Asante-Chioke v. Dowdle

[[COURTLISTENER_SUBOPINION {"id":"11154613","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
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 are two motions: the first, a Motion to Exclude the Testimony 
and Opinions of Dr. George Kirkham (Rec. Doc. 195) filed by Defendants Col. Lamar 
A. Davis and Nicholas Dowdle (“LSP Defendants”); the second, a Motion to Exclude 
Plaintiff’s Expert Dr. George Kirkham (Rec. Doc. 196) filed by Defendants Officers 
Johnathan Downing, Gerard Duplessis, and Terry Durnin (“EJLD Defendants”). 
(Rec. Doc. 196). Plaintiff filed an opposition to both motions. (Rec. Doc. 221). LSP 
Defendants  filed  a  reply.  (Rec.  Doc.  229).  Having  considered  the  motions  and 
memoranda, the record, and the applicable law, the Court finds that LSP Defendants’ 
motion is GRANTED in part and DENIED in part, and that EJLD Defendants’   
motion is DENIED.                                                         
                      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                           
   LSP and EJLD Defendants (hereinafter collectively “Defendants”) make four 
main arguments as to why this Court should exclude Dr. Kirkham along with his 
testimony and opinions. (Rec. Doc. 195-2; Rec. Doc. 196-1).               

   (1) Dr. Kirkham opines on the ultimate legal issue in the instant case, but Fifth 
     Circuit law prevents him from doing so. (Rec. Doc. 195-2, at 3; Rec. Doc. 
     196-1, at 11).                                                     
   (2) Expert testimony would not significantly assist the trier of fact because the 
     entire incident was captured on video. (Rec. Doc. 195-2, at 3; Rec. Doc. 196-
     1, at 10-11).                                                      
   (3) Dr.  Kirkham’s  testimony  is  unreliable,  irrelevant,  prejudicial,  and 

     potentially confusing to the jury. (Rec. Doc. 195-2, at 3; Rec. Doc. 196-1, at 
     11-12).                                                            
   (4) Dr. Kirkham is unqualified to submit expert testimony in the instant case, 
     and his methodology is unreliable. (Rec. Doc. 195-2, at 3; Rec. Doc. 196-1, 
     at 9-12).                                                          
   I.   Inadmissible Legal Conclusions                                  
   Defendants argue that Dr. Kirkham’s opinion that the shooting officers’ actions 
and a portion of the use of force were unreasonable is impermissible testimony which 

bears on the ultimate legal issue in this case. (Rec. Doc. 195-2, at 3; Rec. Doc. 196-1, 
at 11). Defendants note that under U.S. Fifth Circuit law, experts cannot render 
conclusions of law or provide opinions on legal issues. (Rec. Doc. 195-2, at 5; Rec. Doc. 
196-1, at 11 (citing Renfroe v. Parker,
974 F. 3d 594
, 598 (5th Cir. 2020))). According 
to LSP Defendants, the ultimate legal issue here is whether the shooting officers’ 
actions were reasonable, thus entitling them to qualified immunity. (Rec. Doc. 195-2, 

at 5-6). LSP Defendants argue that Dr. Kirkham provided his opinion on this ultimate 
legal issue by concluding in his report that the shooting officers committed “serious 
violations  of  well-established  standards  and  procedures  of  the  law  enforcement 
profession,” including his belief that the shooting officers continued firing at Mr. 
Asante-Chioke after he was incapacitated and was no longer an imminent threat to 
them. (Rec. Doc. 195-2, at 5-6 (quoting Rec. Doc. 195-3, at 18)). EJLD Defendants also 
note that in his report, Dr. Kirkham opines that the shooting officers’ actions “during 

the shooting itself . . . were not the actions of an objectively reasonable officer.” (Rec. 
Doc. 196-1, at 3 (quoting 196-3, at 16)).                                 
   Plaintiff argues that Dr. Kirkham’s language in his report is allowed under 
Fifth Circuit law. (Rec. Doc. 221, at 5-6). She cites Joseph v. Doe, which held that a 
use of force expert may testify regarding “police policies and procedures as well as 
whether  or  not  specific  acts  by  a  defendant  comported  with  those  policies  or 
procedures,” so long as the testimony is not a “forbidden opinion on the ultimate legal 
issue in the case.” Joseph v. Doe,
2021 WL 2313475
, at *4 (E.D. La. June 7, 2021) 
(internal quotations omitted). Id. at 6.  Plaintiff contends that Dr. Kirkham does not 

