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Edward F. Novak (#006092) 

enovak@polsinelli.com 

Melissa Ho (#023269) 

mho@polsinelli.com 

Jonathan G. Brinson (#025045) 

jbrinson@polsinelli.com 

Andrew T. Fox (#034581) 

afox@polsinelli.com 

POLSINELLI PC 

CityScape 

One East Washington Street, Suite 1200 

Phoenix, AZ 85004 

Phone: (602) 650-2000 │ Fax: (602) 264-7033 

Attorneys for Defendants State of Arizona, Silbert,

Kalkowski, Milstead, Hunter, Heape, Pinnow, and Falcone 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Leslie A Merritt, Jr., a single man, 

Plaintiff, 

vs. 

State of Arizona, a body politic; Bill 

Montgomery, the elected Maricopa 

County Attorney, in his official and 

individual capacities; Maricopa County, 

a body politic; Heston Silbert, in his 

individual capacity; Christopher 

Kalkowski, in his individual capacity; 

Frank Milstead, in his individual 

capacity; Ken Hunter, in his individual 

capacity; Kelly M. Heape, in his 

individual capacity; Jennifer Pinnow, in 

her individual capacity, Anthony 

Falcone, in his individual capacity; 

Edward Leiter, in his individual 

capacity; Vanessa Losicco, in her 

individual capacity. 

Defendants. 

Case No. CV17-4540-PHX-DGC 

DEFENDANT STATE OF ARIZONA’S 

MOTION TO EXCLUDE OPINIONS AND 

TESTIMONY OF IVAN MATHEW 
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Defendant State of Arizona moves to exclude Ivan Mathew as a testifying expert 

witness. Mathew, a criminal defense lawyer, was retained as an expert to opine on 

“whether the prosecutors’ actions violated the standard of care, and if so, whether 

prosecutorial actions were a cause of harm to Mr. Merritt.” See Mathews Report, attached 

hereto as Exhibit A at 2. Mathew’s stated qualifications for rendering his opinions include 

his experience as a criminal lawyer, and his familiarity “with the standard of care for 

criminal prosecutors” and “the ethical obligations of a lawyer.” Id. at 5, 16 (under headings 

“Qualifications” and “Curriculum Vitae”). Mathew does not possess any qualifications or 

experience in criminal investigations, law enforcement policies and procedures, or forensic 

science (much less in ballistic evidence or GPS Cell site information). Id. (“Qualifications” 

and “Curriculum Vitae” do not stated any education, experience, or specialized knowledge 

in law enforcement investigations, policies or procedures, or forensic sciences). Mathew 

worked as a prosecutor from 1987-1991 and since then has practiced “white collar criminal 

defense.” 

 In light of the stated purpose for being retained and his qualifications, it is 

unsurprising that Mathew’s report is filled with opinions concerning the actions of the 

Maricopa County Attorney’s Office (“MCAO”). His report identifies three categories of 

opinions: “[MCAO]’s Participation in the False arrest,” “MCAO/Liability for False Press 

Statements,” and “Causation.” Included within those categories, Mathew opines to the 

following: “MCAO’s actions grossly violated the standard of care for prosecutors;” 

“MCAO grossly deviated from the standard of care by failing to fairly and reasonably 

analyze the shootings;” “The actions of MCAO were grossly deficient;” and “County 

Attorney Montgomery deliberately misstated the appropriate legal status of Mr. Merritt as a 

defendant.” Id. at 2-4. Neither MCAO nor any of its prosecutors are a party to this case. 

Therefore, any opinions concerning their purported violation of the standard of care is 

irrelevant and is likely to confuse the issues and mislead the jury. 

 Despite not having the specialized knowledge, training, or experience in police 

policies and procedures, criminal investigations or forensic science, it appears that Plaintiff 
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still intends to call Mathew in this case. Mathew’s report includes opinions that 

tangentially relate to DPS and its investigation. Mathew is not qualified to be an expert 

witness on the conduct of DPS police officers or forensic scientists.1 See Fed. R. Evid. 702. 

 For example, he opines that “County Attorney Montgomery knew or should have 

known that cell phone GPS information of August 29, 2015, from Mr. Merritt’s phone 

corroborated [his] alibi.” Id. at 4. Mathew does not have any expertise in GPS cell site 

information, nor does his report explain how the results corroborate Merritt’s alleged alibi. 

Similarly, Mathew also tangentially opines about ballistics evidence, pole cameras, 

honeypot website, and license plate readers. Id. Mathew should not be permitted to opine 

on matters such as (1) ballistics evidence; (2) tire analysis; (3) GPS cell cite information; or 

(4) other criminal investigative technologies like pole camera and license plate readers.2 

Any testimony elicited from Mathew on these issues would simply result in him parroting 

and vouching for the opinions of other experts. Mathew cannot do this. See In re: Bard 

IVC Filters Prods. Liab. Lit., 2018 WL 495188, *3 (D. Ariz. Jan. 22, 2018) (stating that no 

“expert will be permitted at trial to simply parrot the opinions of other experts, or to vouch 

for those experts”); see also Tokio Marine & Fire Ins. Co. v. Norfolk & Western Ry. Co., 

1999 WL 12931 at *4 (4th Cir. 1999) (Table) (“one expert may not give the opinion of 

another expert who does not testify”); In re Imperial Credit Indus., Inc. Sec. Litig., 252 F. 

Supp.2d 1005, 1012 (C.D. Cal. 2003). 

 Mathew’s testimony should be excluded. Given that the issue of liability in this case 

turns on whether arresting officers had probable cause to arrest Merritt on September 18, 

 

1

 It is equally unclear how Mathew’s testimony is not cumulative of that of Plaintiff’s 

experts Roger Clark who opines on police policies and procedures and whether DPS 

complied with as much in investigating the I-10 shootings. 

2

 For the reasons set out in Defendant’s Motion in Limine (Sixth) RE: Alleged Fabrication 

of Evidence; perjury; and withholding of exculpatory information, the Court should 

preclude any evidence on fabrication of ballistics evidence or the withholding of 

exculpatory information as the Court has already found that no reasonable juror could find 

as much. 
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2015, Mathew’s opinions regarding MCAO and their prosecutors are irrelevant, likely to 

confuse the issues and mislead the jury. Moreover, any opinions he offers on DPS police 

officers and forensic scientist does not rely on specialized knowledge, are not based on 

sufficient facts, are not the product of reliable principles and methods, and are not reliable. 

Fed. R. Evid. 702. 

 RESPECTFULLY SUBMITTED this 28th day of February, 2020. 

POLSINELLI PC 

By: /s/ Jonathan G. Brinson 

Edward F. Novak 

Melissa Ho 

Jonathan G. Brinson 

Andrew T. Fox 

One E. Washington Street, Suite 1200 

Phoenix, AZ 85004 

Attorneys for Defendant State of Arizona 
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CERTIFICATE OF SERVICE 

 I hereby certify that on this 28th day of February, 2020, I electronically transmitted 

the attached document to the Clerk’s Office using the CM/ECF system for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 

Clerk of the Court 

United States District Court, District of Arizona 

Sandra Day O’Connor Courthouse 

401 W. Washington Street 

Phoenix, AZ 85003 

Jason D. Lamm 

Law Office of Jason Lamm 

2501 N. Seventh Street 

Phoenix, Arizona 85006 

jlamm@cyberlawaz.com 

 By: /s/ Dawn Coppens