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  • Psychiatry Expert Witness’ Opinions on the Sufficiency of the County’s Suicide Prevention Policies and Training Admitted

    Psychiatry Expert Witness’ Opinions on the Sufficiency of the County’s Suicide Prevention Policies and Training Admitted

    This case arises from the in-custody death of Joseph Morton (“Morton”) at Vista Detention Facility (“VDF”). Morton was arrested for attempted robbery and booked at VDF on May 11, 2020, one day after release from a 5150 hold. Morton committed suicide six days later, on May 17. Plaintiffs allege medical care claims under 42 U.S.C. § 1983 and state law theories claiming that Morton should have been designated as “high risk” for suicide and placed in a safety cell in Inmate Safety Program (ISP) housing.

    Defendants County of San Diego, Hosanna Alto, and Janine Sparks (“County Defendants”) claimed that they did not violate Morton’s civil rights. Mental health clinicians (MHC) Hosanna Alto and Janine Sparks were accused of being deliberately indifferent to Morton’s suicide risk.

    County Defendants have filed two Daubert motions: they sought to exclude certain opinions offered by Plaintiffs’ experts Dr. Jeffrey Metzner, and Dr. Kaycea Campbell.

    Psychiatry Expert Witness

    Jeffrey Metzner is a licensed medical doctor who has been engaged in clinical and forensic psychology since 1978. From 1980 to 1981, Metzner served as Chief of Psychiatry at Colorado State Penitentiary and he served as a consulting psychiatrist to the National Prison Project and the United States Department of Justice for 30 to 40 years, respectively. He has published numerous newsletters, books, book chapters, and peer reviewed journal articles, including on the topics of mental health and psychiatry in prisons.  Between 1989 and 2022, he served as an expert in 178 cases.

    Get the full story on challenges to Jeffrey Metzner’s expert opinions and testimony with an in-depth Challenge Study. 

    Economics Expert Witness

    Kaycea Campbell is an economist with a Ph.D. from Claremont Graduate University, a Master of Arts in Economics from the University of Southern California, and a Bachelor of Science in Economics from the University of the West Indies. Campbell is a tenured economics professor at Pierce College and is also the Department Chair for a multidisciplinary Political Science, Economics, Administration of Justice, and Chicano Studies unit. She has worked as a professional economic researcher for about twenty (20) years during which time she has published articles on economic analyses associated with loss of income and calculated and researched issues such as the recovery of damages for lost profits, wrongful death, personal injury, and intellectual property damages. She has served as an economics expert in thirteen (13) cases since 2014. 

    Want to know more about the challenges Kaycea Campbell has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Motion to Exclude Metzner’s Opinions

    1. Mental Health Clinician Standard of Care Opinions

    Metzner opined that the care provided to Morton by various mental health and medical professionals at VDF fell below the standard of care. According to County Defendants, although Metzner is a licensed psychiatrist, he has no experience in supervising MHCs in a correctional setting and has not received formal training in the MHC standard of care.

    The Court is not persuaded by this argument. Metzner has some thirty (30) years of experience in correctional psychiatry as well as extensive academic and research experience in correctional psychiatry and mental healthcare. Further, it is noteworthy that Metzner has served as a court-appointed expert in numerous cases. 

    2. Opinions re MHC Alto

    County Defendants challenged Metzner’s specific opinions that MHC Alto: (1) did not obtain records regarding Morton’s recent hospitalization; (2) made the improper assumption that because he was released from the 5150 hold, there was no significant safety risk; and (3) that if MHC Alto had obtained the records from Morton’s recent hospitalization, “they would have figured out he was still suicidal.”

    a. Records from Prior Hospitalization

    Metzner opined that “[i]t was below the standard of correctional mental healthcare to not, at least, attempt to obtain information regarding Morton from the Alvarado Parkway Institute/BHS as part of the gateway assessment process” because “obtaining such information would have demonstrated that Morton was not a reliable historian and that he omitted significant factors leading to his very serious suicide attempt.” 

    The Court is satisfied that Metzner possesses the necessary qualifications and relevant experience to testify that the standard of care for QMHPs performing an ISP assessment would include requesting prior suicide-related hospitalization records.

    b. Improper Assumption

    County Defendants challenged Metzner’s opinion that MHC Alto’s assessment fell below the standard of care because she improperly assumed that following his 5150 hold release, he posed no significant safety risk.

    According to County Defendants, MHC Alto did not rely on any assumptions in completing the ISP assessment, as confirmed by her deposition testimony.

    The Court noted that there appears to be no opinion offered by Metzner about any assumptions MHC Alto made during her ISP assessment.

    It was held that Metzner’s opinion in this respect is, by his own admission, only relevant if MHC Alto made an assumption regarding the 5150 hold release during her ISP assessment of Morton. As such, to the extent Plaintiffs put forth evidence that MHC Alto made such an assumption during the ISP assessment, Metzner may testify that, in his expert opinion, relying on such an assumption contributed to the reasons her care fell below the acceptable standard. But if Plaintiffs fail to offer evidence that MHC Alto relied on this assumption, or any assumption regarding Morton’s release from the 5150 hold, during her ISP assessment, Metzner cannot, and seemingly does not, offer an opinion in this respect.

    c. Causation

    County Defendants also take issue with Metzner’s opinion “that if Alto had obtained Morton’s Alvarado Parkway Institute (“API”) Records, it would have made a difference for Morton here because, according to Metzner, Morton’s medical history as provided by him to VDF medical staff was not consistent with information in the API records.”

    The Court held that Plaintiffs can put forth evidence of the 5150 hold records and Metzner can opine that MHC Alto’s care was substandard for her failure to obtain these records. But ultimately, it is up to the jury to determine the import of these records and opinion testimony—for example, whether MHC Alto would have or should have done anything different, including whether she would have concluded Morton was suicidal, had she obtained and reviewed these records.

    3. Opinions re MHC Sparks

    County Defendants challenged Metzner’s opinion regarding MHC Sparks’ failure to complete Morton’s 24-hour ISP follow-up assessment. The Court held that Metzner’s opinion as to the reasoning behind why MHC Sparks did not perform the follow-up assessment appears to be based wholly on speculation and not any reliable methodology or specialized experience.

    County Defendants also challenged two opinions Metzner offered during his deposition as beyond the scope of his report. First, Metzner opined that the nature of Morton’s phone conversations with girlfriend and mother were much more suicidal related to the conditions to confinement. He felt that a 24-hour assessment was necessary.

    The Court agreed that this opinion appears to be beyond the scope of Metzner’s expert report. However, the Court is not persuaded that it should be excluded on this basis alone. In this case, County Defendants do not explain how they have been prejudiced by Metzer’s failure to include this opinion in his written report. In any event, the record is clear that his failure to do so was harmless because County Defendants had sufficient time and ability to question Metzner on this opinion when he raised it during his deposition. 

    County Defendants also challenged an opinion Metzner made on page 67 of his deposition. The record is devoid of page 67 of Metzner’s deposition transcript. Without the benefit of the evidence County Defendants seek to exclude, the Court cannot determine whether it is subject to exclusion.

    4. Policies & Training

    County Defendants asked the Court to exclude Metzner’s opinions on the sufficiency of the County’s suicide prevention policies and training. 

    Metzner further opined during his deposition that the  the ISP “assessments were not very standardized and really varied depending on who the clinician was doing it.” 

    It should be noted that Metzner has ample experience in correctional mental healthcare including suicide prevention programs, policies, and training in the correctional setting. And here, Metzner identifies the policies he reviewed prior to coming to this conclusion.Thus, he adequately explains the basis for his opinion, and the Court is satisfied that his opinion is sufficiently reliable.

    5. Opinions re Nurse Macanlalay

    According to Metzner, “[t]he decision by Samantha Macanlalay RN on 5/11/2020 that a release of information for outside healthcare records was not indicated was problematic in the context of a very recent psychiatric hospitalization following a serious suicide attempt. Obtaining such information would have assisted in the suicide risk assessment process.”

    County Defendants sought to exclude Metzner’s opinions about Nurse Macanlalay as irrelevant because she has since been dismissed from this lawsuit. 