offer any opinions on the ultimate issue of reasonableness. Id. at 6.  According to 
Plaintiff, Dr. Kirkham’s report only explains the applicable police practices and 
training standards and assesses whether the shooting officers complied with those 
standards. Id. Thus, Plaintiff argues that Dr. Kirkham’s opinions and report are 
admissible. Id.                                                           
   Dr.  Kirkham  offers  inadmissible  opinions  in  his  expert  report.  The  Fifth 

Circuit  law  is  clear  that  experts  may  not  opine  on  whether  an  officer  used 
unreasonable force. “It is … error to allow expert testimony on whether an officer 
used unreasonable force.” Renfroe v. Parker,
974 F. 3d 594
, 598 (5th Cir. 2020). 
Reasonableness is an inadmissible legal conclusion.
Id.
In his report, Dr. Kirkham 
opines that the shooting officers’ actions “during the shooting itself . . . were not the 
actions of an objectively reasonable officer.” (Rec. Doc. 195-3, at 16). Dr. Kirkham 
clearly opines as to the reasonableness of shooting officers’ actions in his report. This 

portion of his testimony is inadmissible.                                 
   In his report Dr. Kirkham also opines that the shooting officers “continued 
firing excessive shots beyond the point that Mr. Asante-Chioke became incapacitated” 
and “no longer posed any threat.” (Rec. Doc. 195-3, at 18,19). Such an opinion is also 
an inadmissible conclusion on the ultimate legal issue. “To overcome an officers’ claim 
of qualified immunity on [plaintiff’s] claim of excessive force, [plaintiff] must show 
‘(1) an injury, (2) which resulted directly and only from a use of force that was clearly 
excessive, and (3) the excessiveness of which was clearly unreasonable.’” Poole v. City 
of Shreveport,
691 F.3d 624, at 628
(5th Cir. 2012) (quoting Ontiveros v. City of 

Rosenberg,
564 F.3d 379, 382
(5th Cir. 2009)); see also (Rec. Doc. 176, at 2 (citing Roque 
v. Harvel,
993 F. 3d 325, 336-39
(5th Cir. 2021) (explaining that an officer continuing 
to  shoot  at  an  incapacitated  individual  is  a  clearly  established  constitutional 
violation))). Here the force at issue is the officers’ continuous shooting of Mr. Asante-
Chioke. By opining that the shooting was excessive, Dr. Kirkham opined on the 
excessiveness of the shooting officers’ use of force. Further, by opining that the 

shooting officers continued firing on Mr. Asante-Chioke after he was incapacitated, 
Dr. Kirkham opined that the shooting officers violated the constitution. Accordingly, 
Dr. Kirkham’s opinions concerning the shooting’s excessiveness and whether the 
shooting  officers  continued  firing  on  Mr.  Asante-Chioke  after  he  became 
incapacitated are inadmissible.                                           
   However, Dr. Kirkham also offers admissible testimony in his report. Plaintiffs 
are correct that experts may opine on whether officers complied with applicable police 

policies and procedures. Gibbs v. Lopinto, No. 21-1091,
2023 WL 3224581
, at *3 (E.D. 
La. May 3, 2023) “Expert testimony regarding [police] policies and procedures, and 
[officers’] compliance with those policies and procedures, is admissible.”
Id.
(citing 
United States v. Warren, No. 10-154,
2010 WL 11623588
at *4 (E.D. La. Nov. 8, 2010)). 
In addition to his opining on the ultimate legal issue, Dr. Kirkham explains national 
and local police standards on use of force and then assesses whether the shooting 
officers complied with those standards when shooting Mr. Asante-Chioke. (Rec. Doc. 
195-3, at 8-9,17-19). Dr. Kirkham’s testimony, insofar as it explains police policies 
and  procedures  and  assesses  whether  the  shooting  officers  complied  with  those 

