Asante-Chioke

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MALIKAH ASANTE-CHIOKE CIVIL ACTION

VERSUS NO. 22-4587

NICHOLAS DOWDLE ET AL. SECTION: “J”(3)

ORDER & REASONS

Before the Court is a Motion to Exclude the Testimony of Mark Candies (Rec.

Doc. 204) filed by Plaintiff Malikah Asante-Chioke. Defendants Officers Lamar

Davis and Nicholas Dowdle (LSP Defendants) filed an opposition. (Rec. Doc. 217)

Plaintiff filed a reply. (Rec. Doc. 231). Having considered the motions and

memoranda, the record, and the applicable law, the Court finds that Plaintiff’s motion

should be GRANTED in part and DENIED in part.

LEGAL STANDARD

Federal Rule of Evidence 702 provides that a witness who is qualified as

an expert may testify if: (1) the expert's “specialized knowledge will help the trier of

fact to understand the evidence or to determine a fact in issue”; (2)

the expert's testimony “is based on sufficient facts or data”; (3)

the expert's testimony “is the product of reliable principles and methods”; and (4) the

principles and methods employed by the expert have been reliably applied to the facts

of the case. Fed. R. Evid. 702. The United States Supreme Court's decision in Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provides the analytical

framework for determining whether expert testimony is admissible under Rule 702.

Both scientific and nonscientific expert testimony are subject to

the Daubert framework, which requires trial courts to make a preliminary

assessment of “whether the expert testimony is both reliable and relevant.” Burleson

v. Tex. Dep't of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004); see also Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).

When expert testimony is challenged under Daubert, the party offering

the expert's testimony bears the burden of proving its reliability and relevance by a

preponderance of the evidence. Moore v. Ashland Chem. Co., 151 F.3d 269, 276 (5th

Cir. 1998).

To be reliable, expert testimony must be based on “scientific knowledge,”

meaning it must be “ground[ed] in the methods and procedures of science” and based

on “more than subjective belief or unsupported speculation.” Daubert, 509 U.S. at

589-90. However, this rule does not require the testimony to be based on a scientific

study, but allows testimony based on “personal experience” if, in the trial court's

view, there is a sufficient level of “intellectual rigor” underlying

the testimony. Kumho Tire Co., 526 U.S. at 152. Indeed, “reliance upon extensive

personal experience or specialized knowledge is an acceptable ground for the

admission of expert testimony.” Derouen v. Hercules Liftboat Co., LLC, No. CV 13-

4805, 2015 WL 13528499, at *3 (E.D. La. Sept. 4, 2015).

A number of nonexclusive factors may be relevant to the reliability analysis,

including: (1) whether the technique at issue has been tested; (2) whether the

technique has been subjected to peer review and publication; (3) the potential error

rate; (4) the existence and maintenance of standards controlling the technique's

operation; and (5) whether the technique is generally accepted in the relevant

scientific community. Burleson, 393 F.3d at 584. The reliability inquiry must remain

flexible, however, as “not every Daubert factor will be applicable in every situation;

and a court has discretion to consider other factors it deems relevant.” Guy v. Crown

Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004); see also Runnels v. Tex. Children's

Hosp. Select Plan, 167 F. App'x 377, 381 (5th Cir. 2006) (“[A] trial judge has

considerable leeway in determining how to test an expert's reliability.”).

With respect to the relevancy prong, the proposed expert testimony must be

relevant “not simply in the way all testimony must be relevant [pursuant to Rule

402], but also in the sense that the expert's proposed opinion would assist the trier of

fact to understand or determine a fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320

F.3d 581, 584 (5th Cir. 2003). Ultimately, a court should not allow its “gatekeeper”

role to supersede the traditional adversary system, or the jury's place within that

system. Scordill v. Louisville Ladder Grp., LLC, No. 02-2565, 2003 WL 22427981 at

*3 (E.D. La. Oct. 24, 2003). As the Supreme Court noted, “vigorous 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. Generally, questions relating to the basis and

sources of an expert's opinion rather than its admissibility should be left for the jury's

consideration. United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir.

1996) (citing Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)).

PARTIES’ ARGUMENTS AND DISCUSSION

Plaintiff argues that this Court should exclude Mr. Candies’ opinions because

he: (1) failed to timely disclose certain source materials, (2) makes incorrect factual

assertions, (3) makes impermissible legal conclusions, (4) uses unreliable

methodology, (5) is unqualified, and (6) renders opinions that are highly prejudicial

and of little probative value. (Rec. Doc. 204-1, at 8–20).

