-1-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Jason D. Lamm (018454)

Law Office of Jason Lamm

2501 N. Seventh Street

Phoenix, AZ 85006

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

Law Office of David J. Don, PLLC

301 E. Bethany Home Rd., Ste. B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-775

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie A. Merritt, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Leslie A Merritt, Jr., a single man,

Plaintiff,

vs.

State of Arizona, et al.

Defendants.

)

)

)

)

)

)

)

)

)

Case No.: CV17-4540-PHX-DGC

PLAINTIFF'S SUPPLEMENTAL 

PLEADING RE MOTIONS IN 

LIMINE DOCS 290, 335, 336

The Plaintiff submits his supplemental briefing under the Court's Order at 

Doc 382.

I. Facts

A. Lucien "Luke" Haag

The Plaintiff disclosed Luke Haag in his Initial Disclosure Statement of 

December 16, 2016. The disclosure statement included the reports of Haag's 

ballistic examination, his shooting reconstruction, and the tire deflation testing 
-2-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

which he jointly-conducted with DPS crime lab employee, Aaron Brudenell, 

demonstrating the de minimis time the BMW tire took to deflate after being shot. 

The Plaintiff also concurrently disclosed the entirety of Haag’s file, including his 

curriculum vitae, a list of his publications, and his billings containing his rate of 

compensation.

The parties deposed Haag on June 6, 2017, and August 30, 2017, and the 

Defendant questioned him at length about the basis for his views that he did not 

agree with Kalkowski’s conclusion that that the Plaintiff's gun fired the evidentiary 

bullets and that Hackbarth's tire deflated immediately after being shot. (Exhibit 1, 

Deposition of Lucien Haag (Vol. 1) at 72:5-17, 105:13-106:16). Exhibit 2, Deposition 

of Lucien Haag (Vol. 2) at 4:13-24, 51:24-52:7.

Haag will testify about his examinations of the evidence bullets, statements 

that Kalkowski made directly to him, and the tire deflation study which he 

conducted with Brudenell. All of Haag's reports, which contained his opinions,

were admitted as exhibits at his depositions over two days. (See Exhibit 1 at pp.2-3). 

B. John Murdock

In response to Plaintiff's written discovery requests, on March 15, 2017, 

Defendant produced the entirety of Murdock's file, including his report, CV, and 

billings. The parties deposed Murdock on June 13, 2017. All of Murdock's reports 

were admitted as exhibits at his deposition. (See Exhibit 3 at p. 2). The Defendant's 

counsel questioned him extensively about why he believed Kalkowski misidentified 

Plaintiff's gun, and about statements Kalkowski made to him when Kalkowski

ignored Murdock's efforts to discuss the substantive differences in their opinions, 
-3-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

as required under the profession's (AFTE’s) Code of Ethics, which DPS purports to 

follow.

C. Gregory Klees

Under the DPS Crime Lab Quality Assurance policy, DPS was required to have 

an impartial party review the ballistic identification given conflicting findings of 

Haag. Exhibit 4, Deposition of John Maciulla (Vol. 1) at Ex. 7. The State engaged 

Gregory Klees, an ATF criminalist, to conduct an independent comparison of the 

evidence bullets and Plaintiff's gun. The DPS crime lab "request[ed] that the ATF 

rework the case as an impartial party." Id at . DPS Deputy Director Silbert took 

credit for having come up with having ATF retest on DPS's behalf. (Exhibit 5, 

Deposition of Heston Silbert at 133:16–134:11). Maciulla testified that he 

"accept[ed] the findings of Klees (and the ATF) as an impartial party" and that ATF 

was not wrong. (Exhibit 4 at 123:18-124:8). Maciulla testified that Klees was known 

to DPS as he taught Maciulla firearms identification and because Klees had a 

favorable reputation in their scientific community. (Id. at 9:24-10:5). Plaintiff 

obtained a copy of Klees' report (and all supporting documentation) from ATF and 

disclosed it on September 12, 2017. He was not deposed.

II. Disclosure of Haag, Murdock & Klees (Docs 335 and 336)

A. Rule 26(a)(2) Compliance

The Plaintiff timely disclosed the identities of Haag, Murdock, and Klees, the 

subject of their testimony, and all of their supporting documentation. Since the 
-4-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff did not retain these witnesses as experts for this case, written reports were

not required. But each has produced a written report, all of which have been 

disclosed, thereby satisfying the Plaintiff's requirement of providing a summary of

their opinions under Rule 26(a)(2)(C). Also, the opinions of Haag and Murdock 

were further testified to in depositions, which the Court ordered would be treated as 

part of expert disclosure. (See Doc 45, p 3 lines 17-19). The Plaintiff's disclosures of 

Haag, Murdock and Klees comply with Rule 26(2)(C) and substantially comply, if 

necessary, with Rule 26(2)(B).1

B. Harmlessness Under Rule 37(c)(1) and (2)

Even if the Plaintiff improperly characterized the testimony of Haag, 

Murdock, and Klees as non-expert witnesses, any such deficiencies were 

harmless. Plaintiff has not withheld any substantive item of disclosure nor created 

any surprise or prejudice. Plaintiff readily acknowledges that he must prove 

harmlessness under Rule 37. Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 

1101, 1107 (9th Cir. 2001). Indeed, there is no prejudice or surprise because the

Defendant deposed Haag and Murdock, exploring all of their opinions. With this 

knowledge, it also has disclosed rebuttal experts on the subjects of ballistics,

shooting reconstruction, and tire deflation. Because Haag and Murdock were 

already disclosed as witnesses, no disruption to trial would occur. Finally, Plaintiff 

1 Notably, this Court permitted Defendant's expert, Dr. Philip Lett, to testify over 

Plaintiff's objection, even though his report was not technically compliant with 

Rule 26(a)(2)(B)'s requirement regarding prior testimony, given that all 

supporting aspects of his qualifications and opinion were borne out 

elsewhere. (See Doc. 367). 
-5-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

has acted in good faith and has never engaged in any abusive or dilatory litigation 

practices, and there is no evidence to the contrary. The Court should find that Rule 

26(a)(2)(c) has been satisfied or that any non-compliant aspect of disclosure is 

harmless under Rule 37.