procedures, is admissible.                                                
   II.  Expert Testimony in Light of Bodycam Footage                    
   LSP Defendants also argue that Dr. Kirkham should not be able to opine on 
whether the officers’ actions were objectively reasonable because officer bodycam 
footage “captures the entire shooting incident.” (Rec. Doc. 195-2, at 8).  According to 
LSP Defendants, Dr. Kirkham’s opinions would not help the factfinder analyze the 

video evidence.
Id.
LSP Defendants cite three cases that excluded expert testimony 
when there was bodycam footage of the incident.
Id.
(citing Dunlap v. Hood, No. 3-
07-CV-2141-BD,
2009 WL 362292
, at *1 (N.D. Tex. Feb. 13, 2009); Slack v. City of 
San Antonio, Texas, No. SA-18-CV-01117-JKP,
2021 WL 1390428
, at *4 (W.D. Tex. 
Apr. 13, 2021); Lee v. Anderson,
616 F. 3d 803, 809
(8th Cir. 2010)). EJLD Defendants 
also  appear  to  make  this  argument.  Additionally,  they  cite  a  case  where  Dr. 
Kirkham’s opinion was excluded because video captured the relevant incident. (Rec. 

Doc. 196-1, at 10-11) (citing Estate of Collins. v. Willburn,
253 F. Supp. 3d 989
(E.D. 
Ky. 2017)).                                                               
   Plaintiff  contends  that  Dr.  Kirkham’s  testimony  will  help  the  factfinder 
determine whether the shooting officers are entitled to qualified immunity. (Rec. Doc. 
221, at 3). Plaintiff cites several cases where this Court found expert testimony on 
police policies and procedures, and the defendant officers’ compliance with those 
policies and procedures, to be admissible.
Id.
at 3-4 (citing Cortez v. Custard, No. 20-
3110,
2024 WL 2941166
, at *4 (E.D. La. June 11, 2024); Gibbs v. Lopinto, No. 21-
1091,
2023 WL 3224581
, at *3-4 (E.D. La. May 3, 2023); Joseph v. Doe, No. 17-5051,
2021 WL 2313475
, at *4-5 (E.D. La. June 7, 2021)). Still, Plaintiff does not appear to 
proffer these cases to directly contest Defendants’ argument that video evidence of 
the incident in dispute renders Dr. Kirkham’s opinions unhelpful to the factfinder.  
   This Court has already found that any of Dr. Kirkham’s opinions concerning 
the reasonableness of the shooting are inadmissible. Still, Defendants do not explain 
why a video recording of the relevant incident in the instant case will render all of 

Dr. Kirkham’s opinions unhelpful. Defendants also fail to explain how each of their 
cited cases are factually analogous such that they should compel this Court to reach 
the same result in the instant case. The disputed facts here concern whether the 
shooting officers “continued using deadly force by firing shots at Asante-Chioke after 
he became incapacitated” when there were “multiple alleged shooters from at least 
two different law enforcement agencies” and “thirty-six rounds fired upon Mr. Asanti 
Chioke.” Asante-Chioke v. Dowdle,
103 F.4th 1126, 1131
(5th Cir. 2024). Here Dr. 

Kirkham’s potential testimony on police policies and standards, and whether the 
shooting  officers  complied  with  those  standards,  may  assist  the  factfinder  in 
determining  whether  each  of  these  shooting  officers’  actions  were  objectively 
reasonable under the circumstances. Consequently, this Court will not exclude Dr. 
Kirkham as an expert solely because video captured the entire incident.   
   III.  Relevance  of  the  Shooting  Officers’  Compliance  with  Their 
        Training                                                        

   EJLD Defendants also argue that Dr. Kirkham’s opinion as to whether officers 
Downing and Duplessis complied with their training is irrelevant and inadmissible 
because  the  officers  could  still  be  entitled  to  qualified  immunity,  regardless  of 
whether their actions were contrary to their training. (Rec. Doc. 196-1, at 9). In 
support of this argument, ELJD Defendants cite the United States Supreme Court’s 
opinion in City & Cty. of San Franciso, Calif. v. Sheehan,
575 U.S. 600
(2015), where 
the Court found that a plaintiff could not “avoid summary judgment by simply 
producing  an  expert’s  report  that  an  officer’s  conduct  leading  up  to  a  deadly 
confrontation was imprudent, inappropriate, or even reckless” if “a reasonable officer 
could have believed his conduct was justified.”
Id.
(quoting Sheehan,
575 U.S. 600, at 
617
).                                                                     