I. Disclosure of Source Materials

Plaintiff first seeks to exclude “every portion of Mr. Candies’ testimony which

relies on non-public, undisclosed, or late provided sources.” (Rec. Doc. 204-1, at 9).

These sources include Louisiana P.O.S.T. (Peace Officer Standards and Training)

Master Instructor materials from 2014 and 2016, which Plaintiff claims were not

disclosed, and the Use of Force Toolbox Concept – Instructor Development Training,

which Plaintiff claims was disclosed only after the May 4, 2025 deadline to disclose

expert reports. Id. Plaintiff argues that Federal Rule of Civil Procedure 26(a) required

Mr. Candies to provide these source materials by May 4, 2025, and that since Mr.

Candies failed to timely disclose this information, he cannot present opinions which

rely on this information at trial. Id.

LSP Defendants assert that none of the parties included source materials

relied on by their experts in their expert disclosures, seemingly suggesting that Rule

26(a) does not require an expert to disclose their source materials when they disclose

their report. (Rec. Doc. 217, at 7). Further, LSP Defendants argue that Plaintiff

suffered no prejudice from these failed or untimely disclosures. Id. at 8.

Rule 26(a) requires an expert report contain (i) a complete statement of all

opinions the witness will express and the basis and reasons for them [and] (ii) the

facts or data considered by the witness in forming them.” Fed. R. Civ. P.

26(a)(2)(B)(i)(ii). If a party fails to disclose such information, “the party is not allowed

to use that information . . . to supply evidence . . . at trial, unless the failure was

substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

A. Louisiana P.O.S.T. Master Instructor Materials

LSP Defendants have failed to provide Plaintiff with the Louisiana P.O.S.T.

Master Instructor materials from 2014 and 2016. In his report, Mr. Candies cites

these two sources a total of 11 times. (Rec. Doc. 204-4, at 10, 11, 12, 16, 17, 19, 20, 22,

23, 27). In his amended report, Mr. Candies explains that he did not reference any

written material for these citations. (Rec. Doc. 204-5, at 3). Mr. Candies claims that

these were instructor courses, and he relied on the practicums taught during the

training as his sources for these citations. Id. Mr. Candies explains during his

deposition that there are written materials regarding Louisiana P.O.S.T. training

standards. (Rec. Doc. 217-2, at 90). However, Mr. Candies asserts that he did not rely

on these written materials in formulating his opinions. Id.

The Court finds that Rule 26(a) does not require Mr. Candies to furnish to

Plaintiff either the Louisiana P.O.S.T. Master Instructor Materials or the written

Louisiana P.O.S.T. training standards. While Mr. Candies must disclose the sources

upon which he relies, he does not have to provide documents which do not exist. Mr.

Candies asserts that he relied exclusively on the undocumented practicums to form

his opinions, and he did not rely on any written Louisiana P.O.S.T. materials. (Rec.

Doc. 217-2, at 90). Accordingly, the Court will not exclude Mr. Candies’ testimony for

failure to provide these sources.

B. Use of Force Toolbox Concept – Instructor Development Training

In his amended report, Mr. Candies admits that his original report contains an

erroneous citation. (Rec. Doc. 204-5, at 3). Mr. Candies explains that he incorrectly

cites to Candies & Hass, 2021 when he should have cited to the Use of Force Toolbox

Concept – Instructor Development Training Id. Mr. Candies asserts that he made this

mistake on four occasions throughout his report. (Rec. Doc. 204-4, at 16, 25, 31, 33).

Mr. Candies disclosed the correct source to Plaintiff on May 22, 2025 (Rec. Doc. 204-

5) which was 18 days after the May 4, 2025 deadline provided in the Scheduling Order

but 39 days before Mr. Candies’ June 30, 2025 deposition. (Rec. Doc. 217-2, at 1).

The Court finds that Mr. Candies’ failure to timely disclose this source is

harmless. “To determine whether a violation of Rule 26 is harmless under Rule 37(c),

the [C]ourt considers: (1) the importance of the evidence; (2) the prejudice to the

opposing party of including the evidence; (3) the possibility of curing such prejudice

by granting a continuance; and (4) the explanation for the party’s failure to disclose.”

Hayes v. S. Fid. Ins. Co., 14-cv-376, 2014 WL 5305683, *14 (E.D. La. Oct. 15, 2014)

(Lemmon, J.).

The source omitted by LSP Defendants is important and must be disclosed, but

Plaintiff has “not articulated a specific prejudice that would justify excluding the

expert[s] from testifying at trial.” Id. at *15. After acknowledging his mistake, Mr.

Candies disclosed his corrected source on May 22, 2025 (Rec. Doc. 204-5, at 3).

