony is not the qualifications of a witness in the abstract, but whether those qualifications

provide a foundation for a witness to answer a specific question.” Madej v. Maiden, 951 F.3d

364, 370 (6th Cir. 2020) (quoting Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994)).

Plaintiff’s expert, Lawrence Hunter, “spent 24 years in policing,” retiring from the

Waterbury, Connecticut Police Department at the rank of captain. (Doc. 65-1 at PAGEID 2812).

He holds a Ph.D. in leadership with a concentration in criminal justice and a master’s degree in

forensic psychology. (Id. at PAGEID 2813).4 He previously commanded the Professional

Standards Unit in Waterbury, which included “Internal Affairs, Inspectional Services, and

Training Divisions.” (Id.). His duties in that role included “reviewing and investigating Use of

Force reports (Response to Resistance)” and investigating citizen complaints of officers’ use of

excessive force. (Id.). Dr. Hunter was retained as an expert in the use of force to evaluate the

defendant officers’ use of lethal force in this case. (Doc. 65-6 at PAGEID 2882).

On the record as it stands, the Court is unwilling to deem Dr. Hunter “unqualified” to

evaluate a police use of force.5 Employing a liberal view of Dr. Hunter’s education and

4 On the record before the Court, it is difficult to determine whether Dr. Hunter has taken or taught courses relevant

to the issues in this case. He listed in his report some classes he has taken and that he is “Force Science certified.”

(Doc. 65-1 at PAGEID 2813; see also Doc. 47-3, Doc. 67-3). However, he testified at deposition that he did not

examine the physics or mechanics of the shooting in this case, and he “wasn’t looking at it as a [force] scientist.

[He] was looking at it as an expert in police practices and what practices should be employed when doing

something.” (Doc. 65-6 at PAGEID 2870-71).

5 Defendants contend that Dr. Hunter does not adequately connect his knowledge and experience to his approach to

this case. (Doc. 72 at PAGEID 3079). Specifically, Dr. Hunter has testified as an expert in only two cases—once to

a Labor Board regarding a police officer’s termination and once regarding domestic violence in a marriage

dissolution. (Doc. 65-6 at PAGEID 2876-77). Although he reviewed Wyoming, Ohio’s use of force policy, Dr.

Hunter has never investigated an officer-involved shooting. (Id. at PAGEID 2877, 2879). He has never processed a

homicide scene nor a scene involving an officer-involved shooting. (Id. at PAGEID 2880). Dr. Hunter’s lack of

training or experience in officer-involved shootings, however, is a topic for cross-examination rather than a basis for

disqualifying him as an opinion witness.

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experience investigating police uses of force, he likely possesses sufficient knowledge and

experience to satisfy Rule 702’s requirement.

B. Assistance to the Trier of Fact

One of the core inquiries in determining expert admissibility is whether the expert’s

testimony will help the trier of fact understand the evidence or determine a fact at issue. In re

Scrap Metal Antitrust Litig., 527 F.3d at 529; Fed. R. Evid. 702(a). “Although the Sixth Circuit

has not ruled explicitly in this regard, other courts have held that when cases involve review of

videotaped events, an expert’s opinion should not be permitted when the expert is no better

suited than the jury to interpret the video’s contents.” Estate of Collins v. Wilburn, 253 F. Supp.

3d 989, 992 (E.D. Ky. 2017) (citing Dunlap v. Hood, 2009 WL 362292, at *1 (N.D. Tex. 2009)).