   Plaintiffs contend that EJLD Defendants erroneously rely on Sheehan for two 
reasons. (Rec. Doc. 221, at 5). First, the finding in Sheehan was about the weight of 
an expert’s opinion, not its admissibility.
Id.
Second, Dr. Kirkham’s testimony about 
police standards and practices, and the shooting officers’ compliance therewith, is 
distinguishable from the expert testimony in Sheehan.
Id.
Plaintiff’s arguments have merit. Sheehan does not prevent this Court from 
considering whether the shooting officers complied with their training. Sheehan did 

not hold that experts may not opine on police policies and procedures and whether an 
officer complied with those procedures. City & Cty. of San Franciso, Calif. v. Sheehan,
575  U.S.  600,  616-17
(2015).  Further,  at  least  one  court  has  found  that  EJLD 
Defendants’ quoted  portion of the Sheehan opinion was about the weight of an 
expert’s opinion, not its admissibility. Diamond v. City of Sandy, No. 22-346,
2025 
WL  448003
,  at  *7  n.9  (when  discussing  Sheehan,  the  court  noted  that  EJLD 

Defendants’ quoted portion “discusses the weight of an expert opinion in the qualified 
immunity analysis, not the admissibility of that evidence.”) Consequently, the Court 
finds that Dr. Kirkham’s opinions on whether the shooting officers complied with 
their training will be relevant to the issues in this case.               
   IV.  Relevance of Impressions of Events Leading up to the Shooting   
   LSP  Defendants  also  seek  to  exclude  other  commentary  by  Dr.  Kirkham 

describing his impressions of the body cam footage which captures the events leading 
up to the shooting. (Rec. Doc. 195-2, at 9). For example, LSP Defendants seek to 
exclude Dr. Kirkham’s deposition statements where he describes the scene as follows: 
“people are screaming, cursing, shouting, ‘Drop the gun!’” “Don’t yell, don’t scream, 
don’t threaten. And these things were not followed. Cursing at someone;” “[they] 
escalated it into an exigent situation by— by rushing in and cursing and shouting at 
the guy.” “All there is is excitement and threats and curses and moving out in the 

open. This is a totally chaotic kind of Keystone cops situation.”
Id.
(quoting Rec. Doc. 
195-5, at 123, 134, 206-07). LSP Defendants also note that “Dr. Kirkham describes 
Chioke’s actions of brandishing a gun and a knife, evading police, running/jogging in 
the middle of the street, and not following any lawful commands as ‘Asante’s just 
walking down the – down the causeway there.’”
Id.
(quoting Rec. Doc. 195-5, at 200). 
LSP Defendants argue that such statements are unnecessary, irrelevant, inaccurate, 
and do not assist the factfinder. Id. at 10.                              
   Plaintiff  does  not  address  LSP  Defendants’  claims  that  Dr.  Kirkham’s 

impressions are irrelevant, unnecessary, and unhelpful to the fact finder. However, 
she does contend that Dr. Kirkham’s testimony is accurate. (Rec. Doc. 221, at 7). 
Plaintiff  also  asserts  that  any  inaccuracies  should  be  “properly  addressed  by 
examining Dr. Kirkham’s testimony at trial.” Id.                          
   LSP Defendants’ arguments as to the irrelevance and non-necessity of Dr. 
Kirkham’s  impressions  have  merit.  The ultimate  issue  here  is  not  whether  the 

shooting officers acted unreasonably by opening fire upon Mr. Asante-Chioke, but 
rather whether they acted unreasonably by continuing to fire after he allegedly 
became incapacitated. The events leading up to the shooting are irrelevant to this 
issue.  Accordingly,  this  Court  will  not  allow  Dr.  Kirkham  to  testify  as  to  his 
impressions of the events leading up to the shooting.                     
   V.   Relevance of Available Alternatives                             
   LSP Defendants also seek to exclude Dr. Kirkham’s testimony and report 

