“[A] trial judge has considerable leeway in determining how to test an expert's reliability.”
How later courts described this case
- “[A] trial judge has considerable leeway in determining how to test an expert's reliability.”
Written by the judges who cited it.
The opinion
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 in Limine to Exclude (1) All References to A
“Business District” in the Vicinity of the Fatal Shooting of Mr. Asante-Chioke and any
Hyperbolic, Prejudicial Characterizations of Hypothetical Outcomes, and (2) All Post-
Shooting Evidence of Alleged Suicidal Ideations (Rec. Doc. 203) filed by Plaintiff
Malikah Asante-Chioke. Defendants filed oppositions to the motion. (Rec. Doc. 214;
Rec. Doc. 219). Plaintiff filed a reply. (Rec. Doc. 233). Having considered the motion
and memoranda, the record, and the applicable law, the Court finds that Plaintiff’s
motion should be GRANTED.
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 the Court should exclude “(1) all references to a ‘business
district’ or any ‘businesses’ in the vicinity of the shooting, including any hypotheses
about possible outcomes had the shooting Defendants not fatally shot Mr. Asante-
Chioke, including but not limited to hypothetical comparison to the mass-shooting in
Uvalde, Texas; and (2) any evidence or testimony regarding Mr. Asante-Chioke’s
alleged suicidal ideations discovered after the fatal shooting.” (Rec. Doc. 203-1, at 1).
Plaintiff argues that such evidence should be excluded because it is irrelevant to this
Court’s qualified immunity determination. Id. at 2, 7.
Defendants argue that such evidence is relevant. (Rec. Doc. 214, at 3; Rec. Doc.
219, at 3). Defendants note that Courts must look at the “totality of the
circumstances” when determining whether an officer is entitled to qualified
immunity. (Rec. Doc. 214, at 3; Rec. Doc. 219, at 2).
The Court agrees with Plaintiff. While the Court is required to consider the
totality of the circumstances in a qualified immunity analysis, certain facts may still
be irrelevant. Barnes v. Felix, 145 S.Ct. 1353, at 1359 (2025). (explaining that in the
qualified immunity totality of the circumstances analysis, some facts “may not be
relevant at all.”) As the Fifth Circuit clearly explained, the limited issue before the
Court at this time is whether the shooting officers’ actions to continue firing upon Mr.
Asante-Chioke were reasonable. “Here, the defense of qualified immunity turns on
whether Dowdle continued using deadly force by firing shots at Asante-Chioke after
he became incapacitated.” Asante-Chioke v. Dowdle et al., 103 F.4th 1126, 1131 (5th
Cir. 2024). Neither references to a business district or businesses in the vicinity of
the shooting, nor hypothetical alternatives had the shooting officers not fatally shot
Mr. Asante-Chioke, nor the mental state of Mr. Asante-Chioke, is relevant to
determine whether each officer continued to fire upon Mr. Asante-Chioke after he
became incapacitated. Therefore, the Court will exclude such evidence.
CONCLUSION
Considering the foregoing Motion in Limine to Exclude (1) All References to A
“Business District” in the Vicinity of the Fatal Shooting of Mr. Asante-Chioke and any
Hyperbolic, Prejudicial Characterizations of Hypothetical Outcomes, and (2) All Post-
Shooting Evidence of Alleged Suicidal Ideations (Rec. Doc. 208) filed by Plaintiff
Malikah Asante-Chioke.
IT IS HEREBY ORDERED that the motion is GRANTED.
New Orleans, Louisiana, this 8th day of January, 2026.
LK Saha
KV
CARL J. BA bod R
UNITED STATES DISTRICT JUDGE