Plaintiff had 39 days to prepare for Mr. Candies’ June 30, 2025 deposition while

considering Mr. Candies’ corrected source. Accordingly, the omission was harmless,

and the Court will not exclude Mr. Candies for “non-compliance with the technical

terms” of Rule 26(a). Hayes, 2014 WL 5305683, at *15.

II. Factual Assertions

Plaintiff next seeks to exclude information from the “Incident Location” section

of Mr. Candies’ report where he states that the shooting incident occurred in a “very

heavily populated” and “very busy” suburb near a Chick-fil-A restaurant. (Rec. Doc.

204-1, at 10). Plaintiff argues that there are insufficient facts to establish that the

shooting occurred in a very populated and busy area and that it is factually incorrect

to assert that a Chick-fil-A was near the incident because the Chick-fil-A was not

constructed until after the shooting incident occurred. (Rec. Doc. 204-1, at 11).

LSP Defendants argue that evidence in the record supports that the shooting

incident occurred in a populated area. (Rec. Doc. 217-1, at 10). But LSP Defendants

do not contest the non-existence of a nearby Chick-fil-A at the time of the shooting.

(Rec. Doc. 217, at 9).

A. Population

The record reflects that the shooting occurred on Airline Highway and in

Metairie, Louisiana, a suburb of the New Orleans metropolitan area. (Rec. Doc. 1, at

6). In 2021, Metairie had a population of approximately 141,000 people and a

population density of over 6000 people per square mile. Metairie, LA–Population

2025, World Population Review, https://worldpopulationreview.com/us-

cities/louisiana/metairie (last visited December 4, 2025). The Court will not get into

the nuance of whether Metairie qualifies as a “heavily populated” suburb. Still, the

record is replete with facts that the area is sufficiently populated such that the Court

is unwilling to say that Mr. Candies’ characterization is clearly erroneous. (Rec. Doc.

217, at 9 (showing images of the shooting area with multiple vehicles on Airline

Highway and several businesses nearby)). Accordingly, the Court will not exclude Mr.

Candies’ statements concerning the heavy population of Metairie.

B. Chick-fil-A

Still, as LSP Defendants and Mr. Candies concede, there was no Chick-fil-A

restaurant near the shooting at the time it took place. (Rec. Doc. 217, at 9). A quick

Google Earth search confirms this concession. Map showing 3501 Airline Dr.,

Metairie, LA 70001 on Nov. 2, 2021, Google Earth,

https://earth.google.com/web/search/3501+Airline+Dr,+Metairie,+LA+70001 (last

visited Dec. 4, 2025). Accordingly, the Court finds that any reference to a Chick-fil-A

being near the shooting incident must be stricken.

III. Legal Conclusions

Plaintiff next argues that Mr. Candies offers impermissible legal conclusions

that this Court should exclude. (Rec. Doc. 204-1, at 12). Surprisingly, LSP Defendants

do not contest that Mr. Candies offers impermissible legal conclusions in his report.

Instead, they argue that Mr. Candies testimony is permissible because Plaintiff’s

expert Dr. Kirkham does the same thing. (Rec. Doc. 217, at 11–13).

The Court has already thoroughly discussed the issue of impermissible legal

conclusions in its October 2, 2025 Order and Reasons, which held that Dr. Kirkham

may not offer inadmissible legal conclusions (Rec. Doc. 239, at 5–8) and its November

21, 2025 Order and Reasons, which held that EJLD Defendants’ expert Mr. Ryan may

not provide legal standards because that job is reserved for the Court. (Rec. Doc. 248,

at 5 (citing Askanse v. Fatjo, 130 F. 3d 357, 673 (5th Cir. 1997)). Upon review of Mr.

Candies’ report, the Court finds troubling the following opinions:

The evaluation standard to be used in such incidents is that of objective

reasonableness considering the totality of the circumstances, that

existed at the time the force was used, as established by the United

States Supreme Court in the landmark case of Graham v. Connor. This

is done by analyzing the specifics of the event to identify if one of the

four “Graham Factors” exist. The Graham Factors are four distinct

situations designated by the United States Supreme Court, in the

Graham v. Connor decision, each in and of itself establishing probable

cause for an officer to be justified to use force in accordance with the 4th

Amendment. Those four factors are 1) Severity of the Crime, 2)

Immediacy of the Threat, 3) Active Resistance, and 4) Resistance by

Flight or Escape. (Graham v. Connor, 1989) (Rec. Doc. 204-4, at 32).

Based on the facts, materials, analyses, evaluations, and the standard

for evaluating police use of force established by the U.S.

