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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 IN LIMINE (FIFTH) RE: DAWS 

REPORT, OPINIONS, & ATTACHMENTS 
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Plaintiff should be precluded from introducing evidence or argument regarding the 

report of John W. Daws or any opinions or attachments contained therein. Specifically, 

none of Plaintiff’s testifying experts should be permitted to serve as a conduit to bring in 

Daws’ opinions. Daws, an expert retained by Plaintiff to opine on the BMW’s run-flat tire 

and the effect on that tire when struck by a bullet, will not testify in this case. Daws 

unfortunately passed away after issuing his March 2016 report, but before he could be 

deposed and before the close of discovery in this case. Nevertheless, Plaintiff failed to 

obtain another expert qualified to opine on those matters discussed in Daws report. 

“The Federal Rules of Civil Procedure do not permit an expert to rely upon excerpts 

from opinions developed by another expert for the purposes of litigation.” Negrate v. 

Allianz Live Ins. Co. of N.A., 2013 WL 6535164, at *23 (C.D. Cal. Dec. 9, 2013) (internal 

quotation marks and citation omitted). Accordingly, Plaintiff should be precluded from 

boot-strapping any of the opinions rendered by Daws through another expert. “The general 

rule is that the opinion of an expert witness must rest upon the facts, rather than upon the 

opinions, inferences, or conclusions of others.” American Law Reports, Testimony of 

Experts Predicated in Whole or in Part Upon Opinions, Inferences, or Conclusions of 

Others, 98 A.L.R. 1109. More specifically, “one expert may not give the opinion of 

another expert who does not testify.” Tokio Marine & Fire Ins. Co. v. Norfolk & Western 

Ry. Co., 1999 WL 12931 at *4 (4th Cir. 1999) (Table); see also In re Imperial Credit 

Indus., Inc. Sec. Litig., 252 F. Supp.2d 1005, 1012 (C.D. Cal. 2003); American Key Corp. v. 

Cole National Corp., 762 F.2d 1569, 1580 (11th Cir.1985) (“Expert opinions ordinarily 

cannot be based upon the opinions of others whether those opinions are in evidence or 

not”); 6816.5 Acres of Land etc v. United States, 411 F.2d 834, 839-40 (10th Cir. 1969) (on 

retrial, “the trial court must take steps to exclude any expert opinion that is predicated upon 

another opinion”); Taylor v. B. Heller and Co., 364 F.2d 608, 613 (6th Cir.1966) (“expert 

opinion may not be based upon the opinion of others, either in evidence or not in 

evidence”).
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 Accordingly, the State requests the following order: The Parties are precluded from 

arguing or introducing evidence regarding the report of John W. Daws or any opinions or 

attachments contained therein. As part of this order, the Court should preclude Plaintiff’s 

experts from testifying on the same.1 

 RESPECTFULLY SUBMITTED this 27th 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 

 

1 The State has complied with LRCiv. 7.2(l), and certifies that it had a meet and confer in an 

effort to resolve the disputed evidentiary issue.
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CERTIFICATE OF SERVICE 

 I hereby certify that on this 27th 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/ Erika Cano