Gomez v. Fachko

Background

The court’s November 8, 2021 order excluded two experts’ proposed evidence. It excluded Alexander Jason’s opinion that Gomez’s car wheels were turned left during the shooting incident because interpreting a video and deposition testimony did not require specialized knowledge. It also excluded an animation prepared by Jason Fries, Gomez’s forensic animation expert, after identifying concerns about Fries’s descriptions of the software he used and his failure to provide the animation file to the defendants.

The court previously ruled that, without the animation, Fries’s proposed testimony consisted only of reviewing video and photographs. Because that review did not require specialized knowledge, the court concluded that Fries could not provide any expert testimony.

Request for reconsideration

Gomez later asked whether Fries could offer an opinion from his rebuttal report, including an opinion that the Honda could not have passed the police vehicle positioned in front of it. The parties did not reach an agreement about which portions of the report, if any, could be admitted. Gomez then identified eight opinions that he asserted did not depend on the excluded animation.

The court treated Gomez’s request and supplemental brief as a motion for reconsideration under Civil Local Rule 7-9. That rule requires a party seeking reconsideration of an interlocutory order to show a material difference in fact or law, newly emerged material facts or a change in law, or a manifest failure to consider material facts or dispositive legal arguments. Gomez relied on the last ground, arguing that the court had failed to consider Fries’s review of the video and photographs and his test drive of a Honda Civic. Although Gomez had not requested the required permission to file a reconsideration motion, the court considered his arguments.

Court’s analysis

The court concluded that Fries’s opinions primarily depended on the excluded animation. Each opinion Gomez sought to introduce either referred to the animation or depended on information generated by it. The court cited Fries’s report, which stated that meaningful analysis could be performed only by tracking the video in three dimensions.

The court also stated that, even if Fries had primarily relied on the video and photographs, that would not change its earlier conclusion. Viewing and interpreting those materials did not require scientific, technical, or other specialized knowledge, so they could not support Fries’s expert testimony.

The court separately rejected reliance on Fries’s Honda Civic test drive. Gomez had not explained why shifting the vehicle, pressing the gas pedal, and stopping required specialized knowledge. The court stated that lay people could perform those actions. It further stated that, even if the actions required specialized knowledge, Fries’s expertise in forensic animation, three-dimensional laser scanning, audio and video analysis, line of sight, laser-based photogrammetry, scientific method, and trajectory analysis did not qualify him to provide specialized knowledge about test driving an automobile.

The court additionally found that two proposed rebuttal opinions—identified as Rebuttal Opinion 1 and Rebuttal Opinion 5—responded to Jason’s already-excluded opinion about the position of Gomez’s car wheels. Because the defendants could not question Jason about that excluded opinion or opinions depending on it, the court deemed Fries’s two rebuttal opinions irrelevant.

Disposition

The court denied Gomez’s motion for reconsideration. It ruled that Fries would not be allowed to present any expert testimony in the case. The order states that it supersedes and vacates an earlier order.