See In re FCA US LLC, MDL No. 2744, 2022 WL 17652686, at *4 (E.D. Mich. Dec. 13, 2022)

(“[C]ourts have limited the testimony to merely explaining the process used to extract and

enhance images, while disallowing any opinion testimony about what the images depict,

especially where jurors are equally able to view the images and assess what is depicted.”); Slack

v. City of San Antonio, No. SA-18-cv-01117, 2021 WL 1390428, at *3-4 (W.D. Tex. Apr. 13,

2021) (excluding forensic video expert from testifying as to what a video depicts because “such

testimony does nothing to assist the jurors, who can make their own determination as to whether

the video is consistent with or contradicts the various parties’ account of the events leading up to

and during the police shooting”); Grover v. BMW of N. Am., LLC, No. 1:19-cv-12, 2022 WL

205249, at *5 (N.D. Ohio Jan. 24, 2022) (favorably quoting Estate of Collins, 253 F. Supp. 3d at

992)). See also United States v. Glenn, 146 F.4th 485, 491 (6th Cir. 2025) (finding that trial

court should have excluded expert testimony from law enforcement Special Agent because “the

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jury was just as competent as Agent Almonte to interpret the common words and phrases used in

these text messages”) (quoting United States v. Freeman, 730 F.3d 590, 597 (6th Cir. 2013) (“A

witness, lay or expert, may not form conclusions for a jury that they are competent to reach on

their own.”)).

In Estate of Collins, the plaintiffs—whose decedent died as a result of alleged police

excessive force—sought to admit the report of expert witness Dr. George Kirkham, a former

police officer6 and Criminology Professor Emeritus at Florida State University. 253 F. Supp. 3d

at 991. Dr. Kirkham’s report concluded that the officers in that case violated established law

enforcement standards and proximately caused the preventable harm the plaintiffs’ decedent

suffered. Id. at 992. He sought to testify that “failure to comply with established procedures led

to the use of force and that the force was unreasonable and excessive.” Id. (comma omitted).

The incident at issue there had been captured on video, and neither party challenged the video

recording’s validity. Id. The court in that case granted defendants’ motion to exclude Dr.

Kirkham’s testimony, finding that:

Rule 702’s “helpfulness” standard requires a valid connection to the pertinent

inquiry as a precondition to admissibility. Likewise, credibility determinations fall

within the province of the jury. In this case, there is little need for Plaintiff’s expert

to tell the jury whether the officers’ actions were objectively reasonable under the

circumstances because a video captures the incident. Dr. Kirkham’s testimony will

not be of any assistance to the jury in determining whether or not excessive force

was used. As such, it does not satisfy the requirements of FRE 702.

Id. (internal citations and quotation marks excluded).

6 Report of George L. Kirkham, Estate of Collins v. Wilburn, 253 F. Supp. 3d 989, 992 (E.D. Ky. 2017) (No. 16-cv-

00068), 2016 WL 9233670.

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In this case, Dr. Hunter’s “analysis” of each officer’s actions consisted solely of his

narration of the video’s contents. (Doc. 65-1 at PAGEID 2823-34). Indeed, Dr. Hunter isolated

thirteen still photos from the video and “explains” what each image “shows.” (Id.).

Following the narration of the video, Dr. Hunter reviewed a recorded statement Officer

Jones provided to investigators and speculates as to what Officer Jones “meant” in his statement

or “believed” as the shooting unfolded. (Doc. 65-1 at PAGEID 2834-35). For example, Dr.

Hunter opined:

At 13:48, OFC Jones stated that while the van was egressing from the rear, he

(Jones) was “in a pretty okay spot.” Meaning that he believed he would not have

been struck by the minivan. At 13:55, OFC Jones states that he saw the minivan

cut the corner. In other words, the minivan turned toward the street, attempting to

flee from officers rather than strike them. This indicates that he believed that the

operator was trying to escape and not cause any harm to him or his partner standing

to the right.

(Id. at PAGEID 2835).

Dr. Hunter is no better suited than the fact finder to watch the videos or observe Officer

Jones’ recorded statement. Indeed, Dr. Hunter’s law enforcement experience and education does

not qualify him to speculate what Officer Jones “believed” at any time during the events leading

up to the shooting or to explain the meaning of Officer Jones’ statement. A juror is just as

competent as Dr. Hunter to interpret common and ordinary English language. See United States

v. Glenn, 146 F.4th at 491. Therefore, Dr. Hunter’s analysis fails to assist the trier of fact. In

addition, any probative value it may have is substantially outweighed by the danger of confusing

the issues, misleading the fact finder, or simply wasting time, and it should be excluded pursuant

to Federal Rule of Evidence 403.

