This lawsuit arose out of the death of Vincent McKinney on April 15, 2021, at a U-Haul construction site. Plaintiff disclosed Wayne K. Ross, M.D., P.C., a forensic pathologist as an expert witness. Plaintiff retained Ross “to determine the cause and manner of death and to assess for conscious pain and suffering.”
Defendant filed a motion to exclude the testimony of Ross. First, it requested that the Court exclude Ross’ statements about accident causation “because [they are] irrelevant to the opinions Ross was retained to provide.” “Alternatively,” Defendant argued, “the Court should exclude those statements and testimony because Ross is unqualified to give such opinions” “To the extent Ross attempts to rely upon Plaintiff’s engineering expert’s report to form the basis of his accident causation analysis,” Defendant submitted that “Ross failed to disclose that report as material he relied upon.”
Moreover, Defendant stated that “Ross’ fourth and fifth conclusions contain impermissible legal conclusions and state of mind opinions on the alleged subjective feelings and experiences of McKinney.”
Forensic Pathology Expert Witness
Wayne Kenneth Ross, M.D., P.C. is board-certified by both the National Board of Medical Examiners and the American Board of Pathology in Anatomic and Forensic Pathology. He maintains current medical licensure in
Pennsylvania and has practiced continuously as a forensic pathologist for over three decades.
Throughout his career, he has conducted thousands of autopsies and
death investigations involving traumatic injuries, gunshot wounds, blunt force trauma, and other violent deaths where assessing consciousness and pain perception at the time of injury is critical.
Discussion by the Court
A. The Cause of the Accident
Defendant argued that “Ross’ report included specific statements and testimony regarding the cause of the accident [that] the Court should exclude because it is irrelevant to the opinions Ross was retained to provide.”
Ross stated:
“A forklift being operated by Curtis Kennedy was positioning in the forklift on the passenger’s side just prior to the incident. The forks on the forklift were maneuvered under the three (3) passenger side bundles just prior to the incident. The passenger side load was lifted upward but the forks extended too far laterally such that the tips of the forks caught the undersurface of the lower driver’s side load. Thus, as the passenger’s side load was being lifted, the driver’s side load was lifted as well.
The lifting of the dual load was unstable because the forks were not positioned completely under the driver’s side load, so as a result, the driver’s side load rolled off the truck bed, off of the driver’s side.”
Plaintiff did not dispute that Ross is not qualified to render an opinion on the cause of the accident. And Plaintiff stated that Ross is not providing an opinion on the cause of the accident; rather, Plaintiff stated that he is simply “giving context for his own opinions regarding McKinney’s injuries and cause of death.”
But Plaintiff did not explain how this context is relevant to Ross’ opinions. Plaintiff retained Ross “to determine the cause and manner of death and to assess for conscious pain and suffering.” How the bundles fell from the trailer or who caused the bundles to fall are not relevant inquiries to Ross’ analysis of these matters. The Court therefore excluded this portion of Ross’ opinion.
B. Legal Conclusions and State of Mind Testimony
Defendant argued that “Ross’ fourth and fifth conclusions contain impermissible legal conclusions and state of mind opinions on the alleged subjective feelings and experiences of McKinney.” In addition, the fifth conclusion, Defendant stated “contains opinions that go beyond an attempt to detail McKinney’s state of mind but acts as an attempt to enflame the jury with verbose and extreme language and should also be excluded under Rule 403 as well.” It argued that “whether or not McKinney ultimately was conscious and experienced any pain and suffering, is a question of fact for the jury to decide.”
Here, Ross stated that “to a reasonable degree of medical probability or more likely than not” McKinney experienced conscious pain and suffering, and he details such pain. Plaintiff described this testimony as an “analysis of consciousness duration and probable sensory experience.” She later stated that he “uses established scientific methodology to explain, to a reasonable degree of medical certainty, what sensations a person in McKinney’s condition would likely experience in the seconds after the incident.” Defendant did not dispute that this would be proper testimony. And when reading Ross’ full expert report, it did not appear that Ross intended to “unequivocally opine [on] what McKinney was feeling” at trial. To the extent Ross renders such opinions, the Court will exclude him from doing so at trial; however, he was allowed to testify about what a person in McKinney’s condition would have experienced.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Dr. Wayne K. Ross.
Key Takeaway:
An expert may not offer an opinion on someone else’s subjective beliefs or feelings. State-of-mind testimony is not helpful because “the jury is sufficiently capable of drawing its own inferences regarding intent, motive, or state of mind from the evidence, and permitting expert testimony on this subject would be merely substituting the expert’s judgment for the jury’s and would not be helpful to the jury.” However, in this case, it did not appear that Ross intended to “unequivocally opine [on] what McKinney was feeling” at trial.
Case Details:
| Case Caption: | Perry V. Jenkins & Stiles, LLC |
| Docket Number: | 3:21cv414 |
| Court Name: | United States District Court, Tennessee Eastern |
| Order Date: | October 17, 2025 |
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