Flanks v. City of New Orleans et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RAYMOND FLANKS
VERSUS
THE CITY OF NEW ORLEANS et al.
CIVIL ACTION
NO. 23-6897
SECTION: “G”(4)
ORDER AND REASONS
This litigation arises from Plaintiff Raymond Flanks’s (“Plaintiff”) wrongful conviction
for first-degree murder in 1985. Plaintiff names as Defendants the City of New Orleans; Jason
Williams, in his official capacity as Orleans Parish District Attorney; and John Dillmann, in his
individual capacity.1 Plaintiff alleges the Orleans Parish District Attorney’s Office (“OPDA”)
secured his wrongful conviction in violation of his constitutional rights by withholding material
exculpatory evidence in violation of OPDA’s obligations under Brady v. Maryland.2
Before the Court is Plaintiff’s Motion to Exclude Expert Testimony of Dr. Tumulesh
Solanky (“Solanky”).3 Solanky is a statistician retained by Defendant Jason Williams (“Williams”)
to conduct a scientific analysis of the alleged Brady violations reported by Plaintiff’s expert
Professor Laurie Levenson (“Levenson”) and “to assess the reasonable conclusions that can be
drawn regarding the frequency of such cases in Orleans Parish.”4 Plaintiff argues that Solanky’s
proposed testimony should be excluded because: (1) the ratio of Brady violations listed in
1 See Rec. Doc. 27. The Court dismissed Plaintiff’s claims against Anne Kirkpatrick and John/Jane Does #1-
20.
2 Id. at 4–5. See Brady v. Maryland, 373 U.S. 83 (1963).
3 Rec. Doc. 94.
4 Rec. Doc. 94-2 at 3.
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Levenson’s report to overall OPDA prosecution data is not an issue the jury will need to decide;
(2) even if it were, a jury would not need expert opinion testimony to compare those numbers; (3)
Solanky employs an unreliable methodology; (4) Solanky excludes certain cases, skewing the
results; (5) Solanky has no data whatsoever to which he compares the numbers in New Orleans;
and (6) his opinions are far outside the scope of his expertise as a statistician.5 Williams opposes
the motion.6 Having considered the motion, the memoranda in support and opposition, the record,
and the applicable law, the Court grants the motion in part and denies it in part. If the parties are
unable to reach a stipulation on the average number of cases prosecuted and tried each year by
OPDA, Solanky may testify to his use of the linear regression model to extrapolate this data.
Solanky may not testify regarding any of the other opinions listed in his report.
I. Background
On November 16, 2023, Plaintiff filed a Complaint against Defendants in this Court for
alleged violations of his constitutional rights under 42 U.S.C. § 1983 and alleged violations of state
law.7 On June 4, 2024, Plaintiff filed an Amended Complaint.8 This matter is set for trial on
December 8, 2025. This case is related to Plaintiff’s alleged wrongful conviction in May 1985 for
the first-degree murder of Martin Carnesi.
In May 1985, a jury found Plaintiff guilty of first-degree murder in the death of Martin
Carnesi, and Plaintiff was sentenced to life in prison.9 Nearly 37 years later, on November 17,
5 Id.
6 Rec. Doc. 104.
7 Rec. Doc. 1.
8 Rec. Doc. 27.
9 Rec. Doc. 27 at 12–13.
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2022, Plaintiff’s first-degree murder conviction was vacated.10 At the November 17, 2022
exoneration hearing, the “OPDA stated that ‘the State agrees that Mr. Flank’s [sic] conviction was
obtained in violation of Brady v. Maryland’ because ‘the State failed to disclose … materials [that]
are favorable, and under circumstances of the State’s case against Mr. Flank[s], material.’”11
Solanky is a statistician retained by Williams to conduct a scientific analysis of the alleged
Brady violations reported by Plaintiff’s expert Levenson and “to assess the reasonable conclusions
that can be drawn regarding the frequency of such cases in Orleans Parish.”12 Solanky undertook
two basic analyses. First, Solanky reviewed OPDA annual reports providing information about the
numbers of cases screened, accepted, and tried over a period of 12 to 15 years.13 Solanky found
that the average number of cases accepted for prosecution by OPDA annually was approximately
7,084.14 Extrapolating from the available data, Solanky found that between 1974 and 1985, there
were approximately 522 trials and 5,175 guilty pleas on average each year.15 Thus, the total
average number of combined trials and guilty pleas per year was approximately 5,698.16
Second, Solanky compared the Brady violations documented in Levenson’s report to the
total conviction data. Solanky concluded:
1. Alleged Brady violations are exceptionally rare when compared to the number of
trials, the number of trial convictions, and total number of trials and pleas. This
holds true across all three examined time intervals: 1974–1985, 1974–2003, and the
entire period cited by Professor Levenson (1967–2013). For all comparisons and
all time periods, the rate of alleged Brady violations is less than one percent.