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C. Reliability

“As for reliability, Rule 702 only allows an expert to testify when the opinion is (1)

‘based on sufficient facts or data,’ (2) ‘the product of reliable principles and methods,’ and (3) ‘a

reliable application’ of those ‘principles and methods to the facts of the case.’” Baker, 141 F.4th

at 766 (quoting Fed. R. Evid. 702(b)-(d)). “The task for the district court in deciding whether an

expert’s opinion is reliable is not to determine whether it is correct, but rather to determine

whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation.” In re

Onglyza, 93 F.4th at 346 (quoting In re Scrap Metal Antitrust Litig., 527 F.3d at 529-30).

“District courts evaluating the reliability of expert testimony based on the expert’s personal

knowledge or experience, may forgo the Daubert factors,7 and instead focus on whether the

expert’s testimony ‘explain[s] how that experience leads to the conclusion reached . . . and how

that experience is reliably applied to the facts.” Cook v. Erie Ins. Co., 478 F. Supp. 3d 658, 662

(S.D. Ohio 2020) (quoting Thomas v. City of Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005))

(footnote added). When evaluating non-scientific opinion testimony, trial courts enjoy

considerable leeway in determining reliability. Id. at 666 (citing Tamraz v. Lincoln Elec. Co.,

620 F.3d 665, 671-72 (6th Cir. 2010)).

In this case, plaintiffs have failed to establish that Dr. Hunter’s opinions are either the

product of reliable methods or a reliable application of those methods to the facts of this case.

First, Dr. Hunter’s report lacks a reliable foundation. Dr. Hunter outlined the basis of his report

as follows:

7As to reliability, courts evaluating expert scientific evidence are guided by four inquiries: (1) whether the

technique is testable; (2) whether it has been subjected to peer review; (3) the error rate and whether there are any

standards for lowering it; and (4) whether the technique is generally accepted in the relevant scientific community.

United States v. Gissantaner, 990 F.3d 457, 463 (6th Cir. 2021) (quoting Daubert, 509 U.S. at 593-94, 597 (1993)).

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This case involves the use of deadly force by duly sworn police officers. As such

it is necessary to establish the narrow parameters that the US Constitution, courts,

state law, policies, and procedures dictate law enforcers may use force. The force

police officers may use and will be analyzed includes their mere presence and

verbal commands and escalates up to and including the use of deadly force.

(Doc. 65-1 at PAGEID 2814). Dr. Hunter bases much of his report on legal standards that, even

if accurately summarized, do not apply in this case. Dr. Hunter’s report is based on, at varying

times, “law enforcement takeaways and training” from three United States Supreme Court cases

(Doc. 65-1 at PAGEID 2815-18), sections of the Wyoming, Ohio Police Department policies and

procedures manual (id. at PAGEID 2818-19, 2821-22), a non-binding “National Consensus

Policy and Discussion Paper on the Use of Force” (which Dr. Hunter admits “is at odds with” the

Wyoming police manual) (id. at PAGEID 2819-20, 2822), the mission statement from the

Wyoming Police Department’s website (id. at PAGEID 2820), a paper published by the Police

Executive Research Forum (“PERF”) entitled “Critical Issues in Policing Series: Guiding

Principles on Use of Force” (id. at PAGEID 2821), and a “use of force continuum” recognized

by the National Institute of Justice (id. at PAGEID 2822-23).

