Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:00-cv-00052-RNC

Document 136

Filed 06/23/2005

Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT MARGARET COWAN, ADMINISTRATRIX OF THE ESTATE OF VICTORIA COOPER v. MICHAEL BREEN : : : : : : :

NO.: 3:00 CV 0052 (RNC)

MARGARET COWAN, ADMINISTRATRIX OF THE ESTATE OF VICTORIA COOPER v. NORTH BRANFORD

: : : : : : :

NO.: 3:01 CV 0229 (RNC)

JUNE 23, 2005

REPLY TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION IN LIMINE RE LIVE OR DEPOSITION TESTIMONY OF DR. MANNING AND DR. EBERHARDT I. BACKGROUND. The defendants respond to plaintiff's opposition to Defendants' motion in limine re: Live or Deposition Testimony of Dr. Manning and Dr. Eberhardt as follows: Drs. Manning and Eberhardt were never disclosed as having an opinion as to the horizontal angle of the first bullet. (Manning Report, attached hereto as exhibit A). The Manning report makes no mention of a horizontal angle except to note that it was much narrower that the Connecticut State Police measurement. This refers to the 39 degree measurement which was in the state police investigation and which all parties agree was grossly inaccurate. The purpose of his report was to address the Connecticut State Police 39 degree assessment, which was grossly inaccurate, as all parties agree.

Case 3:00-cv-00052-RNC

Document 136

Filed 06/23/2005

Page 2 of 3

Mr. Schwendy does not rely on Dr. Manning's 13 degree angle. Mr. Schwendy testified at the Daubert hearing that the only spot to fire into the hood that is reliable is the exact same spot on the hood, or the same spot on the apposite side of the hood. Plaintiff argues that Manning will be needed to corroborate the time needed to squeeze the trigger. (Plaintiff's brief at p. 3). Defendants have already stipulated this time is .25 seconds. Mr. Schwendy testified at his deposition that he does not know what methodology Dr. Manning used. Schwendy deposition at pp. 239-43, attached hereto as Exhibit B. Furthermore, Manning's testimony was the angle was 12-13 degrees. This is hardly corroborative of Schwendy's 15.5 degree angle. If Schwendy doesn't know what method Manning used, plaintiff's can hardly claim that Manning corroborates Schwendy's results. Furthermore, Manning did not testify regarding the reliability of whether the vertical angle could be measured, to a reasonable degree of scientific certainty, and thus this is inadmissible. It was only an observation based upon his limited testing and Manning never included this observation in his report. (See Manning Report, Exhibit A) THE DEFENDANTS, MICHAEL BREEN and TOWN OF NORTH BRANFORD ____/s/ Jeffrey E. Potter_______ Jeffery E. Potter, ct26356 HOWD & LUDORF 65 Wethersfield Avenue Hartford, CT 06114 (860) 249-1361 (860) 249-7665 (fax)

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Case 3:00-cv-00052-RNC

Document 136

Filed 06/23/2005

Page 3 of 3

CERTIFICATION This is to certify that a copy of the foregoing has been sent, handling charges prepaid, via U.S. Mail to the following counsel of record this 23rd day of June 2005. David N. Rosen, Esquire 400 Orange Street New Haven, CT 06511

____/s/ Jeffrey E. Potter_______ Jeffery E. Potter

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