10 Id. at 14.
11 Id.
12 Rec. Doc. 94-2 at 3.
13 Id. at 2–5.
14 Id. at 6.
15 Id. at 11.
16 Id.
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2. The incidence of Brady violations allegedly found by courts before Raymond
Flanks’s conviction in 1985 is even rarer when compared to the number of trials,
the number of trial convictions, and total number of trials and pleas over the time
interval when those cases were tried (1967–1980). Specifically, these alleged Brady
violations amount to approximately one out of 9,950 trials or pleas; approximately
one out of 894 trials; and approximately one out of 647 trial convictions.
3. A significant percentage of years recorded zero alleged Brady violations, further
emphasizing the infrequency of such cases. Notably, 31.9% of the years in the
dataset—nearly one out of every three—had no alleged Brady violation cases.
4. The alleged Brady findings, as reported in Professor Levenson’s expert report, are
exceedingly rare and very infrequent. A review of the available data does not
support the conclusion that Brady violations were caused by widespread,
systematic factors at OPDA.17
On October 28, 2025, Plaintiff filed the instant Motion to Exclude Expert Testimony of Dr.
Tumulesh Solanky.18 On November 4, 2025, Williams filed an opposition to the motion.19 On
November 7, 2025, Plaintiff filed a reply brief in further support of the motion.20
II. Parties’ Arguments
A. Plaintiff’s Arguments in Support of the Motion
Plaintiff moves the Court to exclude Solanky as a witness.21 Plaintiff argues that Solanky’s
proposed testimony should be excluded because: (1) the ratio of Brady violations listed in
Levenson’s report to overall OPDA prosecution data is not an issue the jury will need to decide;
(2) even if it were, a jury would not need expert opinion testimony to compare those numbers; (3)
Solanky employs an unreliable methodology; (4) Solanky excludes certain cases, skewing the
17 Id. at 17.
18 Rec. Doc. 97.
19 Rec. Doc. 104.
20 Rec. Doc. 109.
21 Rec. Doc. 97.
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results; (5) Solanky has no data whatsoever to which he compares the numbers in New Orleans;
and (6) his opinions are far outside the scope of his expertise as a statistician.22
First, Plaintiff argues that Solanky’s opinions are not relevant because the ratio of Brady
violations listed in Levenson’s report to overall OPDA prosecution data is not an issue the jury
will need to decide.23 Plaintiff contends the only arguable relevance to Solanky’s opinions pertains
to whether former OPDA Harry Connick (“Connick”) was deliberately indifferent to Brady
violations.24 Nevertheless, Plaintiff submits that Solanky’s opinions are not relevant to that issue
because they do not say anything meaningful about the extent of Brady violations under Connick.25
Plaintiff submits that the fact there was a small proportion of documented Brady violations does
not necessarily imply that Brady violations were not widespread—only that such violations are
rarely searched for, discovered, litigated, adjudicated.26
Second, even if the proportions are relevant, Plaintiff submits a jury would not need expert
opinion testimony to compare those numbers.27 Plaintiff asserts a jury is readily capable of
comparing the number of Brady violations Levenson was able to document in her report to overall
OPDA prosecution data and draw its own conclusion.28 Plaintiff contends that the jury does not
22 Id.
23 Rec. Doc. 94-1 at 8.
24 Id. at 9.
25 Id.
26 Id.
27 Id. at 11.
28 Id.
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need to calculate the confidence interval numbers, especially considering they are so small that
simple division provides a relatively precise estimate.29
Third, Plaintiff contends that Solanky employs an unreliable methodology.30 Plaintiff
argues that Solanky uses the wrong “numerator” by relying only on the Brady violations Levenson
documents in her report, which Plaintiff asserts Solanky improperly assumes was the total number
of Brady violations that occurred in Orleans Parish.31 Additionally, Plaintiff argues that Solanky
uses the wrong “denominator” by relying on the total number of prosecutions, rather than an
appropriate subset of those data such as cases in which a criminal defendant took an appeal or
initiated post-conviction proceedings.32
Fourth, Plaintiff asserts that Solanky excludes certain cases, skewing the results.33 Plaintiff
points out that a portion of the report removes Brady violations that occurred before his trial 1985
but were not documented until later.34 Plaintiff asserts this is inconsistent with the Court’s ruling
