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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 

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 

SUPPLEMENTAL BRIEFING ON 

MOTIONS IN LIMINE DOCS. 290, 335-336
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 As set forth below, Defendant respectfully requests an order: (1) that precludes 

testimony of Lucien Haag and admission of written materials prepared by John Murdock and 

Gregory Klees; and (2) admits John Maciulla’s expert testimony. To the extent the Court 

allows Haag to testify, or admits the Murdock and Klees written materials, Defendant 

requests that Lisa Peloza and Aaron Brudenell be entitled to offer expert testimony as well. 

BACKGROUND

I. PLAINTIFF’S DISCLOSURES 

Plaintiff has not disclosed Haag, Murdock or Klees as expert witnesses. See Greater 

Hall Temple Church of God v. Southern Mutual Church Ins. Co., -- Fed. App’x --, 2020 WL 

3989081, *3 (8th Cir. 2020) (holding that party violated Fed. R. Civ. P. 26(a)(2)(A) despite 

identifying witness as expert, where it sought to introduce witness as expert on additional 

topic). Plaintiff has only identified Haag, Murdock, and Klees as fact witnesses. [Excerpts of 

Plaintiff’s 22nd Supplemental Disclosure Statement at 4, 18-20, ¶¶ 100, 102 & 105, attached 

hereto as Exhibit A]. As part of the Maricopa County Attorney’s Office’s (“MCAO”) 

criminal proceedings (not these proceedings), and several months after Merritt’s arrest, Haag, 

Murdock and Klees produced written materials regarding their review of certain evidence: 

Haag: At the request of MCAO, Haag completed a report in April 2016, and 

another in May 2016. [See Haag Reports, attached hereto as Exhibit B]. The 

April 2016 report has just two pages of written materials, and nowhere 

identifies opinions Haag will offer at trial in the present litigation. 

Murdock: In March 2016, Sherry Leckrone at MCAO requested for 

Murdock to analyze evidence bullets as well. [See Murdock Lab Report at 

3, attached hereto as Exhibit C]. Murdock’s “report,” is a collection of 

handwritten worksheets, including the “Evidence Comparison Worksheet,” 

“Laboratory Worksheet” and “Firearms/Toolmarks Section Digital Image 

Record” [Id. at 6-30]. The report does not identify opinions Murdock would 

offer at trial in the present litigation. 

Klees: DPS requested that a separate government agency, the Bureau of 

Alcohol, Tobacco, Firearms and Explosives (“ATF”), provide an “impartial” 

analysis on the bullets in evidence. Klees, a Firearms and Toolmark 

Examiner with ATF, provided a report in April 2018. His report does not 

offer a summary of his opinions or results, but includes a brief section on 

“analysis and interpretation of results.” [Klees Lab Report, attached hereto 
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as Exhibit D; see also John Maciulla Deposition Exhibit No. 7, attached 

hereto as Exhibit E]. Nowhere does Klees’ report identify the opinions he 

would testify to at trial. 

Plaintiff identified Haag as a “fact witness” only in the Joint Pretrial Report, and did 

not identify Murdock or Klees as witnesses for trial. [See Joint Pretrial Report (Doc. 334) at 

E(1)(a)(15)]. Although Plaintiff identified as trial exhibits the materials prepared by Haag, 

Murdock, and Klees as part of the criminal proceedings, those materials were never presented 

to Defendant as Rule 26(a)(2)(A) disclosures. [Id. at F(2)(a), Exs. 22, 23. 28, and 61]. 

II. DEFENDANT’S DISCLOSURES 

Defendant identified Maciulla as a rebuttal expert and timely disclosed his Rebuttal 

Report. [Excerpts of Defendant’s 24th Supplemental Disclosure Statement at 2, attached 

hereto as Exhibit F]. Maciulla’s Rebuttal Report provides his qualifications, a list of his prior 

testifying experience, documents reviewed in this case, findings, and conclusions. [John 

Maciulla Expert Rebuttal Report at 1, attached hereto as Exhibit G]. Plaintiff deposed 

Maciulla twice, once as a fact witness and once as an expert witness. Defendant identified 

Maciulla as both a fact witness and a rebuttal expert in the Joint Pretrial Report. [Doc. 334 at 

E(2)(b)(2)]. Defendant also identified Peloza and Brudenell as witnesses with “knowledge 

related to the investigation of the shootings described.” [Excerpts of Defendant’s 21st

Supplemental Disclosure Statement at 3, attached hereto as Exhibit H]. 

