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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, and Anthony 

Falcone, in his individual capacity. 

Defendants. 

Case No. CV17-04540-PHX-DGC 

DEFENDANT STATE OF ARIZONA’S 

MOTION TO EXCLUDE OPINIONS AND 

TESTIMONY OF TODD WELLER 
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 Defendant State of Arizona moves to exclude Todd Weller as a testifying expert 

witness. Plaintiff offers Weller as an expert on four opinions: (1) the Crime Lab 

misidentified Merritt’s firearm; (2) the Crime Lab violated forensic standards and 

department policy; (3) the Crime Lab’s quality assurance response was inadequate; and (4) 

“Hackbarth’s tire most likely (or probably) deflated within minutes of having been shot.” 

[See Weller Report, attached hereto as Exhibit 1 at 6 (under “Summary of Findings”); 

Weller Rebuttal Report, attached hereto as Exhibit 2 at 4]. Weller admits that he did not do 

any testing on physical evidence or review physical evidence to reach his conclusions. 

[Deposition of Todd Weller (1/18/19) (“Weller Depo.”), attached hereto as Exhibit 3, at 

64:22-65:2]. As set forth below, respectively, the Court should preclude Weller from 

testifying on the four proffered opinions. 

(1) Alleged Misidentification of Merritt’s Firearm 

Weller himself opined that: 

Firearm and toolmark examination is a two-part test. . . . The second 

examination step involves the use of comparison microscopy to compare 

individual toolmarks. If an examiner compares two items and observes 

sufficient agreement of individual toolmarks, then the AFTE Theory of 

Identification states an examiner can conclude common origin. [Weller 

Report at 4-5 (emphasis added)]. 

Weller admittedly did not follow this two-step process. [Weller Depo. at 117:1-3 (“Q. So 

you did not follow the two-step process, correct? A. Correct. I did not examine the 

evidence in this case”)]. Nor could Weller “think of an example where [he was] testifying 

as to [his] expertise in firearms/toolmark analysis as to whether there was an identification 

where [he] had not examined the physical evidence.” [Id. at 67:9-13]. This is his first time 

of so doing. 

Instead, he gives a statistical opinion based entirely on: (1) the reports of Lucien 

Haag, John Murdock, and Greg Klees (which came several months after Merritt’s arrest); 

and (2) his conclusory statement that Merritt’s firearm was in pawn when Hackbarth’s tire 

was shot. Even though Weller admits that he is not a statistician, his opinion is that “[g]iven 
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the low error rates of the profession, the chance of all three independent examiners reaching 

the same conclusion and all being incorrect is not reasonable.” [Weller Depo. at 128:1-7]. 

The three examiners that Weller relies upon whole-cloth did not themselves consider 

whether the firearm was in pawn when Hackbarth’s tire was shot, as this is contrary to 

professional standards. [Weller Depo. at 125:1-4 (recognizing that none of those three 

examiners “considered where the firearm was at the time that the bullet was shot”); 123:17-

20 & 124:12-15 (stating that under AFTE standards “you should not consider anything 

outside of the specific materials that you’re considering”); Ex. 8 thereto (AFTE Code of 

Ethics at II(D) (“The examiner is unbiased and refuses to be swayed by evidence or matters 

outside the specific materials under consideration”)]. 

Weller does not have any scientific or industry standard for what constitutes an 

“independent” examiner, as this standard was simply created by Weller. [Weller Depo. at 

135:25-136:3].1 Despite lacking this scientific or industry basis, Weller’s opinion simply 

attempts to parrot that of Haag, Murdock and Klees, and vouches for their veracity over that 

of the five DPS Crime Lab forensic scientists. Weller 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”). Weller did not follow any recognized standards in avoiding the two-step 

analysis and instead merely vouching for Haag, Murdock and Klees. 

(2)(3) Crime Lab Policies And Procedures 

As set forth in the briefing that Defendant will file on March 2nd, the knowledge of 

civilian forensic scientists cannot be imputed to investigating officers. The investigating 

officers were only informed that the forensic scientists had made an identification of 

Merritt’s gun, and were not informed regarding what policies and procedures were followed 

 

1 John Murdock is the one that referred Merritt’s counsel to Todd Weller. [Weller 

Depo. at 54:11-14]. Weller did not keep separation between himself, Murdock and Haag, 

having dinner with them in December 2018 to discuss his opinions. [Id. at 59:16-24; 

136:22-137:3]. This troubling double-standard on “independence” derives from a lack of 

any scientific or industry basis on which to make such a determination in the first place.
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in making that identification. None of the civilian forensic scientists are trained in probable 

cause analysis and criminal law. Accordingly, Weller’s testimony on topics (2) and (3) are 

irrelevant and unduly prejudicial by introducing facts unknown to the investigating officers. 

(4) Tire Analysis 

By his own admission, Weller has “never had casework that involved a tire.” [Weller 

Depo. at 26:11-15]. When asked “[d]o you have any specialized knowledge with respect to 

car tires,” Weller responded “No.” [Weller Depo. at 88:6-8]. His only education and 

training relating to his opinion on tires comes from “less than one hour” of a broader oneweek training, wherein Weller watched three tires get shot,2 possibly a “small component” 

of two one-day classes (although Weller cannot remember for sure), and reading “three to 

four pages” of a textbook written by Lucien Haag. [Weller Depo. at 26:11-15, 28:3-29:12, 

29:23-31:12, 87:13-21]. That is the entirety of his stated expertise. Weller has no training 

with respect to run-flat tires. [Id. at 31:13-16 (“Q: [I]n any of that coursework that you did, 

were you – did you ever get any training with respect to run-flat tires? A. No”)]. 

Less than one hour of training and reading 3-4 pages of literature is not expertise. 

Weller describes his opinion as “common sense.” [Weller Depo. at 77:15-78:11]. Noedel is 

precluded from offering similar testimony, and his experience is far greater than Weller’s. 

CONCLUSION

Weller’s opinions (1) and (4) do 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. “It is the proponent of the expert who has the burden of proving 

admissibility.” Lust By & Through Lust v. Merrell Dow Pharm., Inc., 89 F. 3d 594, 598 (9th 

Cir. 1996). Opinions (2) and (3) are simply not relevant to the issue of liability in this case – 

whether arresting officers had probable cause to arrest Merritt on September 18, 2015. 

Accordingly, Weller’s testimony should be excluded.

 

2 Those three tires were not run-flats, were not shot by ricochet, and were not known to 

have a rubber flap similar to that found on Hackbarth’s tire in this case. [Weller Depo. at 31:13-16, 

77:16-25, 78:18-21, 79:3-8]. 
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 DATED 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 Defendants State of Arizona, 

Silbert, Kalkowski, Milstead, Hunter, 

Heape, Pinnow and Falcone 
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CERTIFICATE OF SERVICE 

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

this Notice 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 

6245 North 24th Parkway, Suite 208 

Phoenix, AZ 85016-2030 

jlamm@cyberlawaz.com

Attorneys for Plaintiff Leslie Merritt, Jr. 

 By: /s/ Dawn M. Coppens