    The Court agreed with County Defendants that Metzner’s opinion that Nurse Macanlalay’s assessment was “problematic” is not probative of any fact or issue in this case.

    6. Summary of Records

    Finally, County Defendants challenged Metzner’s summary of the record in his report. According to County Defendants, this evidence is impermissible because his summary paraphrases the evidence and is incomplete.

    To the extent Metzner’s report includes an unadorned regurgitation of the facts, evidence, and/or record in this case, the Court held that his opinion and testimony is impermissible.

    County Defendants also specifically challenged Metzner’s summary of the Citizens’ Law Enforcement Review Board (“CLERB”) report, State Auditor’s report, Critical Incident Review Board (“CIRB”) reports, and Disability Rights California (“DRC”) report.

    As to the CLERB report summary, the Court agreed that Metzner’s evidence is subject to exclusion. Metzner quoted a portion of the report and comments that a statement contained therein is inaccurate based upon evidence elsewhere in the record. This opinion does not appear to be based on any expertise or particular experience, and a factfinder does not need any specialized knowledge to review two documents and determine whether they are inconsistent.

    A review of Metzner’s summary of the State Auditor’s report, reveals no opinions or other commentary— Metzner simply summarizes the report and its findings. The Court held that it is impermissible.

    Turning to the CIRB reports, Metzner indicated that he reviewed reports from January 2015 to August 2019 and opines on the adequacy of these reports and that there are “common themes” between the prior incidents and the issues he identifies as connected to Morton’s suicide. The Court is satisfied that, if relevant, this opinion is reliable and based on Metzner’s experience and qualifications.

    Finally, as with his summary of the State Auditor’s report, Metzner merely restates part of the DRC report. The Court held that this evidence is subject to exclusion as unreliable and improper.

    Motion to Exclude Campbell’s Opinions

    To suggest that Morton’s estate is not a party to this litigation is inaccurate

    Campell offers her opinion on Plaintiffs’ economic damages based upon Morton’s income projections, personal consumption, and household services as well as other costs attributed to his wrongful death. 

    First, County Defendants asserted that Campbell’s report estimates the value of Morton’s hypothetical future estate as the value of wrongful death damages, but that “Morton’s estate, should one exist, is not a Plaintiff in this litigation.” 

    To suggest that Morton’s estate is not a party to this litigation is inaccurate. The Court held that County Defendants appear to misapprehend the distinction between wrongful death claims and survival claims and their related damages. Damages for a wrongful death claim are personal to those who survive the decedent whereas damages for claims that survive death are personal to the decedent. For wrongful death claims, i.e., where heirs or survivors can recover their own damages based upon the death of their loved one, a Plaintiff may recover both economic and noneconomic damages.

    A review of Campbell’s report reveals that her opinions fall squarely within the realm of permissible wrongful death damages evidence and that she does not improperly include damages particular to Plaintiffs as individuals. And because Plaintiffs press a wrongful death claim, this evidence is relevant assuming they can prove liability.

    Campbell calculated Morton’s earning potential based upon various factors and variables

    County Defendants asserted that Campbell’s opinions are unreliable. The Court disagreed. Campbell calculated Morton’s earning potential based upon various factors and variables.

    She also considered his past history of work. And she sufficiently explained and supported the basis for her calculations. Her ultimate conclusion is that, based upon these variables, Plaintiffs’ damages range from $495,702.17 to $1,082,185.53 if Morton was single with no children, which he was at the time of his death. The Court is satisfied that Campbell’s opinion is based upon a reliable methodology and that County Defendants challenges goes to the weight of Campbell’s evidence, which they can attack on cross-examination. 

    Held

    • The Court granted in part County Defendants’ motion to exclude the expert opinions and testimony of Dr. Jeffrey Metzner.
    • The Court denied County Defendants’ motion to exclude the expert opinions and testimony of Dr. Kaycea Campbell.

    Key Takeaway:

    Metzner has ample experience in correctional mental healthcare including suicide prevention programs, policies, and training in the correctional setting but his opinion regarding MHC Sparks’ failure to complete Morton’s 24-hour ISP follow-up assessment appears to be based wholly on speculation and not any reliable methodology or specialized experience. 

    Also, Campbell arrived at Morton’s earning potential based upon various factors and variables after considering his past history of work. And she sufficiently explains and supports the basis for her calculations. 

    Case Details:

    Case Caption: Morton Et Al V. County Of San Diego Et Al
    Docket Number: 3:21cv1428
    Court: United States District Court, California Southern
    Order Date: December 16, 2024
  • Accident Reconstruction Expert Witness’ Supplemental Report Correcting Mathematical Errors Admitted

    Accident Reconstruction Expert Witness’ Supplemental Report Correcting Mathematical Errors Admitted

    Plaintiff Kimberly Allcorn filed a lawsuit to recover damages for injuries from a collision with a tractor-trailer. Defendant Kay Beach, driving the tractor-trailer, worked for Western Flyer Express, LLC at the time.

    Both vehicles traveled northbound on a four-lane highway with a 65-mph speed limit. Allcorn was in the right lane ahead of Beach, who was in the left lane at 71 mph. As Allcorn changed lanes, moving slower than Beach, the tractor-trailer struck the rear of Allcorn’s vehicle despite applying the brakes.

    There was a fact dispute as to whether Beach, had she been driving the speed limit, could have avoided the collision. On June 10, 2024, Allcorn designated Soan Chau as an accident reconstruction expert witness. Chau’s report concluded that if Beach had driven 65 mph, she could have avoided the crash.

    On July 9, 2024, the Defendants provided the testimony of their own accident reconstruction expert witness, who found errors in Chau’s calculations. It was alleged that Chau’s report misrepresented Beach’s speed as 76 mph instead of 71 mph and claimed that even at 65 mph, the crash would have been unavoidable.

    On August 7, 2024, the Plaintiff submitted a corrected report from Chau. Chau maintained that Beach could have avoided the crash at 65 mph.

    The Defendants requested the Court strike the report, arguing it was untimely and exceeded the scope for revisions. The Plaintiff claimed the report was both proper and timely.

    Accident Reconstruction Expert Witness

    Accident Reconstruction Expert Witness

    Soan Chau is a transportation consultant specializing in vehicular accident analysis, with over 30 years of experience in cases involving passenger vehicles, tractor-trailers, motorcycles, bicycles, and pedestrians. Throughout his career, Chau has analyzed over a thousand cases, contributing expertise in scene preservation, documentation, surveying, reconstruction, simulation, animation, and other transportation-related matters.

    Soan Chau earned a Bachelor of Science in Civil Engineering from the University of Florida in 1993. He further pursued advanced studies at the University of Florida, completing all required coursework for a Master of Science in Traffic Engineering between 1997 and 1999.

    He is also a certified Event Data Recorder (EDR or “black box”) analyst and retriever for both commercial vehicles and passenger cars.

    Want to know more about the challenges Soan Chau has faced? Get the full details with our Challenge Study report.  

    Discussion by the Court

    Federal Rule of Civil Procedure 26(e) requires timely supplementation if a prior disclosure is materially incomplete or incorrect, and the information has not otherwise been provided during discovery. Additionally, under the present Court’s Local Uniform Civil Rule 26(a)(5), such supplementations must be made at appropriate intervals “and in no event later than the discovery deadline established by the case management order.”

    The Court found no merit in the Defendants’ argument that supplementation is only required when based on new information unavailable at the time of the initial disclosure. Instead, Rule 26(e) clearly requires supplementation when a party learns of an error or omission, as occurred here.

    The Defendants also argued that Chau’s supplemental report was unnecessary because their expert had already identified the errors. The Court held that this argument undermined the Defendants’ request for relief. If the corrections were already known, Chau had no obligation to provide them, and his supplemental report would have been gratuitous. However, the Plaintiff did not advance this position.

    The Court concluded that once Chau learned of the errors in his calculations, he had a duty to correct them promptly. Chau complied with this duty by submitting a supplemental report within 30 days, well before the discovery deadline. The Court emphasized that Chau did not offer a new opinion disguised as a supplement. Instead, he corrected mathematical errors in his calculations without altering his opinion.

    The Court found nothing improper in Chau’s actions, as his supplemental report adhered to both the letter and spirit of Rule 26(e).