Supreme Court, I have determined that Trooper Dowdle’s

performance and actions in this tragic incident were consistent with

Louisiana P.O.S.T. training standards, Louisiana State Police

Operating and Training Standards, and commonly accepted national

training standards. Id. (emphasis added).

This was the only reasonable response available to Trooper Dowdle.

Id. at 33 (emphasis added).

Mr. Candies clearly articulates the legal standard set forth in Graham v. Conner, 490

U.S. 386 (1989) and in so doing takes on a role reserved exclusively for the Court. He

then invades the province of the jury when he explicitly states that Officer Dowdle’s

use of force complied with those legal standards. He even impermissibly opines on

the reasonableness of Officer Dowdle’s actions. Accordingly, the Court will exclude

these opinions.

IV. Mr. Candies’ “Critical Incident/Use of Force Analysis”

Plaintiff next seeks to exclude Mr. Candies’ entire “Critical Incident/Use of

Force Analysis” in his report by arguing that this section contains impermissible

factual recitations of shooting Defendant Dowdle’s version of events. (Rec. Doc. 204-

1, at 14–15). This analysis includes Mr. Candies’ statement that “Trooper Dowdle’s

top priority at this point is to contain the armed suspect and prevent his access to

potential victims.” (Rec. Doc. 204-4, at 10).

LSP Defendants argue that Plaintiff offers no basis to exclude all of Mr.

Candies’ Critical Incident/Use of Force analysis. (Rec. Doc. 217, at 13) LSP

Defendants contend that Mr. Candies bases his opinions on state and nationally

accepted police training standards and his cited material and not on Defendant

Dowdle’s version of events. Id. at 14. Lastly, LSP Defendants argue that it would be

“inconsistent and prejudicial” for this Court to permit Plaintiff’s expert Dr. Kirkham

to analyze the body cam footage while foreclosing Mr. Candies from doing so. Id.

The Court agrees with LSP Defendants. Plaintiff fails to adequately explain

why this Court should exclude all 24 pages of Mr. Candies’ Critical Incident/Use of

Force Analysis. The Court is unconvinced that Mr. Candies is relying solely on Officer

Dowdle’s version of events to determine whether Officer Dowdle complied with his

training. In his Critical Incident/Use of Force Analysis, Mr. Candies reviews and

articulates his interpretation of the evidence as a police use of force expert and cites

multiple sources to explain why he believes Officer Dowdle complied with his

training. (Rec. Doc. 204-4, at 9–31). When stating Officer Dowdle’s “top priority,” Mr.

Candies testified during his deposition that he relied on the deposition of multiple

officers and the information in the case report. (Rec. Doc. 217-2, at 108–09).

Accordingly, the Court will not exclude Mr. Candies’ use of force analysis.

V. Reliability

Plaintiff next challenges the reliability of Mr. Candies’ report. (Rec. Doc. 204-

1, at 15). Plaintiff argues that Mr. Candies’ report is unreliable because it is not

“grounded in the methods and procedures of science” and is instead based on Mr.

Candies’ experience and education. Id.

This Court rejected a similar challenge to Plaintiff’s expert Dr. Kirkham in its

prior Order and Reasons (Rec. Doc. 239, at 16–17), and the Court will do so here.

Expert testimony does not always need to be based on scientific testing. “Rule 702

does not distinguish between scientific knowledge and technical or other specialized

knowledge but makes clear that any such knowledge might become the subject of

expert testimony.” Kumho Tire v. Carmichael, 526 U.S. 137, 156 (1999). Mr. Candies

may base his opinions on his technical or specialized knowledge regarding applicable

police training and procedures. Accordingly, the Court will not exclude Mr. Candies’

opinions for lack of a reliable methodology.

VI. Qualifications

Plaintiff first argues that this Court should not qualify Mr. Candies as an

expert because “he has never been qualified as an expert in any case.” (Rec. Doc. 204-

1, at 1). However, as LSP Defendants correctly argue, Mr. Candies can qualify as an

expert without prior expert testimony. The Fifth Circuit makes clear that “to qualify

as an expert, the witness must have such knowledge or experience in his field

or calling as to make it appear that his opinion or inference will probably aid the

trier in his search for truth.” United States v. Hicks, 389 F. 3d 514, 524 (5th Cir. 2004)

(citation modified) (emphasis added) (quoting United States v. Bourgeois, 950 F. 2d

980, 987 (5th Cir. 1992)). An expert may be qualified through their experience, but it

is experience in the requisite field of study, not experience testifying, that matters.