Peloza’s .357 Report was disclosed to Plaintiff in March 2017.1 [See Peloza June 13, 

2016 Report, attached hereto as Exhibit I; Peloza June 16, 2016 Report, attached hereto as 

Exhibit J; Defendant’s Response to Plaintiff’s First Request for Production, attached hereto 

as Exhibit K]. In the Joint Pretrial Report, Defendant identified Peloza as a fact witness that 

would testify “about the test she conducted in the I-10 shootings investigations, including test 

 

1

In response to an article authored by Haag, which opined that .357 caliber rounds could be 

used in a criminalists analysis for cases involving a 9mm bullet because of the .357’s slightly 

larger size, Peloza conducted a .357 analysis of the evidence in this case. She was able to 

both confirm Kalkowski’s identification, and make additional identifications previously 

deemed inconclusive based on the superior quality of the .357 comparison markings. 
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fires of weapons retrieved from pawnshops and Merritt’s 9mm High Point Model C-9 

handgun.” [Doc. 334 at E(2)(b)(8)]. 

ARGUMENT 

I. MOTIONS TO PRECLUDE HAAG FROM TESTIFYING 

A. Plaintiff Did Not Make a Rule 26(a)(2)(A) Disclosure for Haag 

Under Rule 26(a)(2)(A), “a party must disclose to the other parties the identity of any 

witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 

705.” Fed. R. Civ. P. 26(a)(2)(A). “If a party fails to provide information or identify a witness 

as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to 

supply evidence . . . at a trial, unless the failure was substantially justified or is harmless.” 

Fed. R. Civ. P. 37(c)(1). Plaintiff did not disclose Haag as an expert witness. This failure is 

not substantially justified, as Plaintiff chose to rely solely on Todd Weller, not Lucien Haag, 

as the disclosed expert on firearm and tool mark analysis. See Lopez v. I-Flow Inc., 2011 WL 

7424141, *1 (D. Ariz. May 12, 2011) (holding that plaintiffs failed to show substantial 

justification for failure to disclose additional expert witness where plaintiffs’ only disclosed 

expert had been excluded by the court). 

Nor can Plaintiff meet his burden of showing a lack of prejudice. “Courts regularly 

deny a request to late-disclose an expert witness where it would result in significant expense 

to the opposing side and delay proceedings.” Lopez, 2011 WL 7424141 at *2 (“Plaintiffs have 

not shown how the cost and delay resulting from their disclosure of a new expert witness 

after the summary judgment motions have been filed will be avoided”); accord Grotheer & 

Co. v. Safe Haven Enter., LLC, 636 Fed. App’x 8 (D.C. Cir. 2016) (affirming district court’s 

order excluding untimely disclosed expert witness from testifying). 

Had Plaintiff disclosed Haag as an expert witness, with the necessary disclosures, 

Defendant would have had the opportunity to depose him on his proposed opinions, prepare 

Peloza and Brudenell as rebuttal experts, obtain additional information about Haag’s methods 

and theories, file a potential Daubert motion, adjust the exhibits and witnesses Defendant 
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placed on the Joint Pretrial Statement, and otherwise conduct further discovery and trial 

strategy related to Haag’s opinions. 

Allowing Haag to now be disclosed as an expert witness would require a reopening of 

discovery, a disclosure of Haag’s opinions to be offered at trial, designation of Defendant’s 

experts on the same topics, depositions, a reopening of the Joint Pretrial Statement, and 

otherwise reformulating trial strategy in a case that has already been prepared and set for a 

trial that was only delayed because of COVID-19. Plaintiff’s failure is not harmless. 