Based on these varying sources, Dr. Hunter reached approximately three pages of

“findings,” including: (1) “In connection with the above consensus of the policymakers and

police executives from multiple law enforcement disciplines and organizations, the officers

failed to take the necessary steps to preserve life, as their department mission statement declares”

(Doc. 65-1 at PAGEID 2835); (2) “It is my expert opinion that Officers [sic] Drew Jones and

Officer Jordan Batts used force in excess of best practices and national standards” (id. at

PAGEID 2836); (3) “All three officers could have used more wisdom in de-escalation

techniques” (id.); (4) “Officers should have recognized that Joe Jr’s first instinct was to evade

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capture”; (id. at PAGEID 2837); (5) “It is possible that Joe Jr blew his horn to warn officers to

move out of the way” (id.); (6) Officer Batts “turning around to confront the situation was not the

best decision, nor was it in line with de-escalation philosophy” (id.); (7) Crime scene photos

“indicate that the minivan was already veering toward the asphalt escape route” (id.); and (8)

“The killing of Joe Jr is what the WPD mission statement and PERF’s guides on the use of force

stand against” (id.).

In this case, plaintiffs allege the defendant officers violated Joe Frasure, Jr.’s Fourth

Amendment right to be free from excessive force during arrest. (Doc. 52). Fourth Amendment

claims require a determination of whether the force used was objectively reasonable under the

totality of the circumstances. Barnes v. Felix, 605 U.S. 73, 145 S.Ct. 1353, 1357-58 (2025).

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v.

Connor, 490 U.S. 386, 396 (1989). Fourth Amendment reasonableness does not require “only

the best technique available at the time.” Ashford v. Raby, 951 F.3d 798, 801 (6th Cir. 2020)

(citing Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir. 1996) (The “Fourth Amendment

does not require officers to use the best technique available as long as their method is reasonable

under the circumstances”)).

Dr. Hunter’s application of various legal and other standards in this case undermines the

reliability of his report. For example, Dr. Hunter notes:

Officers Jones and Batts had their weapons drawn before seeing any potential

problem or the need for deadly force. To be sure, it is not an uncommon tactic for

officers to pull their weapons in a possible burglary situation. However, with

hindsight, we know that officers were responding to a suspicious person’s call.

Officers responding with their weapons at the ready seems excessive, especially in

today’s law enforcement climate. . . .

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(Doc. 65-1 at PAGEID 2836 (emphasis added)). Dr. Hunter’s use of “hindsight” in evaluating

the reasonableness of the officers’ actions is contrary to controlling precedent, Graham, 490 U.S.

at 396, and irrelevant to evaluating an officer’s use of force.

Dr. Hunter also repeatedly analyzes the officers’ actions in accordance with “best

practices” and “better” alternative approaches. (Doc. 65-1 at PAGEID 2836: “A better approach

may have been to get to the backyard, slowly round the corner, and assess the situation with their

hand on their holstered weapons.”; Doc. 65-1 at PAGEID 2836: “A better approach may have

been to hold their ground, slowly walk toward the vehicle, or seek cover if they feared the

occupant(s) would suddenly exit the vehicle with weapons.”; Doc. 65-1 at PAGEID 2837: “OFC

Batts could have kept running down the slight hill to safety. . . . His turning around to confront

the situation was not the best decision, nor was it in line with de-escalation philosophy.”; Doc.

65-1 at PAGEID 2837: “Best practice suggestions from professional organizations indicate that

police officers do not fire their weapons into or at moving vehicles unless the operator

deliberately intends to strike the officer or another person.”). But the failure to use “best” or

“better” practices does not establish that a constitutional violation has occurred. “The Fourth

Amendment . . . does not require police officers to take the better approach[,] . . . only that they

take a reasonable approach.” Roell v. Hamilton Cty., Ohio, 870 F.3d 471, 486 (6th Cir. 2017)

(quoting Cook v. Bastin, 590 F. App’x 523, 528 (6th Cir. 2014)). “[E]xpert testimony, which

essentially opines on the best approach that the deputies could have taken in ideal circumstances,

. . . does not establish that the [officers] violated [the suspect’s] clearly established rights.”

Roell, 870 F.3d at 486.

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Dr. Hunter also opines, “All three officers could have used more wisdom in de-escalation

techniques.” (Doc. 65-1 at PAGEID 2836). Officers, however, are not “prohibited from using

any physical force against [a suspect] before first attempting alternative de-escalation

techniques.” Roell, 870 F.3d at 482 (citing Cook, 590 F. App’x at 530).