Mr. Candies has a “38-year career as a professional law enforcement officer

and instructor.” (Rec. Doc. 204-4, at 3). He has received over 7600 hours of specialized

law enforcement training including, but not limited to “Use of Force, De-escalation,

Defensive Tactics, and Officer survival” and holds instructor certifications in these

areas. Id. He is a “Louisiana Peace Officer Standards and Training” Master

Instructor and has authored courses on Police Use of Force, Response to Deadly Force,

and Active Shooter Response. Id. And, contrary to Plaintiff’s contention, Mr. Candies

has been qualified as an expert witness in police training techniques in this Court. “I

am going to qualify [Mr. Candies] as an expert in police training techniques so that

he can answer the hypothetical.” Jury Trial Excerpt: Transcript of Testimony of Mark

Candies, at 19:10–11, Young v. Smith, No. 03-cv-311, (E.D. La. Mar. 17, 2005) (Rec.

Doc. 110). Accordingly, the Court finds Mr. Candies qualified to opine on applicable

police use of force training, standards, and procedures and whether Officer Dowdle

complied therewith.

Plaintiff next argues that Mr. Candies is unqualified to render any opinions on

Mr. Asante-Chioke’s mental health and mental state and on human

perception/reaction times. (Rec. Doc. 204-1, at 17–18). LSP Defendants do not contest

Mr. Candies’ lack of qualifications in these fields. Instead, they argue that Mr.

Candies should be allowed to render opinions in this area because Plaintiff’s expert

Dr. Kirkham, who is not a mental health expert, made similar opinions in his report.

(Rec. Doc. 217, at 17).

The Court agrees with Plaintiff. An expert must be qualified “by knowledge,

skill, experience, training, or education.” Fed. R. Evid. 702. “A district court should

refuse to allow an expert witness to testify if it finds that the witness is not qualified

to testify in a particular field or on a given subject.” Wilson v. Woods, 163 F. 3d 935,

937 (5th Cir. 1999). In his deposition, Mr. Candies testified that he was neither a

mental health professional nor a human factors expert. (Rec. Doc. 217-2, at 46).

Further, Mr. Candies offers no information in his report to suggest that he is qualified

to opine on the mental health of Mr. Asante-Chioke or on human perception/reaction

time.

The Court has already addressed LSP Defendants’ challenges to Dr. Kirkham

in its prior Order and Reasons. (Rec. Doc. 239). LSP Defendants did not contest Dr.

Kirkham’s qualifications to opine on the mental state of Mr. Asanti-Chioke, and Dr.

Kirkham did not opine on human perception/reaction time. The Court will not allow

Mr. Candies to render opinions on which he is unqualified simply because Dr.

Kirkham rendered similar testimony to which LSP Defendants did not object.

Accordingly, the Court will exclude Mr. Candies’ opinions regarding the mental

health of Mr. Asante-Chioke, as well as his opinions on perception/reaction times.

VII. Prejudice and Probative Value

Plaintiff next seeks to preclude Mr. Candies from comparing Mr. Asante-

Chioke’s actions to the Uvalde School Shooter. (Rec. Doc. 204-1, at 19). Plaintiff

argues that any references to the Uvalde School Shooting should be excluded under

Federal Rule of Evidence 403. LSP Defendants argue that a comparison to the Uvalde

School Shooting is relevant and probative to show what could happen if a responding

officer hesitates to use deadly force. (Rec. Doc. 217, at 18–19.)

The Court agrees with Plaintiff. Evidence should be excluded when “its

probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed.

R. Evid. 403. A comparison between Mr. Asante-Chioke and the Uvalde School

Shooter is grossly and unfairly prejudicial, carries very little probative value, and

risks a verdict based on emotion rather than evidence. Accordingly, the Court will

exclude Mr. Candies’ references to the Uvalde School Shooting.

CONCLUSION

Considering the foregoing Motion to Exclude the Testimony of Mark Candies

(Rec. Doc. 204) filed by Plaintiff Malikah Asante-Chioke,

IT IS HEREBY ORDERED that the motion is GRANTED in part and

DENIED in part as follows. Mr. Candies is allowed to testify as a use of force expert

in this case, and he may opine on whether Officer Dowdle complied with his training.

However, Mr. Candies will not be able to opine that the shooting took place near a

Chick-fil-A. He also may not state the law under Graham v. Conner or opine on

whether Officer Dowdle’s actions complied therewith. Mr. Candies cannot opine on

the mental state or mental health of Mr. Asante-Chioke or human perception/reaction

times. Lastly, Mr. Candies may not reference the Uvalde School Shooting.

New Orleans, Louisiana, this 12th day of December, 2025.

CARL J. BA R

UNITED ST S DISTRICT JUDGE

15