language that discusses alternatives for how the officers should have handled their 
encounter  with  Mr.  Asante-Chioke.  (Rec.  Doc.  195-2,  at  11).  For  example,  LSP 
Defendants note that Dr. Kirkham suggests that the officers “should have sought and 
stayed behind cover, called for a supervisor to come to the scene, called a K-9 Unit, 
called for less lethal weapons, and called for a helicopter.” Id. (citing Rec. Doc. 195-3, 
at 20). Additionally, LSP Defendants note that Dr. Kirkham opines that the officers 
did not ‘“comport with best practices’ on interacting with emotionally disturbed 
persons,  de-escalation,  and  taking  cover.”’  Id.  LSP  Defendants  argue  that  such 
discussion is “not relevant to the ultimate issue, which is whether Mr. Chioke’s 

constitutional right to be free from excessive force was violated or whether the 
defendants are entitled to qualified immunity regarding the incident.” Id.  
   Plaintiff offers no opposition to the LSP Defendants on this point.  
   This Court finds that LSP Defendants’ argument has merit. Dr. Kirkham’s 
opinions and discussions as to the shooting officers’ handling of the events leading up 
to the shooting are irrelevant to the issue of whether the officers acted unreasonably 

by continuing to fire upon Mr. Asante-Chioke. Accordingly, this Court excludes such 
opinions, testimony, and report information in which Dr. Kirkham describes events 
leading up to the shooting and any alternative practices available to the officers 
concerning these events.                                                  
   VI.  Dr. Kirkham’s Expert Qualifications                             
   Defendants also attack Dr. Kirkham’s expert qualifications. (Rec. Doc. 195-2, 
at 13; Rec. Doc. 196-1, at 9). Defendants argue that Dr. Kirkham is unqualified 

because he has not recently (1) lectured in any capacity as a professor of criminology 
or criminal justice (2) written a paper on police use of force or (3) worked as a police 
officer for over 32 years, and when he did, “he only worked one shift per week.” Id. 
Further,  LSP  Defendants  note  that  Dr.  Kirkham  has  not  “demonstrated  any 
continued education, training, or involvement regarding police use of force apart from 
providing expert testimony.” Id. at 14.                                   
   Defendants mention that district courts have excluded Dr. Kirkham from 
testifying in prior cases, similar to the case here, due to his lack of credentials. Rec. 
Doc. 195-2, at 14; Rec. Doc. 196-2, at 10). Defendants cite one case where the court 

excluded Dr. Kirkham’s testimony on use of force during a DWI stop. Pharr v. Wille, 
No. 14-CV-762,
2016 WL 4082740
, at *8 (W.D. Tex. July 29, 2016). There, the court 
found that Dr. Kirkham lacked sufficient academic achievement to qualify as an 
expert witness on “use of force during a traffic stop.” Id. at *6. Specifically, the court 
referenced his lack of training on handling DWI suspects and his small fraction of 
published material on excessive force in the DWI context. Id.             

   Plaintiff argues that lack of recent experience, publications, or education in the 
relevant subject matter should not disqualify Dr. Kirkham. (Rec. Doc. 221, at 10). 
Plaintiff notes that Defendants offer no cases which require a police use of force 
expert to have recent experience, publications, or education in the relevant field.  Id. 
Plaintiff also argues that experience is not the only way an expert can be qualified. 
Plaintiff contends that an expert can also be qualified through knowledge, education, 
training, or skill. Id.                                                   

   Plaintiff also argues that Pharr is an outlier and distinguishable from the 
instant case. Id. Plaintiff asserts that Dr. Kirkham has more published material and 
experience on the relevant subject matter here than he does with DWI stops. Id. 
Plaintiff notes that Dr. Kirkham has several relevant publications to the matter here, 
such as Negligent Use of Police Firearms, Police Use of Deadly Force, and The Police 
Officer in the Community. Id. Plaintiff argues that these publications, in tandem with 
Dr. Kirkham’s experiences as a police use of force expert, qualify him as an expert on 
use of force. Id. at 9-10.                                                
   This Court agrees with Plaintiff’s argument. A witness may qualify as an 

expert through their “knowledge, skill, experience, training, or education.” Fed. R. 
Evid. 702. (emphasis added). “Rule 702 expressly recognizes five bases for qualifying 
an expert: ‘knowledge, skill, experience, training, or education.’ It is clear that a 
background in just one of these five may be sufficient. For example, a witness with 
an academic background in a given area but no practical experience may still qualify 
as an expert.” Anderson v. Allstate Ins. Co.,
2021 WL 292440
, at *10 (M.D. La. Jan. 

