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Nastazja Friis Rasmussen, and Ivan Kimbrough, and Carmen v. the City of New York

February 23, 2011

NASTAZJA FRIIS RASMUSSEN, AND IVAN KIMBROUGH, AND CARMEN KIMBROUGH, PLAINTIFFS,
v.
THE CITY OF NEW YORK, POLICE OFFICER CHRISTOPHER CARRERO, DETECTIVE JOHN R. NIXON, SERGEANT JOHN VANORDEN, POLICE OFFICER JAMES MAHONY, SERGEANT ROGER PEREZ, POLICE OFFICERS JOHN DOE, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Cogan, District Judge.

MEMORANDUM DECISION AND ORDER

Before the Court is defendants' motion in limine to exclude plaintiff's forensic expert from testifying. For the reasons stated below, the defendants' motion is granted in part and denied in part.

BACKGROUND

This case is scheduled for trial on March 28, 2011. The Court held a pretrial conference on February 11, 2011. In advance of that conference, the parties submitted motions in limine. The Court ruled on most of the parties' motions at the conference; however, it did not rule on defendants' motion to exclude plaintiff's forensic expert, Michael Sinke, from testifying. Rather, the Court set a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).

In advance of that hearing, the parties submitted a joint letter. In the letter, plaintiff noted that he provided defendants with an affidavit from Mr. Sinke in which Mr. Sinke outlined his qualifications and explained his conclusions. Defendants, after reviewing the affidavit, informed plaintiff, who subsequently informed the Court, that they withdrew their request for a Daubert hearing. Defendants instead limited their objection to Mr. Sinke's qualifications and decided to rest on their moving papers filed in support of their motion in limine and on Mr. Sinke's affidavit, which was filed with the joint letter.

DISCUSSION

There are certain requirements a witness must satisfy before he can be allowed to offer expert testimony. First, the "witness [must be] qualified as an expert by knowledge, skill, experience, training, or education." Fed. R. Evid. 702. Second, the expert's testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue." Id. This requirement "goes primarily to relevance." Daubert, 509 U.S. at 591, 113 S. Ct. 2786; see also Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (stating that an expert witness's testimony must be relevant, i.e., it must have a "tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence"). Finally, the expert's testimony must have "a sufficiently 'reliable foundation' to permit it to be considered." Amorgianos, 303 F.3d at 265 (quoting Daubert, 509 U.S. at 597, 113 S. Ct. 2786).

Initially, defendants challenged Mr. Sinke's testimony on the grounds that (1) Mr. Sinke is unqualified to testify as an expert regarding bullet trajectories; (2) Mr. Sinke is unqualified to testify as an expert regarding blood spatter analysis; (3) Mr. Sinke is unqualified to testify regarding the cause of plaintiff's injury; (4) Mr. Sinke's blood spatter analysis testimony will not assist the trier of fact; and (5) Mr. Sinke's blood spatter analysis will be unduly prejudicial and a waste of time. In the joint letter, however, plaintiff informed the Court that "defendants solely seek a determination on Mr. Sinke's qualifications." Accordingly, the Court will restrict its discussion to that issue.

I.Mr. Sinke's Qualifications to Testify as an Expert Regarding Blood Spatter Analysis

After reviewing Mr. Sinke's affidavit and portions of his deposition testimony, it is undeniable that he is qualified to testify as an expert in blood spatter analysis. In 1976, Mr. Sinke was accepted into the Forensic Science Division of the Michigan State Police and successfully completed a three-year training program under the guidance of court-qualified forensic specialists. As part of this program, Mr. Sinke averred that he "received extensive training in crime scene investigation, which encompassed the recognition, collection and preservation of all forensic evidence." During this three-year training period, Mr. Sinke also received training related to blood spatter analysis.

Mr. Sinke was employed by the Michigan State Police for 25 years. During this time, he was involved in processing over 200 major crime scenes, many of which involved blood spatter analysis. Upon retiring from the Michigan State Police in 1997, Mr. Sinke entered private practice as a Latent Print Specialist and Crime Scene Reconstruction Expert at Speckin Forensic Laboratories. After his retirement, he attended a five day training seminar that dealt with the examination and analysis of blood spatter. Since 1997, Mr. Sinke has testified as a blood spatter expert at least 5 times. He has also been invited to give presentations on forensic analysis and the examination of crime scene evidence, including blood evidence, by the Criminal Defense Association of Michigan and the Ohio Association of Criminal Defense Lawyers. Mr. Sinke has also been an invited speaker at the Michigan State University Law Department.

Mr. Sinke has been appointed by judges and retained by law firms to review crime scene evidence, including blood spatter. He has also been retained by law enforcement agencies to examine shooting cases. Finally, Mr. Sinke is a member of several professional organizations, including the American Academy of Forensic Sciences, the International Association for Identification, and the Michigan Ontario Identification Association.

In challenging Mr. Sinke's qualifications to offer expert blood spatter analysis, defendants seek to portray Mr. Sinke's formal training as to minimal to warrant qualification. They also rely on the following factors: (1) he has never been certified as a forensic expert in blood spatter analysis, or any other forensic specialty; (2) he is not licensed as an expert; and (3) he has never published any literature on blood spatter analysis. The Court finds these arguments unavailing in light of the information discussed above.

First, there is no requirement that Mr. Sinke's expert testimony be based solely, or even partially, on formal training. See Fed. R. Evid. 702. The fact that Mr. Sinke's formal training in blood spatter analysis is by no means extensive does not, therefore, necessarily compel a finding that Mr. Sinke is unqualified to offer expert testimony on the subject. Defendants' other arguments are rejected for the same reason. There is simply no requirement that a witness be certified, licensed, or published before he can offer expert testimony on a subject. While these factors may, in certain cases, be relevant to a court's finding of qualification, their absence here does not discount Mr. Sinke's extensive practical experience in crime scene investigation generally and blood spatter analysis specifically. See United States v. Locascio, 6 F.3d 924, 937 (2d Cir. 1993). Accordingly, the Court rules that Mr. Sinke is ...


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