    Held

    The Court denied the Defendants’ motion to strike the supplemental report of Plaintiff’s accident reconstruction expert witness Soan Chau.

    Key Takeaway:

    The Court admitted Soan Chau’s supplemental report, emphasizing the importance of timely corrections when an expert discovers errors in their calculations. Under Federal Rule of Civil Procedure 26(e), experts are required to correct any material inaccuracies in their disclosures, even if no new information is introduced.

    The Court found that Chau’s corrected report, submitted within the required timeframe, was a necessary and appropriate response to the identified errors. Importantly, the Court noted that Chau’s supplemental report did not offer any new opinions but merely corrected mathematical errors without altering his original conclusions. In conclusion, the Court held that Chau’s actions complied with the letter and spirit of the Rule, denying the Defendants’ motion to strike the report.

    Please refer to the blog previously published about this case:

    Physical Medicine & Rehabilitation Expert Witness’ Testimony Indicating a History of Post-Concussive Syndrome Deemed Speculative

    Case Details:

    Case caption: Allcorn V. Beach Et Al
    Docket Number: 1:23cv121
    Court: United States District Court for the Northern District of Mississippi, Aberdeen Division
    Dated: December 12, 2024
  • Aquatics Expert Witness’ Testimony on Franchisor Duties Excluded

    Aquatics Expert Witness’ Testimony on Franchisor Duties Excluded

    In this case arising from alleged contaminants at a water park, Plaintiffs sued (among others) the park’s franchisor, Leisure Systems, Inc.

    Eleven children contracted a dangerous strain of the E. coli bacterium in 2021. Plaintiffs said they contracted it in two pools at the Jellystone Park Yogi on the Lake (Jellystone) camping resort in Pelahatchie, Mississippi. The park holds a franchise agreement with LSI, and the main issue is whether LSI owed Plaintiffs a duty to make the pools reasonably safe.

    LSI “holds an exclusive license from Hanna-Barbera Productions, Inc., to use the name, character, symbol, design, likeness and visual representation of Yogi Bear and other trademarks and service marks . . . in connection with the construction, operation and franchising of campgrounds and resorts.” As part of this franchise agreement, LSI sets general conditions on Jellystone’s operation. But the agreement specifies that the franchisor and franchisee are independent contractors and not each other’s agents, partners, employees, etc.

    Although LSI set many quality-assurance standards in its 800-plus page Brand Standards Manual, it prescribed no details for pool chlorination and assumed no control over the pools’ day-to-day operations and maintenance. And that is precisely where Plaintiffs find fault. They say LSI knew about proper pool maintenance but shut its eyes to whether the franchisee was keeping the water safe. This, they say, breached the duty of care a franchisor owes invitees, at least according to Plaintiffs’ expert, Barbara Kloberdanz.

    LSI said Kloberdanz lacks any qualifications related to the duties imposed on franchisors and that her opinions about industry standards are unreliable.

    Aquatics Expert Witness

    Barbara Kloberdanz has an extensive background in the field of aquatics, beginning in 1985. She started her career as a lifeguard and swim instructor and transitioned into operations and facility management in 1989. Since then, she has been involved in all aspects of aquatics facility management and design, contributing to several award-winning aquatic facilities. In 2018, she received the Aquatic Professional of the Year award from the Colorado Parks and Recreation Association and was recognized as a Safety Champion by the Colorado Self-Insured Agency.

    Want to know more about the challenges Barbara Kloberdanz has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Plaintiffs said Kloberdanz’s expertise exceeds aquatics and extends to the standard of care for branding franchisors like LSI. Broadly stated, Kloberdanz concluded that LSI “departed from clear industry standards that required . . . steps to ensure that the instructions given to [Jellystone] about recreational water management were complete and scientifically accurate, and to regularly inspect or audit the park for compliance with defined standards.”

    The Court observed that Plaintiffs have identified no education, training, or experience Kloberdanz may possess about franchise issues. She does, however, claim to have knowledge about three companies that operate recreational-water attractions in multiple locations—Great Wolf Lodge, Water Country, and Hyatt Regency.

    The Court held that Kloberdanz has no known experience with franchise issues. As for her examples, she appears to have done work for only one of them, Hyatt. For the other two examples—Great Wolf Lodge and Water Country—she bases her opinions on presentations she attended or gave about their water-management procedures. But she does not say whether those presentations mentioned industry standards for franchisors—like LSI— that have agreements with owner/operators.

    In fact, Kloberdanz has never read any of the franchise agreements for the companies she cites—assuming those agreements exist. And she knows nothing about the companies’ business structures. She could not, for example, say whether the locations were independently owned and operated as was Jellystone. The Court held that Plaintiffs cannot show Kloberdanz is an expert in the standard of care applied to franchise agreements like the one here without showing some “knowledge, skill, experience, training, or education” in franchise agreements or industry standards for such franchisors.

    The Court held that Plaintiffs have not met their burden of showing by a preponderance of the evidence that Kloberdanz is qualified to give opinions on franchisor duties or that her opinions are reliable.

    Held

    The Court granted LSI’s Daubert motion to exclude certain opinions from Barbara Kloberdanz.

    Key Takeaway:

    Even if Kloberdanz were qualified, her opinions are unreliable. She cites three examples without knowing anything about those companies’ business models, and she generally looks to basic principles of water management rather than the more precise issue presented. Plus, the Court questions whether these three examples are enough to show an industry standard. Finally, her opinions about the standard of care for franchisors could be viewed as a legal opinion that conflicts with the consensus position from courts and commentators who have considered those duties.

    Case Details:

    Case Caption: Neeley Et Al V. Great Escapes Pelahatchie, LP
    Docket Number: 3:21cv786
    Court: United States District Court for the Southern District of Mississippi, Northern Division
    Order Date: December 16, 2024
  • Emergency Medicine Expert Witness Testimony Excluded Due to Lack of Familiarity with the Memphis Medical Community

    Emergency Medicine Expert Witness Testimony Excluded Due to Lack of Familiarity with the Memphis Medical Community

    Plaintiff, Mikhaila Lenoir filed this healthcare liability action on March 15, 2023, regarding care that occurred at Regional One Health from October 8, 2021 through January 21, 2022. Plaintiff alleged that Regional One Health and its nurses, nurses’ assistants, and other employees allegedly breached the applicable standards of care by:

     . . . failing to properly turn Plaintiff in her bed, failing to restrain and attend to plaintiff while sitting in a chair, failing to properly clean and treat Plaintiff’s bed/pressure sores, failing to place Plaintiff’s call device, performing medical procedures on Plaintiff without her informed consent and in blatant disregard for her clearly expressed non-consent, and by severely limiting Plaintiff’s family visitation.

    Plaintiff designated Dr. Richisa Salazar as her expert witness. She was responsible for establishing the relevant standard of care. Defendant Shelby County Health Care Corporation filed a motion to exclude the opinions of Plaintiff’s medical expert witness Salazar.

    Emergency Medicine Expert Witness

    Richisa Salazar is a licensed physician in Mississippi, Texas, Florida and Georgia. She is currently practicing as an emergency room physician with multiple hospitals including several in the Atlanta, Georgia area.

    Get the full story on challenges to Richisa Salazar’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Defendant argued that Salazar’s testimony should be excluded because she (1) is not licensed in a profession or specialty that would make her testimony relevant; (2) does not satisfy Tennessee’s locality rule; and (3) improperly relies on a national standard of care. 

    A. Whether Salazar is Licensed in a Profession or Specialty that Would Make Her Testimony Relevant

    Defendant contended that Salazar’s license in emergency medicine does not amount to a license in a practice or specialty that makes her testimony relevant. Apparently, the issue is that Salazar is not a “wound care specialist.” Defendant insists that Salazar’s experience in the emergency room is irrelevant because the complaint’s allegations pertain to events that occurred while Plaintiff was under continuous care. As they see it, “the issue in this case is the prevention, development and appropriate treatment of pressure injuries.”

    The Court finds that Salazar is licensed in a profession or specialty that would make her testimony relevant. The Tennessee Supreme Court has made clear that Tenn. Code. Ann. § 29-26-115 does not require that an expert witness practice the same specialty as the Defendant. Instead, courts must “look carefully at the particular issues presented in the case to determine if an expert practices a profession or specialty that would make the expert’s testimony relevant to those issues.”

