May 12, 2006 By Jennifer Harr 4 min read

Two doctors who opined that there was a second gunshot fired at 12-year-old Michael Ellerbe have not based their findings on any type of fact, federal court documents filed on Thursday contend. Drs. Werner U. Spitz and Michael M. Baden both submitted expert reports that indicated a grazing wound on Ellerbe’s left arm indicates that one of the two state police troopers chasing him fired a second time.

Those reports were filed on behalf of lawyers for Michael Hickenbottom, Ellerbe’s father. Ellerbe was shot to death as he fled from troopers Samuel Nassan and Juan Curry on Dec. 24, 2002. Ellerbe was driving a stolen car, and when he wrecked, he ran from police. The troopers gave chase, and after believing Ellerbe shot Curry, Nassan returned fire, hitting the boy in the back and killing him.

While Baden indicated that the wound on Ellerbe upper left arm is consistent with a second shot, “he fails to offer this opinion to any degree of medical certainty nor does he proffer any analysis to support this theory,” wrote attorney Andrew K. Fletcher, a member of the law firm that is representing the troopers.

“Moreover, Dr. Spitz’s opinions regarding a second gunshot, like Dr. Baden’s, are not supported by medical evidence or stated with any degree of medical certainty,” Fletcher wrote.

Fletcher’s motion asked federal court Judge Joy Flowers Conti to allow additional time to challenge the expert opinions because the time frame in which to do so has passed. The motion indicated that a recent switch in lawyers delayed the challenge.

Conti will need to decide whether to waive the time requirements and allow the challenge or automatically permit Baden and Spitz to offer expert opinions.

Baden, from New York City, and Spitz, from St. Clair Shores, Mich., are both forensic pathologists. Both agreed with the already-determined opinion that Ellerbe died from a gunshot wound to his back that resulted in internal damage.

Fletcher also asked that Spitz’s “untrustworthy opinion of Michael Ellerbe’s thoughts” be thrown out. In his expert report, Fletcher wrote that Ellerbe “feared for his life as he was running from armed police officers and experienced the terror of impending doom and imminent death once he was shot.”

Fletcher’s motion indicated that court rules do not allow an expert to offer testimony about what another person thought or felt because such a determination is for a jury. He also wrote that the reports were duplicitous.

Fletcher also filed a motion requesting a hearing on the admissibility of expert testimony offered by firearms examiner David E. Balash and law enforcement instructor W. Ken Katsaris.

“(T)heir reports each contain inadmissible opinion testimony challenging both the coroner’s inquest and the Pennsylvania state police investigation, and Mr. Balash offers unsubstantiated speculation about the discharge of the troopers’ weapons,” the motion read.

Fletcher indicated that federal court rules state that experts in civil cases have to explain why and how they came to their conclusions – something he contended the disclosure statements filed by Hickenbottom’s attorneys did not do.

Fletcher also argued that Balash and Katsaris don’t rely on facts or data in forming opinions.

Katsaris wrote that any deliberate shots fired at Ellerbe violated police procedures and training throughout the United States. He also suggested in his report that the shot that came from Curry’s gun was a warning shot to stop Ellerbe.

Testimony at a coroner’s inquest indicated that Curry’s gun accidentally discharged as he scaled a chain link fence to continue chasing Ellerbe. Believing Curry had been shot, Nassan returned fire. His shot hit and killed Ellerbe.

Katsaris’ opinions “are nothing more than an unsubstantiated challenge of the conclusions reached by the coroner’s inquest and the Pennsylvania state police investigation,” Fletcher wrote.

Katsaris’ report violates federal rules because it challenges the credibility of inquest witnesses and those interviewed by the state police “without conducting any independent analysis of facts that would support his conclusions.”

Fletcher contended similar things about Balash’s expert opinion regarding whether the troopers’ properly handled their guns.

The motion also indicated that Balash conducted “extensive tests” on the weapons Nassan and Curry had that day

“The fact that Mr. Balash does not attach these test results to his report, and the fact that he does not compare the results of his tests to the documented facts relating to the shooting, strongly suggest that Mr. Balash’s test results do not help the plaintiff,” Fletcher wrote.

Fletcher indicated that he expects to ask that the case be dismissed, based in part on having the expert reports precluded.