on Williams’s motion to dismiss.35
29 Id. at 12.
30 Id. at 13.
31 Id. at 13–14.
32 Id. at 14–15.
33 Id. at 16.
34 Id.
35 Id. at 17.
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Fifth, Plaintiff contends Solanky has no data whatsoever to which he compares the numbers
in New Orleans.36 Sixth, Plaintiff also argues that Solanky’s opinions are far outside the scope of
his expertise as a statistician, as he does not have any familiarity with Brady violations.37
B. Williams’s Arguments in Opposition to Motion
Williams contends the purpose of Dr. Solanky’s testimony is clear and straightforward––
if Plaintiff can prove there were Brady violations in Orleans Parish, the jury must be allowed to
consider those numbers in relation to the number of cases prosecuted.38 Responding to Plaintiff’s
first argument that Solanky’s opinions are irrelevant, Williams contends Solanky presents exactly
the type of statistics and comparisons that the Fifth Circuit expects in municipal liability cases.39
Relying on two Monell cases involving alleged patterns of excessive force incidents by police,
Williams asserts “in both cases, the Fifth Circuit explained that these numbers should be
considered in relation to numbers such as the size of the police department and the total number
of arrests.”40
Addressing Plaintiff’s second argument that the jury could calculate the ratios without
expert assistance, Williams contends that expert testimony is essential to explain the use of linear
regression to extrapolate data for missing years, calculation of proportions for various figures in
various date ranges, and calculation of confidence intervals.41 Williams asserts that an expert will
36 Id. at 17–20.
37 Id.
38 Rec. Doc. 104 at 3.
39 Id. at 4.
40 Id. at 4–5 (citing Verastique v. City of Dallas, 106 F.4th 427 (5th Cir. 2024); Peterson v. City of Fort
Worth, 588 F.3d 838, 852 (5th Cir. 2009)).
41 Id. at 6.
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simplify these issues.42 Williams argues that Plaintiff’s complaints regarding Solanky’s analysis
being too precise do not provide a basis for exclusion.43
Responding to Plaintiff’s third argument, Williams also contends that Solanky
appropriately did not attempt to estimate numbers of speculative Brady violations.44 Williams
submits that Plaintiff cannot prove there were numerous unreported Brady violations, and even if
he could, such proof would be meaningless absent evidence that Mr. Connick was aware of them.45
Williams also asserts that Solanky properly compared the numbers of alleged Brady violations to
various statistics: (1) total annual number of combined trials and guilty pleas; (2) total annual
number of trials; and (3) total annual number of trial convictions.46
Next, Williams addresses Plaintiff’s fourth argument that Solanky improperly failed to
address Brady violations that occurred before his trial 1985 but were not documented until later.47
Even if Plaintiff believes that Brady decisions rendered after his conviction are relevant, Williams
submits it is certainly not irrelevant, or otherwise inappropriate, for OPDA to highlight the number
of Brady decisions before Plaintiff’s conviction and compare that number to total prosecution
statistics.48
Responding to Plaintiff’s fifth argument that Solanky should have compared the data to
other jurisdictions, Williams suggests that such a comparison would be irrelevant and
42 Id.
43 Id.
44 Id.
45 Id. at 7.
46 Id. at 8.
47 Id.
48 Id. at 9.
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inappropriate.49 Finally, addressing sixth argument that Solanky does not have any familiarity with
Brady violations, Williams asserts that Solanky is not claiming to speak as a Brady expert.50
C. Plaintiff’s Arguments in Further Support of the Motion
In reply, Plaintiff contends Solanky’s opinions lack a valid point of comparison.51 Plaintiff
suggests that information about other jurisdictions would be necessary for the jury to determine
whether Brady violations were rare, as Solanky’s opinion suggests.52 Plaintiff cites a Fifth Circuit
case that criticized a plaintiff for failing to present evidence to show “the number of complaints
filed against [the city’s] officers is high relative to other metropolitan police departments.”53
Plaintiff repeats his prior argument that Solanky’s opinions are sweeping and are beyond
his expertise.54 Plaintiff asserts that Williams misapplies precedent to argue Solanky’s testimony
is essential.55 Plaintiff contends that the cases Williams relied on are distinguishable, because use
of force claims are very different from Brady claims.56 Plaintiff then repeats his argument that
Solanky uses the wrong denominator.57
Plaintiff suggests that Solanky cannot defend his conclusions as he did not provide even a
ballpark estimate of the point at which the frequency of Brady violations become “not rare”