B. Plaintiff Did Not Make A Rule 26(a)(2)(C) Disclosure 

Failure to disclose under Rule 26(a)(2)(A) alone should preclude Haag as an expert 

witness. As an additional ground, Plaintiff did not provide a Rule 26(a)(2)(C) disclosure, 

which must contain: “(i) the subject matter on which the witness is expected to present 

evidence under Federal Rule of Evidence 702, 703, or 705;” and “(ii) a summary of the facts 

and opinions to which the witness is expected to testify.” Plaintiff simply stated: 

Mr. Haag . . . conducted various tests on firearms and ammunition associated 

with the prosecution of Plaintiff by the [MCAO]. He also performed various 

trajectory and crime scene reconstruction analysis. He will testify consistent 

with his report and case file, all of which has been previously disclosed. [Ex. 

A ¶ 100].

Haag’s report to MCAO does not anywhere identify the subject matter on which he is 

expected to testify at trial. Moreover, even if Plaintiff had made a Rule 26(a)(2)(C) disclosure, 

which he did not, such disclosures are insufficient “where their disclosures have failed to 

fairly inform the other party of the substance and basis of a non-retained witness’s testimony 

. . . .” Transoceanic Cable Ship Co. LLC v. Bautista, No. 17-00209, 2018 WL 3521174, at *3 

(D. Haw. 2018) (collecting cases). A “Rule 26(a)(2)(C) disclosure must contain enough detail 

to allow the opposing party to make an informed decision on which, if any, [criminalists] it 

should depose or cross-examine.” Scolaro v. Vons Co., Inc., No. 17-cv-01979, 2019 WL 

7284738, at *4 (D. Nev. 2019). “A ‘summary’ is ordinarily understood to be an ‘abstract, 

abridgement, or compendium.’” Transoceanic Cable Ship Co. LLC v. Bautista, No. 17-

00209, 2018 WL 3521174, at *3 (D. Haw. 2018) (quotations omitted).
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The mere fact that Plaintiff identified the underlying report to MCAO is insufficient 

to remedy his failure. Critically, “courts have summarily rejected the argument that mere 

disclosures of [underlying] records without an accompanying disclosure summary 

satisfies Rule 26(a)(2)(C).” Jones v. Colo. Casualty Ins. Co., No. CV-12-01968, 2015 WL 

6123125, at *4 (D. Ariz. 2015) (collecting cases) (emphasis added); see also Ballinger v. 

Casey’s Gen. Store, Inc., No. 1:10-CV-1439, 2012 WL 1099823, at *4 (S.D. Ind. 

2012) (“[A]llowing a party to ‘go beyond’ the requirements of Rule 26(a)(2)(C) by providing 

medical records in lieu of a summary would invite a party to dump a litany of medical records 

on the opposing party, contrary to the rule’s attempt to extract a ‘summary.’”). 

 Under Rule 37(c)(1), a party who fails to disclose an expert witness as required in Rule 

26(a) may not rely on that witness’s testimony “unless the failure was substantially justified 

or harmless.” Scolaro, 2019 WL 7284738, at *5. In determining whether the inadequate 

disclosure was harmless courts consider: “(1) prejudice or surprise to the party against whom 

the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of 

disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the 

evidence.” See Lanard Toys Ltd. v. Novelty, Inc., 375 Fed. App’x. 705, 713 (9th Cir. 2010). 

The party facing sanctions under Rule 37 has the burden of showing substantial justification 

or harmlessness. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 

(9th Cir. 2001). 

 Plaintiff’s failure to properly disclose Haag’s opinions and bases is not harmless. In 

addition to the harm set forth above, Plaintiff offered Haag only as a fact witness, and from 

the outset Defendant has maintained that Haag cannot act as a fact witness. [Doc. 335]. This 

position ultimately proved correct. Defendant still does not know what Haag’s proffered 

opinions are for trial. Defendant had no reason, and no opportunity, to counter-designate 

Peloza as an expert based on her .357 analysis and report (conducted after Haag’s report), 

which confirmed Kalkowski’s identification of Merritt’s firearm. Nor was Peloza asked to 

prepare a rebuttal report for the same reason. The same is true for Brudenell.
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This prejudice warrants Haag’s preclusion as an expert witness at trial. Frederick v. 