III. Reports–Hearsay Considerations–Rule 801(d)(2)

1. The Haag and Murdock Reports.

The Plaintiff intends to use the Haag and Murdock reports for impeachment 

to dispute the Defendant's claim to have made a scientific ballistic identification or

to have followed reasonable crime lab procedures and quality assurance 

programs. The reports are also admissible under Rule 703 for the limited purpose 

of explaining the basis for Todd Weller's opinion about the inadequacies of the DPS 

quality assurance programs.

2. The Klees Report is Admissible

The Klees report is admissible as non-hearsay for three reasons. First, Fed. R. 

Evid. 803(6) establishes a hearsay exception for regularly kept "business" 

records. The report was produced because DPS crime lab policy implements a 

quality assurance program, under which they hired Klees to review the evidence 

independently. The report dated April 29, 2016, was written within one day of Klees’ 

receiving the evidence from DPS Sgt. Tony Mapp. The DPS policy evidences its 

regular business activity to conduct quality inquiries. See e.g. Berry v. City and 

County of San Francisco, 2018 WL 5629293 *4 (the CHP process of investigating 
-6-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

under particular circumstances confirms the report is a regularly-conducted 

activity). A ballistic examiner of evidence is required under the professional 

standards to create a written report. (See Exhibit 6, at p. 8, § 1.4). The production 

of the Klees report, which was based on his review of the ballistic evidence, was 

required under the DPS program. The Klees report was not produced in 

anticipation of litigation. The DPS trusted both Klees and his methodology, and 

knew him to be a trustworthy examiner. 

Second, the report is admissible under the public record exception. Fed. R. 

Evid. 803(8). The report sets out factual findings of a legally-authorized 

investigation sought by DPS as part of its QA program. The State accepted the 

report, according to Maciulla, and cannot show the report lacks of trustworthiness.

See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S. Ct. 439, 102 L. Ed. 2d 445 

(1988) (both facts and conclusions are admissible). 

Third, the report is admissible as non-hearsay under FRE 801 (d)(2)(B) and 

(C), as a statement of an agent of a party opponent that the State "adopted or 

believed to be true" and "was made by a person whom the party authorized to make 

a statement on the subject." Klees was an agent of DPS, fulfilling their obligation

under the QA program. DPS criminalist Maciulla "accept[ed] the findings of Klees 

(and the ATF) as an impartial party" and that ATF was not wrong. (Exhibit 4 

(Maciulla Vol 1) at 123:18-124:8). The report of Klees is therefore admissible under 

801(d)(2)(B) and (C).
-7-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IV. Opinions of DPS Criminalists (Doc 290)

Defendants seek to elicit testimony that Maciulla, Peloza, and Brudenell all 

found an identification between the evidence bullets and Plaintiff’s gun, yet 

Defendant has not designated these individuals as experts, nor has it ever disclosed 

a single piece of documentation authored by these individuals memorializing their 

opinions or any other materials required under Rule 26(a)(2)(b)(i-iv). (See Doc. 290 

at 2:14-21). While Maciulla was designated as a rebuttal expert by the Defendant, he 

only opined that DPS followed all policies and procedures in this case in response 

to Todd Weller’s opinion that it did not. (See Exhibit 7). He offered no opinions 

whatsoever about his examination of the evidence bullets. Id. 

The failure to disclose documents that lies at the core of any expert’s opinion 

could not more blatantly violate the rules concerning disclosure of experts, but it 

also, ipso fact deprives the Court from even attempting to make an admissibility 

determination given the absence of any foundation in the record. Moreover, the 

opinions at issue are also inadmissible because they violate the Court’s standing 

order that the parties may call only one expert per issue (See Doc 45 at ❡5(g)), 

thereby making them cumulative.

Arguendo, even if the opinions are not cumulative, the testimony of other 

criminalists besides Kalkowski on the issue of identification is prejudicial under 

Rule 37 given Defendant’s lack of disclosure. Allowing them to testify would 

necessitate the re-opening of discovery so that Plaintiff could depose the witnesses 

and then, possibly, have his experts rebut any testimony. It would undoubtedly 
-8-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

delay trial and result in the expenditure of significant additional time and costs for 

both parties.

V. CONCLUSION

The Plaintiff requests an Order granting Plaintiff's Motion in Limine #1 (Doc 

290) and denying the Defendant's Motions in Limine at Docs 335, 336.

DATED THIS 28th day of August 2020.

LAW OFFICE OF JASON LAMM

By: /s/ Jason D. Lamm

Jason D. Lamm

Attorney for Plaintiff Leslie Merritt, Jr.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/ David J. Don

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.
-9-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I 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:

Edward F. Novak, Esq.

Melissa Ho, Esq.

Jonathan G. Brinson, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

enovak@polsinelli.com; mho@polsinelli.com, jbrinson@polsinelli.com

Attorneys for Defendant State of Arizona, Heston Silbert, Christopher Kalkowski, 

Frank Milstead, Ken Hunter, Kelly M. Heape, Jennifer Pinnow, Anthony Falcone

By: /s/ Kathryn Miller

Kathryn Miller