49 Id. at 11.
50 Id.
51 Rec. Doc. 109 at 4.
52 Id.
53 Id. (quoting Hinojosa v. Butler, 547 F.3d 285, 296 (5th Cir. 2008)).
54 Id. at 4–5.
55 Id. at 5.
56 Id.
57 Id. at 6–7.
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opposed to “rare.”58 Plaintiff asserts Williams takes inconsistent positions by claiming that the
statistics are complex, while also arguing that it is “obvious” there is not a pattern.59 Finally,
Plaintiff asserts that Williams failed to adequately address Plaintiff’s argument that the probative
value of Solanky’s testimony is substantially outweighed by a danger of confusing the issues and
misleading the jury.60
III. Legal Standard
The district court has considerable discretion to admit or exclude expert testimony under
Federal Rule of Evidence 702.61 Rule 702 states that a witness “qualified as an expert by
knowledge, skill, experience, training, or education,” may provide expert testimony when
“scientific, technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.”62 For the testimony to be admissible, Rule 702 establishes
the following requirements:
(1) the testimony must be based upon sufficient facts or data,
(2) the testimony must be the product of reliable principles and methods, and
(3) the expert must reliably apply the principles and methods to the facts of the case.63
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court explained that Rule
702 requires the district court to act as a “gatekeeper” to ensure that “any and all scientific
58 Id. at 7.
59 Id. at 8–9.
60 Id. at 10–11.
61 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d
358, 371 (5th Cir. 2000).
62 Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
63 Fed. R. Evid. 702.
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testimony or evidence admitted is not only relevant, but reliable.”64 The court’s gatekeeping
function mostly involves a two-part inquiry.
First, the court must determine whether the expert testimony is reliable, which requires an
assessment of whether the expert testimony’s underlying reasoning or methodology is valid.65 The
court’s inquiry into the reliability of expert testimony is flexible and fact-specific.66 The aim is to
exclude expert testimony based merely on subjective belief or unsupported speculation.67 In
analyzing reliability, Daubert instructs courts to consider (1) whether the theory has been tested;
(2) whether the theory has been subject to peer review and publication; (3) any evaluation of known
rates of error; (4) whether standards and controls exist and have been maintained with respect to
the technique; and (5) general acceptance within the scientific community.68
Second, the court must determine whether the expert’s reasoning or methodology “fits” the
facts of the case and whether it will assist the trier of fact in understanding the evidence.69 The
second inquiry primarily analyzes whether the expert testimony is relevant.70
64 Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (clarifying that
the court’s gatekeeping function applies to all forms of expert testimony).
65 See Daubert, 509 U.S. at 589. The party offering the testimony has the burden to establish reliability by a
preponderance of the evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (citing In re Paoli
R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994)).
66 Seatrax, 200 F.3d at 372.
67 See Daubert, 509 U.S. at 590.
68 Id. at 592–94. In Kumho Tire, the Supreme Court emphasized that the test of reliability is “flexible” and
that Daubert’s list of specific factors does not necessarily nor exclusively apply to every expert in every case. Kumho
Tire, 526 U.S. at 141. The overarching goal “is to make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Id. at 152.
69 See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.
70 See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.
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Yet a court’s role as a gatekeeper does not replace the traditional adversary system.71 A
“review of the caselaw after Daubert shows that the rejection of expert testimony is the exception
rather than the rule.”72 “Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.”73 “As a general rule, questions relating to the bases and sources
of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility
and should be left to the jury’s consideration.”74
Federal Rule of Evidence 704(a) provides that “[a]n opinion is not objectionable just
because it embraces an ultimate issue.”75 “The rule was enacted to change the old view that []
giving an opinion on an ultimate issue would ‘usurp the function’ or ‘invade the province’ of the
jury.”76 The rule, however, “does not open the door to all opinions.”77 Witnesses may not “tell the
jury what result to reach,” nor may they “give legal conclusions.”78 The Fifth Circuit has explained
that “the task of separating impermissible question which call for overbroad or legal responses
from permissible questions is not a facile one,” but one that requires courts to exclude questions
or answers from experts that “would supply the jury with no information other than the expert’s
71 See Daubert, 509 U.S. at 596.
72 Fed. R. Evid. 702 advisory committee’s note, “2000 Amendments.”
73 Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).