Frederick, 2018 WL 3738199, at *2 (D. Ariz. 2018) (finding that without adequate expert 

disclosure, opposing party unable to adequately prepare for deposition); Kassim v. United 

Airlines, Inc., 320 F.RD. 451, 454 (E.D. Mich. 2017) (“allowing parties to obviate the need 

to provide Rule 26(a)(2) disclosures and reports by simply making their experts available to 

be deposed would render the Rule meaningless”). While Defendant believes that Plaintiff 

should be precluded from offering Haag as an expert witness, to the extent the Court allows 

Haag to testify, fairness dictates that Peloza and Brudenell be permitted to testify as well. 

II. MOTION TO PRECLUDE MURDOCK AND KLEES REPORTS 

A. The Murdock And Klees Written Materials Do Not Satisfy Rule 702 

The Court has already found that “post-arrest conclusions by any expert are not 

relevant as part of the facts known at the time of arrest – they were not known then.” [(Doc. 

382 at 3)]. Instead, “they are relevant on the question of whether Kalkowski’s match was 

reasonable,” in the form of expert opinion and subject to Rule 702. [Id. at 3-4]. Here, the 

expert reports of Murdock and Klees were created long after Plaintiff’s arrest, therefore, their 

only relevance is as expert testimony. [Exs. C & D]. Neither Murdock nor Klees are testifying 

at trial, let alone as experts, and their written materials cannot be admitted alone. See, e.g., 

Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 728 (6th Cir. 1994) (“Rule 702 permits 

the admission of expert opinion testimony, not opinions contained in documents prepared out 

of court”); Salem Water Users Ass’n Inc. v. City of Benton, 2001 WL 36386246, *2 (E.D. 

Ark. 2001) (“In general, only testimony of the expert is admissible. Reports are hearsay.”); 

Celador Int’l, Ltd. v. Walt Disney Co., 2008 WL 11342595, *2 (C.D. Cal. Dec. 17, 2008) 

(“[T]he expert reports themselves are not admissible under the Federal Rules”). 

B. The Written Materials Do Not Satisfy Rules 26(a)(2)(C) or 37(c)(1) 

Nor did Plaintiff adequately disclose Klees or Murdock expert opinions. The entirety 

of Plaintiff’s disclosure as to Klees and Murdock are as follows: 

102. Mr. Murdock is a forensic scientist who conducted various tests on 

firearms and ammunition associated with associated with the prosecution of 
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Plaintiff by the Maricopa County Attorney’s Office. He will testify 

consistent with his report and case file, all of which has been previously 

disclosed. 

105. Gregory S. Klees [Ex. A at 19-20].2

Plaintiff’s efforts to admit reports without the testimony of the drafting expert is an 

end-run on the Court’s ruling and the Rules of Civil Procedure. Here, Plaintiff seeks to 

introduce reports, offering (what the Court has already determined to be) expert opinions, 

without proper expert disclosure or through a testifying witness. Engebretsen, 21 F.3d at 728 

(“Neither their written opinions nor the materials on which they relied were admissible under 

Rules 702 and 703. Thus, the District Court’s conclusion that Rules 702 and 703 permit the 

admission of the reports was erroneous”). As with Haag, had Plaintiff timely designated these 

individuals as experts, Defendant would have counter-designated Peloza and Brudenell as 

rebuttal experts.3

C. Expert Reports Are Inadmissible Hearsay 

 Murdock’s and Klees’ underlying written materials are also inadmissible hearsay. See 

Hunt v. City of Portland, 599 Fed. App’x. 620, 621 (9th Cir. Oct. 21, 2013) (expert report is 

inadmissible hearsay). Nor are there exceptions here under Fed. R. Evid. 802(d)(2)(B) or (D), 

which only apply if “[t]he statement is offered against an opposing party and: (B) is one the 

party manifested that it adopted or believed to be true; or (D) was made by the party’s agent 

or employee on a matter within the scope of that relationship and while it existed.” 