    The Court finds there to be little reason to require that any medical expert witness in this case be licensed as a wound-care specialist; this case turns on whether Defendant’s medical personnel failed to follow basic patient-care protocols as opposed to wound care specialist-specific standards. To that end, Salazar’s license in emergency medicine, her training in Geriatrics, and her experience with pressure ulcers all demonstrate that she is licensed to practice in a profession or specialty that makes her testimony relevant.

    B. Whether Salazar Satisfies the Locality Rule

    Defendant contended that Salazar failed to establish that she is familiar with the Memphis medical community, or that she practices medicine in a medical community similar to Memphis, and she has not testified as to the Memphis medical community’s standard of care.

    i. Whether Salazar’s Deposition Testimony Satisfies the Locality Rule

    It is given that Salazar does not practice medicine in Memphis. Defendant argued that the only basis Salazar gave for her conclusion that she practiced medicine in a similar community was her statement that she was familiar with the standard of care in Memphis because it seemed very similar to Jackson, Mississippi where she grew up.

    Defendant, however, noted that Salazar never practiced medicine in Jackson, Mississippi. Specifically, Plaintiff acknowledged that Salazar did not know the specific population of the Memphis area, its demographic or socioeconomic makeup, or the exact number of hospitals.

    Plaintiff insisted that Salazar’s testimony reflects that she did know that the University of Tennessee Medical School was in the Memphis area and that Regional One Health was Level 1 trauma center which offered a wide range of specialties.

    Based on a review of the deposition transcript, the Court held that it would be quite charitable to conclude that Salazar knew either of these facts. Nowhere in this response did Salazar affirm that she “knows” that there are medical schools in Memphis. To the contrary, her response reflects that she is uncertain. Moreover, all of Salazar’s purported knowledge regarding Regional One Health appears to have been derived from a string of assumptions she made because the hospital was treating Plaintiff.

    The Court held that Salazar’s deposition testimony does not establish that she is familiar with the Memphis medical community or its standard of care.

    ii. Whether Salazar Satisfies the Locality Rule with the Addition of her Affidavit

    Plaintiff included a supplemental affidavit, in seeming acknowledgment of the inadequacy of Salazar’s testimony on this matter. Here, Salazar’s familiarity with the Memphis medical community and its standard of care turns on two facts: (1) that she earned her Master’s Degree in Public Health with a concentration in Health services and Doctorate of Medicine from Meharry Medical College in Nashville, and (2) that Memphis is very similar to Atlanta—where she has practiced medicine since 2018—with respect to size, population, medical facilities, and access to medical information.

    Concerning (1), Salazar appears to be suggesting that she became familiar with the Memphis standard of care via her “Tennessee medical education.” She also mentions that she frequently visits her family in Memphis. Defendant argued that Plaintiff’s attempt to connect Salazar’s time in medical school in Nashville, Tennessee still fails to satisfy the locality rule because Salazar was in medical school 13 years before the time that the events in this case took place, and her history in Nashville still does not establish her familiarity with Memphis’s medical community.

    The Court is not persuaded that Salazar satisfies the locality rule even with the additional information from her affidavit. She fails to explain how her Nashville education provided her with any insight into the Memphis medical community and provides a hazy rationale on why she believes that Atlanta’s medical community is similar to Memphis’s. She also conceded that she was applying a national standard of care when she was testifying.

    Held

    The Court granted the Defendant’s motion to exclude the opinions of Plaintiff’s medical expert witness Richisa Salazar, M.D. 

    Key Takeaway:

    Given Plaintiff’s concession that Salazar did not know the specific population of the Memphis area, its demographic or socioeconomic makeup, or the exact number of hospitals and the Court’s finding that Salazar has failed to make a strong enough affirmative showing that she has any familiarity with the Memphis medical community and standard of care, the Court concluded that Salazar did not satisfy the locality rule.

    Case Details:

    Case Caption: Lenoir V. Shelby County Health Care Corporation
    Docket Number: 2:23cv2138
    Court: United States District Court, Tennessee Western
    Order Date: December 16, 2024
  • Psychiatry Expert Witness’ Rebuttal Testimony Admitted Despite Claims of Untimely Disclosure

    Psychiatry Expert Witness’ Rebuttal Testimony Admitted Despite Claims of Untimely Disclosure

    Plaintiff Rebecca Leeper filed a Complaint for Damages against the Defendants, the City of Tacoma and Tel Thompson. The case arose from injuries she sustained in a sexual assault on July 17, 2018. In her Complaint, Leeper alleged that the City had prior knowledge of Thompson’s dangerous conduct, including a documented history of confrontational behavior and inappropriate sexualized conduct while working in his Tacoma Police Department uniform. Despite this knowledge, the City allegedly failed to implement reasonable protective or supervisory measures, leading to Leeper’s assault by Thompson. As a result, she claimed to suffer from emotional distress, including depression, anxiety, shame, fear, anger, sadness, embarrassment, and physical health problems such as hypervigilance and irritability.

    Leeper moved to strike two rebuttal expert witnesses designated by the City of Tacoma, Ryan Spurling and Dr. Douglas Robinson. She argued that these witnesses were not offering rebuttal opinions and should have been disclosed earlier. Tacoma responds that no rule requires it to designate a primary expert to address the opponent’s expert expected opinions and evidence, but rather the defense is permitted to wait until after Plaintiff’s expert disclosures to disclose experts to rebut the same subjects.

    Law Enforcement Expert Witness

    Ryan Spurling‘s career in law enforcement has spanned more than 32 years. He has served in the law enforcement community with the Washington State Patrol (WSP), the Mason County Sheriff’s Office (MCSO), and as an expert witness for Use of Force (UOF) and Police practices.

    Get the full story on challenges to Ryan Spurling’s expert opinions and testimony with an in-depth Challenge Study.   

    Psychiatry Expert Witness

    Douglas Perry Robinson is a psychiatrist in Seattle, WA and has over 47 years of experience in the medical field. He graduated from University of Utah in 1976.

    Want to know more about the challenges Douglas Perry Robinson has faced? Get the full details with our Challenge Study report.   

    Discussion by the Court

    The Court found that both Spurling and Robinson met the requirements of Rule 26 as experts “intended solely to contradict or rebut evidence on the same subject matter identified by another party.”

    Furthermore, and in any event, Leeper waited almost four years after the cutoff date for motions related to discovery and more than a year after remand and just weeks before trial to move to strike as untimely experts Tacoma disclosed in 2021. Any prejudice from the allegedly late disclosure could have been ameliorated if she had raised the issue much sooner. 

    Held

    The Court denied the Plaintiffs’ motion to strike Tacoma’s expert witnesses, Ryan Spurling and Dr. Douglas Robinson.

    Key Takeaways:

    The party with the burden of proof on an issue should disclose its expert testimony before the other party is required to disclose an expert to rebut that opinion testimony. Furthermore, and in any event, Leeper waited almost four years after the cutoff date for motions related to discovery and more than a year after remand and just weeks before trial to move to strike as untimely experts Tacoma disclosed in 2021.

    Case Details:

    Case Caption:  Leeper V. City Of Tacoma Et Al
    Docket Number: 3:20cv5467
    Court: United States District Court for the Western District of Washington
    Order Date: December 13, 2024
  • Law Enforcement Expert Witness Allowed to Discuss Intoxication’s Impact on the Ability to Communicate 

    Law Enforcement Expert Witness Allowed to Discuss Intoxication’s Impact on the Ability to Communicate 

    As personal representative to the estate of Joshua Sarrett, Plaintiff Derek Stenson brings federal and state law claims against King County and Jacob Leenstra, a Sherriff’s Deputy, who shot and killed Sarrett on September 19, 2020, while responding to a request for help at Sarrett’s residence.

    On September 19, 2020, Sarrett’s sisters, Chantal Capps and Amanda Haynes, went to Sarrett’s home in Auburn to check on his welfare after hearing reports that he had been depressed, drinking excessively, and physically abusing his girlfriend, Taylor Nystrom. 