74 United States v. 14.38 Acres of Land, More or Less Sit. in Leflore Cnty., 80 F.3d 1074, 1077 (5th Cir. 1996)
(quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)).
75 Fed. R. Evid. 704(a).
76 Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983).
77 Id.
78 Id. (citing United States v. Fogg, 652 F.2d 551, 557 (5th Cir. 1981).
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view of how its verdict should read.”79
IV. Analysis
Plaintiff argues that Solanky’s proposed testimony should be excluded because the ratio of
Brady violations listed in Levenson’s report to overall OPDA prosecution data is not an issue the
jury will need to decide.80 Williams contends Solanky presents exactly the type of statistics and
comparisons that the Fifth Circuit expects in municipal liability cases.81
Williams’s argument is based primarily on the Fifth Circuit’s recent decision in Verastique.
There, the plaintiffs alleged that a Dallas police officer, Roger Rudloff, used excessive force while
arresting them during widespread protests.82 The plaintiffs sought to hold the City of Dallas liable
under Monell, alleging that there were 19 prior complaints of misconduct by Rudloff over 23
years.83 The Fifth Circuit affirmed the district court’s dismissal of the claim on the pleadings,
concluding that the other incidents were “not sufficiently similar, specific, or numerous.”84 The
Fifth Circuit found that the allegations regarding the prior incidents were “devoid of critical factual
enhancement,” including facts that would have elucidated how and why the incidents occurred.85
Even assuming these other incidents were “sufficiently specific and similar,” the Fifth Circuit
79 Id.
80 Rec. Doc. 94-1 at 8–11.
81 Rec. Doc. 104 at 4–5.
82 Verastique, 106 F.4th at 431.
83 Id. at 433.
84 Id. at 434.
85 Id. at 432 (“Plaintiffs, for example, cite five incidents allegedly involving a flashlight or nightstick. Some
are listed incident-by-incident. But all still remain totally devoid of critical facts. What prompted the encounters? Did
the individuals threaten Rudloff with physical harm? Were they attempting to resist arrest?”).
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found they were insufficient as a matter of law to “create a pattern capable of providing
constructive notice” because the incidents occurred over a 23 year time-span:
Given a constant number of incidents, a longer time span yields a lower rate of
violations—militating against constructive notice. Nineteen allegations over the
span of twenty-three years yields a mere annualized incident rate of 0.826. In other
words: Plaintiffs—at most—show that, for over two decades, Rudloff, on average,
received fewer than one accusation of misconduct per year.86
The Fifth Circuit further explained that the complaint failed to provide information “such
as department size and number of arrests” that would “provide the context necessary to evaluate
whether an alleged department-wide pattern is so obvious as to impart constructive notice.”87 The
Fifth Circuit reasoned that “[g]iven a constant number of incidents, the percentage of conduct
supporting a pattern of illegality shrinks as the size of the police department or the number of
arrests increases.”88 “Given the department’s size [3,200 officers], and absent any evidence of its
total number of arrests during the same time period,” the Fifth Circuit stated “only one conclusion
can reasonably follow: Nineteen incidents over twenty-three years does not support any inference
of a department-wide pattern of illegality.”89
This Court thoroughly considered Verastique and other Fifth Circuit precedent in ruling on
Williams’s motion for summary judgment. The Court found that the Fifth Circuit cases suggest
that the mere number of incidents must be viewed in context of the type and frequency of the
disputed conduct. Plaintiff correctly points out that Brady claims are distinguishable from
excessive force claims, because Brady claims necessarily involve concealed action (or inaction)
86 Id. at 434.
87 Id.
88 Id.
89 Id.
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on the part of the State for which there may be no documentation at all. Given that Brady violations
are less common than police uses of force, the Court concluded that Verastique did not compel the
conclusion that there is insufficient evidence in this case to establish a de facto custom of Brady
violations.
The Court found the comparison of cases where Brady violations are adjudicated following
trial to cases that resolved in a guilty plea unpersuasive. Because generally “a guilty plea precludes
the defendant from asserting a Brady violation,”90 the Court found it was unlikely that any Brady
violation would ever come to light in the cases OPDA resolved through guilty pleas. The Court
agreed with Plaintiff that a more appropriate denominator would be the number of cases with an
appeal or post-conviction proceeding. Solanky’s report does not provide any data on that issue.
Nevertheless, this does not mean that the statistics provided by Solanky are irrelevant. It is
ultimately Plaintiff’s burden to “provide the context necessary to evaluate whether an alleged
department-wide pattern is so obvious as to impart constructive notice.”91 Plaintiff intends to argue
there was a sufficient number of Brady violations to put Connick on notice of a pattern, while
Williams plans to argue there was not a sufficient pattern given the number of cases prosecuted by
OPDA each year.
