UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT STEVEN A. HYER, Individually and No. 23-15335 as Personal Representative of The Estate of Steven K. Hyer, D.C. No. 1:19-cv-00586- Plaintiff-Appellant, HG-RT and OPINION THERESA L. CHANG; CASSI H. HYER,

Plaintiffs,

v. CITY AND COUNTY OF HONOLULU; PAUL V. NOBRIGA, in his individual capacity; WAYNE SILVA, in his individual capacity; MALO B. TORRES, in his individual capacity,

Defendants-Appellees, and JOHN DOES, 4-10; JANE DOES, 1- 10; DOE CORPORATIONS, 1-10; 2 HYER V. CITY AND COUNTY OF HONOLULU

DOE PARTNERSHIPS, 1-10; DOE UNINCORPORATED ORGANIZATIONS, 1-10,

Defendants.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding

Argued and Submitted February 14, 2024 University of Hawaii Manoa

Filed September 23, 2024 Before: Richard A. Paez, Milan D. Smith, Jr., and Lucy H. Koh, Circuit Judges.

Opinion by Judge Paez HYER V. CITY AND COUNTY OF HONOLULU 3

SUMMARY*

Expert Testimony / Qualified Immunity

The panel reversed in part and affirmed in part the district court’s summary judgment in favor of defendants, the City and County of Honolulu and several officers of the Hawai’i Police Department (“HPD”), in plaintiffs’ action alleging claims of excessive force in violation of the Fourth Amendment, violations of Title II of the Americans with Disabilities Act (“ADA”), and various state law claims arising out of an encounter between HPD and Steven Hyer that resulted in Hyer’s death. The panel held that the district court’s decision to exclude the entirety of plaintiffs’ expert reports was erroneous because (1) to the extent the district court suggested that experts can rely only on evidence in the record, that was a misstatement of law; (2) the district court misapprehended the relevant legal standard and mischaracterized the content of the reports; (3) the district court erred in ruling that the expert reports were speculative and unreliable; and (4) the district court’s conclusory statement that the expert reports attempted to introduce legal conclusions that would usurp the role of the court in instructing the jury did not support exclusion of all three reports in their entirety. The panel did not hold that all three reports should be admitted in their entirety, and rather concluded simply that the district court abused its discretion by excluding all the expert reports in their entirety. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 HYER V. CITY AND COUNTY OF HONOLULU

The panel held that the district court’s decision to exclude the entirety of plaintiffs’ expert reports was also prejudicial because (1) the expert reports help create genuine disputes of material fact over whether the use of deadly force against Hyer was objectively reasonable; (2) the expert reports help create genuine disputes of material fact as to whether the use of chemical munitions was objectively reasonable; (3) the expert reports raise genuine disputes of material fact as to whether the City and County of Honolulu violated Hyer’s rights under the ADA, except that the district court properly granted summary judgment to defendants on plaintiffs’ ADA disparate treatment claim; and (4) with respect to plaintiffs’ state law claims, the expert reports aid in establishing genuine disputes of material fact as to whether defendants are entitled to conditional privilege under state law. Addressing the district court’s grant of qualified immunity to the defendant officers with respect to plaintiffs’ excessive