KEITH M. SCHUELLER, Plaintiff,
BRETT CORDREY, individually and in his capacity as a DELAWARE STATE TROOPER, the STATE of DELAWARE, and the DEPARTMENT of PUBLIC SAFETY-DIVISION of STATE POLICE Defendants.
Michael McTaggart, Esq.
ORDER GRANTING, IN PART, AND DENYING, IN PART,
PLAINTIFF'S DAUBERT MOTION TO EXCLUDE THE TESTIMONY OF
DEFENDANTS' EXPERT WITNESS
M. DAVIS, JUDGE.
case arises out of the shooting of Keith Schueller by
Delaware State Police Trooper Brett Cordrey on February 19,
2013. Mr. Schueller sues Trooper Cordrey individually and in
his representative capacity as a Delaware State Trooper. Mr.
Schueller also brings claims against the State of Delaware
and the Department of Public Safety-Division of State Police
(collectively with Trooper Cordrey, the
"Defendants") under a theory of respondeat
superior. Mr. Schueller asserts claims for battery,
negligence, gross negligence, intentional infliction of
emotional distress, and excessive force under Article I,
Section 6 of the Delaware Constitution.
February 3, 2017, the Court held a pretrial conference (the
"February 3 Pretrial Conference") and heard
argument on a number of outstanding motions, including the
Plaintiff's Daubert Motion to Exclude the Testimony of
Defendants' Expert Witness (the "Motion");
Defendants' Response to Exclude the Testimony of
Defendants' Expert Witness (the "Response");
the Supplement to Plaintiff's Daubert Motion to Exclude
the Testimony of Defendants' Expert Witness (the
"Supplement"); and the Memorandum Opinion and
Order, dated October 24, 2016, from the United States
District Court for the District of Maryland (the
"District Court Decision"). At the end of the
February 3 Pretrial Conference, the Court took the Motion
parties provide different versions of the events and
circumstances leading up to and including the shooting of Mr.
Schueller by Trooper Cordrey. There are discrepancies in each
party's story. Both parties agree that Mr. Schueller
landed on his back. This means that Mr. Schueller somehow
turned in midair after he was shot and before hitting the
ground. Mr. Schueller alleges that his back was turned
towards Trooper Cordrey during the entirety of the chase,
which Mr. Schueller contends explains why the bullet entered
his back. When asked about this at his deposition, Mr.
Schueller explained that did a "football move" in
midair. In his version of events, Trooper Cordrey
alleges that Mr. Schueller turned to face him and began
wielding the shovel as a weapon, swinging it over his head in
a violent manner. Both parties also agree that the bullet
entered Mr. Schueller's back. When asked at his
deposition how the bullet entered Mr. Schueller's back
when he was supposedly facing him, Trooper Cordrey stated
that he did not find out until later that the bullet entered
Mr. Schueller's back. Trooper Cordrey maintains that he
believed he shot Mr. Schueller in the stomach.
parties have retained experts to address the discrepancies.
Mr. Schueller provides three expert reports. The first is a
report by Dr. Mark Balash, the second is a report by Dr. Paul
McCauley, and the third is a rebuttal report by Dr. Jeremy
Bauer. The Defendants provide two expert reports. The first
is an expert report of Emmanuel Kapelsohn, a use-of-force and
firearms expert, who states that Mr. Schueller's
"gunshot injury is consistent with him having started to
turn to continue running as Tfc. Cordrey was in the process
of firing the shot."The second is an expert report of Dr.
Geoffrey Desmoulin, a biomechanical engineer, who analyzes
the fall pattern after being shot for a person of Mr.
Schueller's physical dimensions.The Motion only addresses the
Mr. Kapelshohn's report.
Motion takes issue with four opinions contained in Mr.
Kapelsohn's report: (i) findings regarding potential
damage by the shovel and the opinion that the shovel could
kill a man with a blow to the head or cause injury, (ii)
opinion regarding the 21-Foot Rule and the time it would take
for Mr. Schueller to strike Trooper Cordrey, (iii) opinion
regarding the location of the bullet wound, and (iv) opinion
as to how Mr. Schueller could be shot in the back when
originally facing Trooper Cordrey prior to the
shooting. Mr. Schueller argues that these foregoing
opinions are based on mere conjecture, rather than solid
scientific theory, and alleges that Mr. Kapelsohn will
"attempt to disguise his advocacy in a cloak of what
other experts have called pseudoscience, and will attempt to
bolster the testimony of the officer defendant with
scientific-sounding terminology that is based on
agenda-driven research that lacks any characteristics of
valid science." Mr. Schueller also argues that Mr.
Kapelsohn is not qualified to render the
admissibility of expert testimony is governed by Delaware
Rules of Evidence 702 ("Rule 702"). Rule 702
If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training or education may
testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
applying Rule 702, Delaware Courts have adopted the U.S.
Supreme Court's holdings in Daubert v. Merrell Dow
Pharmaceuticals. Daubert requires the trial
judge to act as gatekeeper and determine whether the expert
testimony is relevant and reliable and whether it will assist
the trier of fact. The Delaware Supreme has adopted a
five-part test for trial courts to consider when determining
the admissibility of scientific or technical testimony. The
trial court must decide whether:
(i) the witness is qualified as an expert by knowledge, skill
experience, training or education; (ii) the evidence is
relevant and reliable; (iii) the expert's opinion is
based upon information reasonably relied upon by experts in
the particular field; (iv) the expert testimony will assist
the trier of fact to understand the evidence or to determine
a fact in issue; and (v) the expert testimony will not create
unfair prejudice or confuse or mislead the
Schueller argues that Mr. Kapelsohn is not qualified to
render the opinions in the report because he has no
"formal, accredited education in police work; no
evidence of attendance at or graduation from a police
academy; no evidence of any full-time, or formal employment
with a law enforcement agency; and no training courses
lasting more than one week." While Mr. Kapelsohn may
lack these qualifications, he is nonetheless qualified to
testify as a firearms and use-of-force expert by his
knowledge, skill, experience, and training.
Kapelsohn has served as a sworn reserve deputy sheriff and
special deputy sheriff for two sheriff's departments for
19 years. Mr. Kapelsohn is certified as a firearms instructor
by the FBI and the International Association of Law
Enforcement Firearms Instructors. He is a certified
instructor in the fields of police defensive tactics
instruction, baton instruction, weapon retention instruction,
pepper spray instruction, less lethal impact munitions
instruction, Taser instruction, and psychomotor skill design
instruction. Mr. Kapelsohn is also a certified force science
analyst and a certified shooting scene reconstructionist. For
the past 14 years, Mr. Kapelsohn has served on the Curriculum
Development Committee that wrote the firearms and
use-of-force curriculum used by police academies throughout
Pennsylvania. Mr. Kapelsohn has testified as an expert
witness in state and federal courts at least 60 ...