    King County Sheriff’s Deputy Jacob Leenstra was flagged down and asked to intervene with Joshua Sarrett. Deputy Leenstra was told that Joshua Sarrett was intoxicated, violent, and armed with a gun which he had both fired and pointed at someone.

    Based on what he had been told, Leenstra did not want to leave until he investigated the domestic violence allegations. Leenstra shot and struck Sarrett four times from roughly fifty feet away. After Leenstra shot Sarrett, he cuffed him and began to provide medical care until Auburn Police arrived. Sarrett died shortly after Leenstra shot him. 

    Defendants filed a motion to exclude two of Plaintiff’s experts: Russ Hicks and Roger Clark. 

    Hicks, who has substantial experience in law enforcement and officer training in Washington, opines as to whether Leenstra’s actions complied with “policy, police standards, and . . . basic police academy training [Leenstra] received at the [Washington State Criminal Justice Training Center] regarding criminal laws, reasonable suspicion, probable cause, use of force, patrol tactics, and de-escalation in the confrontation and the use of deadly force.” 

    Clark has extensive law enforcement experience and provides his opinion on whether Leenstra’s use of deadly force was reasonable and consistent with police training and a “reasonable professional standard of care” for police officers.

    Law Enforcement Expert Witnesses

    Russ Hicks is a retired, 30-year law enforcement officer and former police academy supervisor and trainer. Specifically, he was the Basic Law Enforcement Academy (BLEA) Assistant Commander and a police instructor (TAC Officer) at the Washington State Criminal Justice Training Commission (WSCJTC) in Burien, WA.

    Get the full story on challenges to Russ Hicks’ expert opinions and testimony with an in-depth Challenge Study. 

    Roger Clark has been certified by Federal and State courts as expert in jail and police procedures in Federal and State Courts. He has been consulted in approximately 2400 cases thus far since his retirement from the Los Angeles County Sheriff’s Department.

    Want to know more about the challenges Roger Clark has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Russ Hicks

    First, Defendants argue that Hicks’ opinions should be excluded because he omitted data provided by Leenstra about Sarrett’s behavior. Defendants argue that Hicks did “not attempt to opine whether an officer could reasonably mistake a gun magazine in a pocket for a gun.” The Court held that this criticism does not identify a critical flaw in Hicks’ methodology or any basis to conclude that his opinion is based on insufficient data. At most, it identifies an issue that may be relevant to the fact-finder’s determination, but not one that is required to make the expert’s opinion admissible or reliable.

    Second, Defendants argued that Hicks’ opinion is unreliable because he did not base his opinion on statements made a month after the shooting. But Hicks’ decision as to what evidence he found more persuasive does not mean his opinion is subject to exclusion. At trial, the Court held that Defendants will be free to attack his decision to put greater weight on certain evidence and discount other evidence. But that is not a basis for exclusion.

    Third, Defendants argued that Hicks’ opinion was excluded in another case. But this argument failed to identify any reason why Hicks’ opinions in this case should be excluded. The Court rejected this incomplete argument.

    Lastly, Defendants point out that Hicks may have overlooked certain evidence. The Court held that the fact that he may have based his conclusion on an incomplete record is not grounds for the exclusion of his report. At trial, Defendants can point out the gaps in Hicks’ opinion to the finder of fact, who will be well-positioned to weigh the value of Hicks’ testimony and opinions. Any omissions will go to the persuasiveness of his opinions.

    Roger Clark

    First, Defendants argued that Clark lacks sufficient “experience on modern police standards” to provide his opinion on the standard of care for use of force. Defendants pointed out that Clark has never been a police officer in Washington and he failed to cite Washington law in rendering his opinion. But the Court found that he had extensive law enforcement experience identified in his report that supports his views on the standards of police use of force. This is relevant to Plaintiff’s federal claims, which do not require any particular expertise in Washington State.

    Second, Defendants argued that Clark failed to identify the Graham factors in his analysis and that he invoked the wrong standard. The Court found no merit in this criticism. Clark opines generally on the use of force and whether it was objectively reasonable, given his experience and training. While his report could be clearer about the legal framework, that alone does not merit exclusion of his opinion.

    Third, Defendants argued that Clark improperly opined on ultimate issues of liability that the jury should consider without experts intruding on the jury’s province. Defendants specifically fault Clark for stating that “Deputy Leenstra’s use of lethal force in this case was based on a subjective belief/fear and was never justified.” But as the Court understands Clark’s report, he is not opining an ultimate jury issue. Rather, he provides his assessment of whether Leenstra’s use of force was reasonable and justifiable.

    Fourth, Defendants argued that Clark cannot testify about the effect of alcohol on Sarrett and his ability to comply with Leenstra’s demands. While Clark’s opinion are potentially subject to effective cross examination, he does have sufficient experience to discuss intoxication’s impact on the ability to communicate in the context of the facts of this case.

    Held

    The Court therefore denied the motion to exclude both Russ Hicks’ and Roger Clark’s expert opinions.

    Key Takeaway:

    Just because Russ Hicks’ opinions was excluded in another case does not mean his opinions in this case should be excluded. 

    When Defendants identified gaps in Hicks’ opinion, the Court held that the finder of fact will be well-positioned to weigh the value of Hicks’ testimony and opinions.

    As for Clark, the Court understands Clark’s report because he is not opining an ultimate jury issue. Rather, he provides his assessment of whether Leenstra’s use of force was reasonable and justifiable.

    Case Details:

    Case Caption: Stenson V. King County Et Al
    Docket Number: 2:23cv1316
    Court: United States District Court, Washington Western
    Order Date: December 13, 2024
  • Physical Medicine & Rehabilitation Expert Witness’ Testimony Indicating a History of Post-Concussive Syndrome Deemed Speculative

    Physical Medicine & Rehabilitation Expert Witness’ Testimony Indicating a History of Post-Concussive Syndrome Deemed Speculative

    The Plaintiff, Kimberly Allcorn, brought this action seeking the recovery of damages for injuries she allegedly sustained in a collision between an automobile she was driving and a tractor trailer being driven by the Defendant Pamela Kay Beach while in the course and scope of her employment with the Defendant Western Flyer Express, LLC.

    The Defendants designated Michael Winklemann, MD as a medical expert who would offer opinions — based on his review of the Plaintiff’s medical records and his independent medical examination (IME) of the Plaintiff to be conducted subject to the Plaintiff’s availability — as to the Plaintiff’s pre-existing conditions, her injuries allegedly sustained in the accident and the treatment thereof.

    Winklemann’s Testimony

    After Winklemann conducted his IME of the Plaintiff, the Defendants provided the Plaintiff with Winklemann’s signed, written report identifying the medical records he reviewed, describing in detail the IME he performed and concluding that the Plaintiff does have very clear evidence of residual central cord symptomatology with good overall compensation. A history
    of previous post-concussive syndrome is very plausible, but not well documented.

    A few days later, the Defendants provided the Plaintiff with a written “Addendum” to Winklemann’s report. The addendum stated that the patient does not need any assistive devices at this point, although she has some weakness in her toe extensors and is recommended to wear supportive footwear which would not require a particular orthosis.

    The Plaintiff sought to exclude Winklemann’s testimony at trial, arguing that his written report is inadequate under Federal Rule of Civil Procedure 26(a)(2)(B), and that his opinions are inadmissible under Federal Rule of Evidence 702.

    Physical Medicine & Rehabilitation Expert Witness

    Michael Winklemann is a physician with NewSouth NeuroSpine. He is Board Certified in Physical Medicine and Rehabilitation. He has held a medical license since 1993.

    Get the full story on challenges to Michael Winklemann’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Federal Rule of Civil Procedure 26(a)(2)(B)

    Defendants argue that the Plaintiff’s challenge should be deemed waived under the local rule

    Local Uniform Civil Rule 26(a)(3) states, “Challenges as to inadequate disclosure of expert witness(es) must be made no later than thirty days before the discovery deadline or will be deemed waived.” Because the Plaintiff did not file her motion until November 1, 2024 — two weeks after the October 18, 2024 discovery deadline – the Defendants argue that her challenge should be deemed waived under the local rule. However, as the Defendants acknowledge, they did not provide the Plaintiff with Winklemann’s report and addendum until less than 30 days remained in the discovery period. As such, the Plaintiff could not possibly have met the local rule’s deadline for challenging the adequacy of Winklemenn’s report, and the Court will not penalize her for that.