28, 2021) (quoting 29 Victor J. Gold, Federal Practice & Procedure § 6264.1 (2d ed. 
2020)). Further, Defendants fail to offer any cases which hold that a use of force 
expert must have recent knowledge, skill, experience, training, or education in the 
relevant subject matter.                                                  
   This  Court  also  finds  that  the  relevant  subject  matter  in  this  case  is 
distinguishable from that in Pharr and more in line with Dr. Kirkham’s qualifications 
and experience. Dr. Kirkham’s publications on Negligent Use of Police Firearms and 

Police Use of Deadly Force qualify him to testify as an expert on deadly force and 
officers’ use of firearms. The shooting officers here used deadly force with firearms 
while shooting Mr. Asante-Chioke. So, the relevant subject matter concerns police 
use of deadly force with firearms. Accordingly, Dr. Kirkham is qualified to discuss the 
relevant subject matter of the instant case.                              
   VII.  Dr. Kirkham’s Expert Methodology                               
   LSP Defendants also attack Dr. Kirkham’s methodology. (Rec. Doc. 195-2 at 
15). They argue that Dr. Kirkham bases his opinions on facts that do not exist or that 

lack evidentiary support. Id. at 15-16. For example, LSP Defendants claim that Dr. 
Kirkham erroneously bases his opinions on the fact that the shooting officers had 
knowledge that Mr. Asante-Chioke was experiencing a mental health crisis. Id. at 16. 
LSP  Defendants  argue  that  the  shooting  officers  lacked  such  knowledge.  Id. 
Therefore, Defendants assert that Dr. Kirkham uses unreliable methodology because 
he bases his opinions on facts that do not exist. Id.                     

   Plaintiff argues that the factual evidence in the record supports Dr. Kirkham’s 
conclusions. (Rec. Doc. 221, at 8). Plaintiff asserts that any disputes concerning these 
facts should go the weight of Dr. Kirkham’s opinion and not to the reliability of his 
methodology. Id.                                                          
   Plaintiff’s argument has merit. In this Court, an “attack on the factual basis of 
[an expert’s] opinion is not a ground for exclusion.”  Solstice Oil & Gas I LLC v. OBES 
Inc., No. 12-2417,
2015 WL 5059601
, at *7 (E.D. La. Aug. 26, 2015). That is what LSP 

Defendants  have  done  here.  So,  LSP  Defendants  attack  on  Dr.  Kirkham’s 
methodology fails.                                                        
   EJLD Defendants also attack Dr. Kirkham’s methodology by arguing that his 
opinions are not based on the “methods and procedures of science.” (Rec. Doc. 196-1, 
at 11 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579
(1993)). 
    Plaintiff argues that an expert’s opinions need not be grounded in science. (Rec. 
Doc. 221, at 12). 
    Plaintiff's argument has merit. Expert testimony does not always have 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).  Accordingly,  Dr.  Kirkham  may  base  his 
opinions on his technical or specialized knowledge on police use of deadly force. 
                             CONCLUSION 
    Accordingly, 
    IT IS HEREBY ORDERED that LSP Defendants’ motion (Rec. Doc. 195) is 
GRANTED in part and DENIED in part. 
    IT IS FURTHER ORDERED that EJLD Defendants’ motion (Rec. Doc. 196) 
is DENIED. 
    Dr.  Kirkham  will  be  allowed  to  testify  as  an  expert  in  this  case,  but  his 
testimony will be limited to his opinions on applicable police policies and procedures 
and whether the  shooting officers violated said policies and procedures when they 
continued to fire upon Mr. Asante-Chioke. 
    New Orleans, Louisiana, this 2nd day of October, 2025. 
                                         LK   Soke 
                                     HK                       Pale 

                                  CARL J. BAR yh RM 
                                  UNITED STATES DISTRICT JUDGE 

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