Dr. Hunter also failed to recognize or address the applicable legal standard for an

officer’s use of deadly force against the driver of a motor vehicle. See Raimey v. City of Niles,

77 F.4th 441, 449 (6th Cir. 2023) (“Deadly force is justified against a driver who objectively

appears ready to drive into an officer or bystander with his car, but generally not once the car

moves away, leaving the officer and bystanders in a position of safety, unless the officer’s prior

interactions with the driver suggest that the driver will continue to endanger others with his car.”)

(internal quotation marks omitted) (quoting Laitit v. Phillips, 878 F.3d 541, 548 (6th Cir. 2017)).

Dr. Hunter’s use of standards that are clearly inapplicable to the questions in this case render his

opinions unreliable. Furthermore, because Dr. Hunter uses standards that do not apply to the

issue of excessive use of force, the report’s probative value is substantially outweighed by a

danger of confusing the issues and should be excluded under Federal Rule of Evidence 403.

As to methodology, “Courts have repeatedly found opinions unreliable when they were

based more on an expert’s ‘subjective belief’ than on an objective method that can be tested.”

Madej, 951 F.3d at 375. Simply put, “[e]xpert reports must include ‘how’ and ‘why’ the expert

reached a particular result, not merely the expert’s conclusory opinions.” R.C. Olmstead, Inc. v.

CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010) (quoting Salgado v. Gen Motors Corp.,

150 F.3d 735, 742 n.6 (7th Cir. 1998)). The opinions must “outline a line of reasoning arising

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from a logical foundation.” Id. (quoting Brainard v. Am. Skandia Life Assur. Corp., 432 F.3d

655, 657 (6th Cir. 2005)).

Dr. Hunter’s report fails to do so. First, his report reveals no discernible methodology.

(Doc. 65-1). He makes no effort to explain how he reached his conclusions. Indeed, when

deposed about his methods, Dr. Hunter testified:

I looked at case law and I looked at best practices and just made a decision as to

whether the actions that I was able to see were in line with that. Did I go out there

and take measurements? If that’s what you mean by scientific, I didn’t take

measurements or anything like that.

(Doc. 65-6 at PAGEID 2869-70). For example, Dr. Hunter concluded: “At no time was

Warmack or Jones in danger of being struck. In my opinion, Batts and all officers could have or

should have moved out of the way and stayed on the side of the vehicle.” (Doc. 65-1 at PAGEID

2837). However, Dr. Hunter provided no explanation for this conclusion. He admittedly took no

measurements and made no mathematical calculations involving the speed at which the vehicle

was travelling, the relative positions of the officers, or whether the officers had the time and

space to evade the moving vehicle.

Second, some of Dr. Hunter’s “findings” are nothing more than obvious speculation. For

example, Dr. Hunter found that “Joe Jr’s first instinct was to evade capture,” “[i]t is possible that

Joe[,] Jr[.] blew his horn to warn officers to move out of the way,” and Joe, Jr. was not

“deliberately intend[ing]” to strike the officers. (Doc. 65-1 at PAGEID 2837). Dr. Hunter

provided no basis for knowing the deceased’s instincts or intentions.

In sum, plaintiffs have failed to establish that Dr. Hunter’s opinions are either the product

of reliable methods or a reliable application of those methods to the facts of this case.

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Accordingly, his report should be excluded from consideration during both summary judgment

and trial.

IV. CONCLUSION

Because plaintiffs failed to comply with Rule 26(a)(2)(B), because Dr. Hunter’s report is

neither helpful to the trier of fact nor the product of reliable methods, and because any probative

value of the report is substantially outweighed by its danger of confusing the issues and

misleading the fact finder, defendants’ Daubert motion and motion in limine regarding plaintiff's

purported expert witness, Lawrence Hunter (Doc. 65), is GRANTED. Dr. Hunter’s report is

excluded from consideration during summary judgment and trial.

Date: 9/17/2025 Hern, Ke Rethov

Karen L. LitkoVitz

United States Magistrate Judge

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