    The Plaintiff filed her motion within 30 days after receiving Winklemann’s addendum and before the deadline for dispositive and Daubert-type motions passed. Under the circumstances, the court will decline to find that the Plaintiff waived her challenge. For the most part, however, the Court finds that her challenge fails on its merits.

    Plaintiff argues that Winklemann’s report is inadequate

    As to the adequacy of Winklemann’s report, Federal Rule of Civil Procedure 26(a)(2)(B) requires that the report contain, among other information, a complete statement of all opinions the witness will express and the basis and reasons for them; the facts or data considered by the witness in forming them; and any exhibits that will be used to summarize or support them.

    The Plaintiff argues that Winklemann’s report lacks sufficient detail in these regards and does not clearly state Winklemann’s opinions or the bases for them. The Court disagrees.

    The report identifies the documents — including the medical records — that Winklemann reviewed, and it describes in detail the Plaintiff’s history of present illness, past surgical history, current medications, social history, family medical history, pain level, and review of systems. It also states in detail the results of Winklemann’s physical examination of the Plaintiff, including tests performed. The report contains his impression of the Plaintiff’s medical history, as well as his diagnosis of residual central cord symptomatology with good overall compensation. The report’s addendum states Winklemann’s opinions as to the Plaintiff’s current and future treatment needs.

    The Court has little difficulty discerning what Winklemann’s opinions are, the bases for them, and the facts or data he considered in forming them. Although the report does not include exhibits, Rule 26(a)(2)(B) does not require the inclusion of exhibits unless the expert will use exhibits to summarize or support his opinions. If an expert’s report contains no exhibits, this means that the expert may not use exhibits to summarize or support his opinions at trial – it does not mean that the expert may not testify at trial.

    Federal Rule of Civil Procedure 702

    In her motion challenging the admissibility of Winklemann’s testimony, the Plaintiff does not challenge Winklemann’s qualifications or the reliability of Winklemann’s methodology or the facts underlying his opinions. Rather, the Plaintiff argues that Winklemann’s opinions are not relevant to the issues of liability or damages in this case and will not assist the trier of fact. Of course, the Defendants dispute this contention, and the Court struggles to see how, in a personal injury case in which the Plaintiff’s medical conditions and treatment needs are at issue, a medical expert’s testimony as to the Plaintiff’s medical conditions and treatment needs are irrelevant.

    The Court declined to find that Winklemann’s testimony is irrelevant and inadmissible at this time. The Plaintiff may raise her relevancy objection at trial, during which the Court will be in a better position to assess the relevance of the particular testimony to which she objects based upon the specific issues then before the court. Notwithstanding the above discussion, the Court is persuaded by the Plaintiff’s challenge as to one aspect of Winklemann’s report and expected testimony – his statement, “A history of post-concussive syndrome is very plausible, but not well documented.” The Court agreed with the Plaintiff’s contention that this statement is vague, speculative, and will not help the trier of fact to understand the evidence or to determine a fact in issue.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion to exclude testimony of Michael Winklemann.

    Key Takeaway:

    In a personal injury case, a medical expert’s testimony as to the Plaintiff’s medical conditions is relevant especially when the Plaintiff’s treatment needs constitute the core issue. However, Winklemann’s testimony indicating a history of post-concussive syndrome failed to persuade the Court.

    Case Details:

    Case Caption: Allcorn V. Beach Et Al
    Docket Number: 1:23cv121
    Court: United States District Court, Mississippi Northern
    Order Date: December 12, 2024
  • Pain Management Expert Witness Permitted to Testify That Plaintiff’s Surgery Addressed His Annular Tear

    Pain Management Expert Witness Permitted to Testify That Plaintiff’s Surgery Addressed His Annular Tear

    Plaintiff Matthew Iwaskow was injured in a car accident on December 4, 2015. Iwaskow sought insurance proceeds that he alleged he is entitled to under his policy’s underinsured motorist bodily injury coverage.

    On November 27, 2023, Safeco filed a Federal Rule of Evidence 702 motion seeking to exclude three opinions of Iwaskow’s retained medical expert, Jeffery Petersohn, namely, (1) that Iwaskow is suffering from radicular nerve pain that is caused by a herniated disc and by a damaged vertebral endplate; (2) that Iwaskow should have fusion surgery to ameliorate his pain; and (3) that a herniated disc in Iwaskow’s back causes nerve impingement.

    On February 2, 2024, the Court granted in part and denied in part Safeco’s motion. The Court concluded that Petersohn could testify that Iwaskow had a herniated disc, but that he could not testify that the herniated disc was impinging a nerve or that Iwaskow’s pain was caused by damage to his endplate.  However, the Court found admissible Petersohn’s opinions that Iwaskow’s accident caused his injuries and that a fusion surgery could ameliorate Iwaskow’s pain.

    On December 20, 2023, Iwaskow filed a motion asking the Court to allow Iwaskow to disclose recent medical records concerning Iwaskow’s pending back surgery. The Court denied the motion, finding that the disclosure of this evidence so close to the February 12, 2024 trial would prejudice Safeco. The trial was later vacated due to a criminal trial set on the same day and was reset for December 16, 2024. Iwaskow then renewed his motion seeking to reopen discovery.

    Given the continuance of the trial, the Court found that Safeco now had sufficient time to complete the additional discovery necessary to cure any prejudice to it from Iwaskow’s new disclosures and therefore granted Iwaskow’s motion to reopen discovery. 

    Supplemental Expert Report

    In its order reopening discovery, the Court ordered Iwaskow to “produce to defendant all previously undisclosed medical records, documents concerning plaintiff’s surgery, and records from plaintiff’s treating providers.” 

    The Court required the parties to “submit to Magistrate Judge Susan Prose proposed amendments to the final pretrial order in the form of suggested deadlines to complete additional discovery, to file additional discovery objections or motions, and to file any Rule 702 challenges based on the new discovery and supplemental expert reports.”

    On July 22, 2024, Judge Prose granted Safeco’s request for it to conduct a second Independent Medical Exam (“IME”) of Iwaskow and set deadlines for the parties to file Rule 702 motions.

    On October 14, 2024, Petersohn wrote a supplemental expert report responding to Safeco’s retained medical expert’s report on Iwaskow’s second IME. 

    Safeco filed its motion to exclude three opinions in Petersohn’s supplemental report and mentioned in Petersohn’s deposition regarding the second IME. First, Safeco asks the Court to exclude Petersohn’s opinion that Iwaskow has endplate fractures on the grounds that the Court has already excluded this opinion.

    Safeco also sought to exclude Petersohn’s opinions that (1) Iwaskow has a painful radial annular tear caused by trauma and (2) Iwaskow’s surgery was necessitated by the injuries that were caused by the 2015 accident. 

    Pain Management Expert Witness

    Jeffery Petersohn has run a private interventional pain medicine practice in New Jersey and Colorado.

    His specialty is “diagnostic discography, interventions for discogenic pain, kyphoplasty, spinal cord and DRG stimulation, interspinous spacers, sacroiliac joint fusion, lumbar transforaminal and interlaminar full-endoscopic discectomy/foraminotomy/facetectomy.

    Get the full story on challenges to Jeffery Petersohn’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Safeco did not challenge Petersohn’s qualifications to provide the expert medical opinions contained in his October 14, 2024 report. Safeco challenged whether three opinions in Petersohn’s October 14, 2024 expert report are based on sufficient facts and data, are the products of reliable principles and methods, and reflect a reliable application of those methods to the facts of this case. Therefore, the Court will determine whether the opinions found in Petersohn’s October 14, 2024 report are sufficiently reliable.

    Opinion that Plaintiff has Endplate Damage

    The Court previously excluded Petersohn’s opinion that Iwaskow has endplate damage because Iwaskow failed to demonstrate that this opinion was based on sufficient evidence and a reliable methodology. Petersohn’s reference to Modic changes, which could be consistent with a “possible endplate fracture,” was insufficient to demonstrate that Petersohn’s opinion regarding endplate damage is based on sufficient data and a reliable diagnostic method.