Solanky reviewed OPDA annual reports providing information about the numbers of cases
screened, accepted, and tried over a period of 12 to 15 years.92 Solanky used the linear regression
90 United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009). See also Alvarez v. City of Brownsville, 904
F.3d 382, 394 (5th Cir. 2018) (“[C]ase law from the Supreme Court, this circuit, and other circuits does not
affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea
bargaining process. The en banc court will not disturb this circuit’s settled precedent and abstains from expanding the
Brady right to the pretrial plea bargaining context for Alvarez.”).
91 Verastique, 106 F.4th at 434.
92 Rec. Doc. 94-2 at 2–5.
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model to extrapolate data for missing years. Extrapolating from the available data, Solanky found
that between 1974 and 1985, there were approximately 522 trials and 5,175 guilty pleas on average
each year.93 Thus, the total average number of combined trials and guilty pleas per year was
approximately 5,698.94 This information is relevant to Williams’s defense strategy that the number
of Brady violations were not significant, when compared to the number of cases prosecuted and
tried each year. This statistical analysis is beyond the purview of an average juror. If the parties
are unable to reach a stipulation on the average number of cases prosecuted and tried each year by
OPDA, Solanky may testify to his use of the linear regression model to extrapolate this data.
The Court finds that the other opinions offered by Solanky must be excluded. Specifically,
Solanky opines:
1. Alleged Brady violations are exceptionally rare when compared to the number of
trials, the number of trial convictions, and total number of trials and pleas. This
holds true across all three examined time intervals: 1974–1985, 1974–2003, and the
entire period cited by Professor Levenson (1967–2013). For all comparisons and
all time periods, the rate of alleged Brady violations is less than one percent.
2. The incidence of Brady violations allegedly found by courts before Raymond
Flanks’s conviction in 1985 is even rarer when compared to the number of trials,
the number of trial convictions, and total number of trials and pleas over the time
interval when those cases were tried (1967–1980). Specifically, these alleged Brady
violations amount to approximately one out of 9,950 trials or pleas; approximately
one out of 894 trials; and approximately one out of 647 trial convictions.
3. A significant percentage of years recorded zero alleged Brady violations, further
emphasizing the infrequency of such cases. Notably, 31.9% of the years in the
dataset—nearly one out of every three—had no alleged Brady violation cases.
4. The alleged Brady findings, as reported in Professor Levenson’s expert report, are
exceedingly rare and very infrequent. A review of the available data does not
support the conclusion that Brady violations were caused by widespread,
systematic factors at OPDA.95
93 Id. at 11.
94 Id.
95 Rec. Doc. 94-2 at 17.
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As the Court noted in the Order denying Williams’s motion for summary judgment, OPDA
does not cite any caselaw to show this type of granular statistical analysis is required. The jury can
easily compare the total number of cases tried each year with the number of Brady violations to
determine whether the “alleged department-wide pattern is so obvious as to impart constructive
notice.”96 The jury does not need an expert to tell them that the percentages are not large. Solanky’s
opinions that Brady violations were “exceptionally rare” or “exceedingly rare and very infrequent”
are nothing more than argument. Allowing Solanky to testify to these issues would supplant the
role of counsel in making argument at trial and the role of the jury in interpreting the evidence.97
Solanky’s assertions that Brady violations were “exceptionally rare” will not assist the jury in
understanding the evidence or determining a fact in issue.98 Therefore, this proposed testimony
must be excluded.
96 Verastique, 106 F.4th at 434.
97 See Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992) (quoting In re Air Crash Disaster at New
Orleans, 795 F.2d 1230, 1233 (5th Cir. 1986)) (“Stated more directly, the trial judge ought to insist that a proffered
expert bring to the jury more than the lawyers can offer in argument.”).
98 See Fed. R. Evid. 702(a).
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V. Conclusion
For the reasons stated above,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Exclude Expert Testimony of Dr.
Tumulesh Solanky99 is GRANTED IN PART AND DENIED IN PART. If the parties are unable
to reach a stipulation on the average number of cases prosecuted and tried each year by OPDA,
Solanky may testify to his use of the linear regression model to extrapolate this data. Solanky may
not testify regarding any of the other opinions listed in his report.
NEW ORLEANS, LOUISIANA, this ____ day of December, 2025.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
99 Rec. Doc. 94.
29th
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