 On its face, “Rule 801(d)(2)(D) requires . . . agency.” Hill v. Novartis Pharm. Corp., 

944 F. Supp. 2d 943, 950 (E.D. Cal. 2013). “An agency relationship arises when ‘both the 

principal and the agent must manifest assent to the principal’s right to control the agent.’” Id. 

citing U.S. v. Bonds, 608 F.3d 495, 506 (9th Cir. 2010). The proponent of the evidence has 

the burden of proving agency under Rule 801(d)(2)(D). Bonds, 608 F.3d 512. 

 

2

 The Court held that Murdock’s and Klees’ findings cannot be bootstrapped through other 

witnesses. [(Doc. 382) at 8-9]. 

3

 Moreover, although the existence of the report is not surprising, the fact that the report could 

now be admitted to offer expert opinions is highly prejudicial. Because Plaintiff never 

designated the report’s authors as expert witnesses, Defendant had no reason to believe these 

reports contained expert opinions as contemplated by Rule 702. 
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Neither Murdock nor Klees were agents (or employees) of Defendant. MCAO, not 

DPS, asked Murdock to conduct an analysis. [Ex. B at 3]. Although DPS asked for ATF’s 

analysis, it did not have any control over ATF (as an entirely separate government agency) 

or Klees. In fact, its request expressly sought an impartial outside review. [Ex. E]. Nor do 

the facts here satisfy the possession plus test under Fed. R. Evid. 801(d)(2)(B). See Transbay 

Auto Serv., Inc. v. Chevron USA Inc., 807 F.3d 1113, 1119-20 (9th Cir. 2015) (“A party may 

adopt a written statement if the party uses the statement or takes action in compliance [with] 

the statement”); see also Penguin Books USA Inc. v. New Christian Church of Full Endeavor, 

Ltd., 262 F. Supp. 2d 251, 262 (S.D.N.Y. 2003) (“[T]he mere fact that the party has acted (or 

failed to act, in the case of an admission by silence) in some way in reference to the statement 

or information (as by repeating it or retaining it) is not sufficient, standing alone, to justify a 

finding that there has been an adoption.”). 

III. TESTIMONY OF MACIULLA, BRUDENELL, AND PELOZA 

Maciulla was timely disclosed, provided a report, and was deposed as an expert. His 

testimony should be admitted. Disclosures for Brudenell and Peloza do not satisfy Rule 

26(a)(2)(C), the same as Haag. Their admissibility turns on substantial justification or 

harmlessness. There is no surprise that Peloza and Brudenell would testify about their lab 

tests and conclusions, as Plaintiff’s own disclosure identifies them as witnesses. [Ex. A at 12-

13 ¶¶ 59 and 69]. Plaintiff disclosed that Peloza “[w]ill testify as to . . . her role in testing and 

examination of various firearms and ammunition related to this case.” [Id. at 12 ¶ 59]. To the 

extent the Court allows testimony or evidence from Haag, Murdock, or Klees, Peloza and 

Brudenell should also testify.

CONCLUSION

For reasons stated above, Defendant requests that the Court enter an order precluding 

testimony from Lucien Haag, precluding evidence of the John Murdock and Greg Klees 

material, and allowing expert testimony of John Maciulla. In the alternative, to the extent that 

the Court allows Haag testimony or the Murdock and Klees materials, it should order that 

Lisa Peloza and Aaron Brudenell are entitled to offer expert opinions as well. 
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RESPECTFULLY SUBMITTED this 28th day of August, 2020. 

POLSINELLI PC 

By: /s/ Jonathan G. Brinson 

Edward F. Novak 

Melissa Ho 

Jonathan G. Brinson 

Andrew T. Fox 

Attorneys for Defendant State of Arizona 
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CERTIFICATE OF SERVICE 

 I hereby certify that on this 28th day of August, 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/ Jonathan G. Brinson