    The Court found that “Petersohn’s reports assert only that an endplate fracture is possible and do not discuss the likelihood of this possibility.”

    Petersohn’s report does not define “HNP.” The Court takes judicial notice of the fact that HNP stands for herniated nucleus pulposus, which “is a condition in which part or all of the soft, gelatinous central portion of an intervertebral disk is forced through a weakened part of the disk, resulting in back pain and nerve root irritation.”

    In his June 9, 2024 report, Petersohn’s only reference to endplate damage is his statement that the “vertebral bodies at the vertebral endplates adjacent to the HNP continue to demonstrate endplate fractures.” 

    In his October 14, 2024 report, Petersohn stated that Iwaskow has “small vertebral endplate fractures noted in the adjacent vertebral body endplates” and that this could be a source “of pain and symptomatic injury to Iwaskow’s Lumbar intervertebral disc and vertebral bodies.”

    Analysis

    The Court held that Petersohn’s opinions regarding Iwaskow’s endplate fractures in his October 14, 2024 report are outside the scope of the order permitting disclosure of expert opinions on Iwaskow’s second IME and will be excluded on this basis.

    Turning to Petersohn’s statement in his June 9, 2024 report that Iwaskow’s “vertebral bodies at the vertebral endplates adjacent to the HNP continue to demonstrate endplate fractures,” the Court held that Iwaskow provides no support for the proposition that his obligation under Rule 26(e) to supplement incomplete or incorrect information in an expert report somehow exempts him from the Court’s prior ruling that Petersohn’s opinion is inadmissible.

     In the Court’s order reopening discovery, the Court permitted Iwaskow to “supplement his expert disclosures with any opinions related to recent recommendations by Iwaskow’s treating physicians that he undergoes disc arthroplasty or fusion surgery.” Nothing in that order permits Petersohn to supplement opinions that have been excluded by the Court. 

    Petersohn’s statement that Iwaskow’s “vertebral bodies at the vertebral endplates adjacent to the HNP continue to demonstrate endplate fractures” is an apparent reference to Petersohn’s reading of a December 4, 2023 MRI taken of Iwaskow’s back. This MRI was unavailable to Petersohn when he wrote his initial expert reports in this case. 

    Petersohn’s June 9, 2024 report did not address how his opinion that Iwaskow has endplate damage is “related to recent recommendations by Iwaskow’s treating physicians that he undergoes disc arthroplasty or fusion surgery” and is therefore beyond the scope of the Court’s order permitting Petersohn to supplement his opinions. Therefore, the Court ended up excluding Petersohn’s opinion that Iwaskow has endplate damage.

    Opinion that Plaintiff has a Radial Annular Tear Caused by Trauma

    Safeco argued that, “[b]ecause Petersohn cannot establish that the annular tear he claims Plaintiff suffered in the 2015 car crash has been the longstanding, and recent, source of Plaintiff’s pain, he should not be permitted to opine that Plaintiff’s 2024 spinal surgery was necessitated by the 2015 Accident.”

     In his October 14, 2024 report, Petersohn distinguishes between two types of annular tears. Petersohn states that annular tears of individual collagen fibrils or delamination that “transverse within the posterior disc annulus” are “rarely and infrequently symptomatic.” 

    Petersohn asserted that an “annular tear that extends from the inside of the disc (the nucleus) and extends through multiple sheets of collagen into or through the outer wall of the disc is called a radial tear and this is more likely the result of trauma. This is frequently associated with neovascularization and neoinnervation of the annular fissure, causing pain.” 

    First, Safeco argued that Petersohn provides no support for the proposition that radial tears are most often the result of trauma. Next, Safeco argued that Petersohn’s opinion that Iwaskow has a radial annular tear is not supported by sufficient data because Petersohn’s opinion that Iwaskow’s MRIs show a High-Intensity Zone (“HIZ”) is not supported by the rest of Iwaskow’s medical records.

    Safeco contended that Petersohn’s method of diagnosing Iwaskow’s annular tear is unreliable because, at Petersohn’s deposition, he stated that an MRI was insufficient to show that Iwaskow has a radial annular tear.

    Analysis

    The Court finds that Iwaskow has failed to demonstrate that Petersohn’s opinion that Iwaskow has a radial annular tear is based on a reliable method. Even if the Court were to find that Petersohn’s method of diagnosing Iwaskow’s annular tear as radial based on Modic changes was sufficiently reliable, Iwaskow has failed to show that Petersohn’s opinion fits the facts of the case.

    Finally, the Court considers Petersohn’s opinion that “Iwaskow’s surgery was necessitated to treat the painful HNP, the annular tear, the endplate fractures and resulting nerve pain that were caused by the MVC.”

    Petersohn’s report states that (1) Iwaskow’s annular tear is shown as an HIZ on his MRIs, (2) HIZs correspond to a high likelihood of a positive surgical outcome, and (3) Iwaskow’s annular tear was caused by the 2015 accident. 

    The Court excluded Petersohn’s opinion that Iwaskow’s annular tear is more likely the result of trauma but found Petersohn’s opinion that Iwaskow has an HIZ on his MRI imaging was based on sufficient facts and data.

    Since Petersohn’s report cites authority for the proposition that the presence of an HIZ in an individual with an annular tear indicates a 70% likelihood that a patient would have a “positive surgical outcome,” and that further studies indicate the probability of a positive surgical outcome is increased when certain other diagnostic factors are present, the Court held that Petersohn will be allowed to testify that Iwaskow’s surgery was necessitated, in part, as a means of treating his annular tear. 

    Opinion that Plaintiff’s Surgery was Necessitated by the December 15, 2015 Car Accident

    Safeco argued that Petersohn should not be permitted to opine that the December 15, 2015 car accident caused the injuries and pain for which Iwaskow underwent surgery. 

    First, Safeco argued that Petersohn’s opinion that the 2015 car accident necessitated Iwaskow’s back surgery to treat his disc herniation and annular tear should be excluded because Petersohn does not rule out the possibility that Iwaskow’s pain is caused by his Bertolotti’s syndrome.

    In his October 14, 2024 report, Petersohn stated that

    1) Iwaskow has an anatomic abnormality of the spine called “Bertolotti’s syndrome” that is present in 4-8% of the population,

    2) Bertolotti’s syndrome is a spinal developmental defect present before birth that makes injury to the spine following a vehicular collision more likely than in a patient who does not have this abnormality. These injuries include disc herniation, painful annular tears, and vertebral, endplate fractures

    3) Iwaskow suffered injury to the lumbar disc and to the vertebral endplate regions at the level adjacent to the Bertolotti’s abnormality that were the original sources of his pain,

    4) Iwaskow’s surgery was necessitated to treat the painful HNP, the annular tear, the endplate fractures and resulting nerve pain that were caused by the MVC.

    5) Surgery was not necessitated to treat the Bertolotti’s syndrome.

    Analysis

    The Court held that Petersohn’s opinions regarding Iwaskow’s Bertolotti’s syndrome are within the scope of the order limiting the scope of Petersohn’s response to Sabin’s second IME, given that Sabin raises the issue of Iwaskow’s potential Bertolotti’s syndrome.

    Safeco argued that Petersohn’s opinion that “[s]urgery was not necessitated to treat the Bertolotti’s syndrome” is not reliable because medical literature indicated that individuals with Bertolotti’s syndrome are more likely to experience disc herniation and that Bertolotti’s syndrome can cause chronic back pain. 

    No party disputes that Iwaskow first began reporting pain after the car accident. Safeco did not explain why the presence of Iwaskow’s Bertolotti’s syndrome throughout his life but the absence of pain until the accident is insufficient to show that Iwaskow’s Bertolotti’s syndrome did not cause Iwaskow’s back pain. Therefore, the Court finds that Petersohn may testify that Iwaskow’s surgery was not necessitated by his Bertolotti’s syndrome.

    The Court also finds that Petersohn’s opinion that Iwaskow’s surgery was necessitated to treat the herniated disc, the annular tear, and the resulting nerve pain caused by the 2015 accident is admissible. 

    Petersohn’s opinion, in full, is that “Iwaskow’s surgery was necessitated to treat the painful HNP, the annular tear, the endplate fractures and resulting nerve pain that were caused by the MVC.” The Court has excluded Petersohn’s opinion that Iwaskow’s herniated disc is impinging a nerve. Therefore, to the extent that Petersohn’s statements regarding a “painful HNP” and “resulting nerve pain” is in reference to a herniated disc impinging a nerve, that opinion is excluded. Moreover, for the reasons discussed above, Petersohn will not be permitted to testify that Iwaskow has endplate fractures and cannot testify that such fractures are causing Iwaskow’s pain. 

    Held

    The Court granted in part and denied in part the Defendant Safeco Insurance Company of America’s Rule 702 motion to exclude and/or limit testimony of Plaintiff’s expert witness Dr. Jeffery D. Petersohn.

    Key Takeaway:

    It should be noted that since Iwaskow first began reporting pain after the accident and has done so consistently since 2015, Iwaskow’s medical reports are consistent with Petersohn’s opinion that the accident caused Iwaskow’s injuries. Therefore, Petersohn’s opinion that the accident caused the herniated disc, annular tear, and back pain that was treated by the back surgery is sufficiently reliable. 

    However, when Safeco sought to exclude Petersohn’s opinion that Iwaskow’s herniated disc is impinging a nerve, the Court held that Petersohn’s October 14, 2024 report only discusses Iwaskow’s herniated disc and does not mention that the disc is pinching a nerve. Moreover, the Court has already excluded this opinion while Iwaskow states that he “is not seeking to resuscitate the opinion on nerve impingement.”

    Case Details:

    Case Caption: Iwaskow V. Safeco Insurance Company Of America
    Docket Number: 1:21cv5
    Court: United States District Court, Colorado
    Order Date: December 06, 2024
  • Psychology Expert Witness’ Testimony About the Research on the Reliability of the Field of Firearm and Toolmark Identification Admitted

    Psychology Expert Witness’ Testimony About the Research on the Reliability of the Field of Firearm and Toolmark Identification Admitted

    Defendant Adrian Garcia was charged in a three-count indictment for an alleged carjacking that occurred on May 22, 2022:

    1. Carjacking
    2. Using and carrying a firearm during and in relation to a crime of violence, and possessing a firearm in furtherance of such crime, and discharging said firearm
    3. Being a felon in possession of a firearm and ammunition.

    The Government stated it would present evidence showing the offender possessed a firearm, used it during the carjacking, and discarded it while fleeing. Police later recovered the firearm at the scene.

    The Government retained firearms and toolmark expert witness Erich Smith. Smith examined a spent cartridge case found at the carjacking scene and a nearby 9mm pistol. He determined that the cartridge case was fired from the recovered pistol. Smith followed the E3CV methodology, which stands for evaluation, classification, comparison, conclusion, and verification. This method is recognized by the Association of Firearm and Toolmark Examiners (AFTE). After a challenge under Rule 702 and Daubert, this Court permitted Smith to testify.

    To rebut Smith’s testimony, Defendant retained psychology expert witness, Nicholas Scurich, Ph.D., who specializes the evaluation of forensic firearm/toolmark examination. Now, the defense intended to use Scurich’s testimony to impeach or rebut Erich Smith’s testimony.

    To begin with, Scurich was supposed to testify regarding low repeatability and reproducibility of conclusions by firearm/toolmark examiners in validation studies. Moreover, to the extent Smith relies on validation studies in his testimony, Scurich may testify to fundamental design flaws in the studies regarding the sampling of examiners and materials, problem difficulty and bias, missing data, and inconclusive responses. Finally, Scurich will rebut Smith’s testimony by testifying about reasons for growing skepticism by scientists in the field.

    Psychology expert witness

    Psychology Expert Witness

    Nicholas Scurich is a quantitative psychologist with a PhD in Psychology from the University of Southern California. His training included courses on advanced research methods and advanced statistical methodology. He currently works as a professor at the University of California at Irvine, where he is the chairman of the psychology department. Scurich teaches graduate courses in advanced research methods and forensic assessment. Moreover, he has authored more than 75 peer-reviewed journal articles, book chapters, law review articles, technical reports, and conference proceedings.

    Want to know more about the challenges Nicholas Scurich has faced? Get the full details with our Challenge Study report.  

    Discussion by the Court

    The Government moves to exclude Scurich’s testimony for multiple reasons. The Government argued that the Notice is too broad and did not comply with Federal Rule of Criminal Procedure 16. It also contends that Scurich’s testimony should be excluded under Federal Rule of Evidence 702 because Defendant has not established that Scurich is qualified or that his opinions are reliable, relevant, or helpful to the jury. According to the United States, allowing his testimony would undermine the Court’s gatekeeping function under Daubert and confuse the jury. For the reasons explained herein, the Court disagrees with the Government.

    A. Rule 16 does not justify the exclusion of Scurich’s testimony

    The United States argues that Defendant’s Notice does not contain “a complete statement of all opinions” that Scurich will offer, but instead too broadly lists topics, rather than substantive opinions. It asserts his proposed testimony should be struck on this ground alone. 

    While Defendant’s Rule 16 summaries are relatively cursory, the record contains substantial discussion of Dr. Scurich’s opinions based on his published articles.

    Also, Defendant provided a list of the 25 studies that Scurich is familiar with that informs the Government about which validation studies he may testify. Moreover, any prejudice from the lack of more specificity in the Notice was cured at the hearing. Basically, the purposes of Rule 16 include minimizing surprise from unexpected expert testimony and allowing a party to prepare for cross-examination and presentation of opposing experts.

    Therefore, the Court held that Rule 16’s purposes are met via the disclosures in the record and the opportunity the United States had to cross-examine Scurich at the Daubert hearing. Basically, the United States asked Scurich specific questions as to each of the five enumerated opinions listed in the Notice and gained additional detail as to each. 

    B. Defendant satisfied his burden under Rule 702 and Daubert to establish Scurich’s qualifications and the relevance and reliability of his opinions

    Now, the Federal Rule of Evidence 702 governs the admissibility of expert testimony. An expert must be qualified by knowledge, skill, experience, training, or education, and their testimony must be based on sufficient facts, reliable principles, and a reliable application of those principles to the facts of the case.

    The Court finds that Scurich is qualified as an expert in research design, the evaluation of research design, data analysis including statistical analysis, and the evaluation of data analysis.

    1. Scurich is qualified as an expert.

    According to the Government, Scurich is not qualified in the field of firearm and toolmark identification evidence to render an opinion about the evidence in this case. Scurich, however, is not offering an opinion about the firearm and toolmark analysis Smith conducted in this case. Instead, the Court held that his testimony will be more generally about the research on the reliability of the field of firearm and toolmark identification.

    Although he does not have experience and training in firearms and toolmark casework, he has extensive experience and training in research methods and design. 

    2. Scurich’s opinions are reliable.

    Moreover, the Court held that he has extensively reviewed the literature and research studies testing the firearms and toolmark field and analyzed the raw data therein. He applied reasoning to reach his conclusions based on his specialized knowledge in research design and statistical analysis, his education, and his training.

    3. Scurich’s opinions are relevant and helpful to the jury.

    The United States next argued that, because the issues at trial are not about research designs or the best way to analyze statistical data, the evidence is not relevant and will confuse the jury. 

    The Court held that Scurich’s testimony will aid the jury in understanding the issue of the reliability of firearms and toolmark forensic analysis and help the jury evaluate the weight to afford the expert testimony of Smith.

    4. The Court will permit Scurich to offer expert testimony.

    Defendant has demonstrated that Scurich is qualified, his opinions are reliable, and his testimony is relevant. Therefore, the Court will allow Scurich to testify as an expert witness at trial.

    Held

    In conclusion, the Court denied the United States’ motion to exclude the testimony of psychology expert witness Nicholas Scurich.

    Key Takeaway:

    Scurich has sufficient education, training, experience, and knowledge to qualify as an expert in research design, the evaluation of research design, data analysis including statistical analysis, and the evaluation of data analysis to offer the opinions.  Also, he has acquired familiarity with the research studies and underlying data that the firearm and toolmark examiners rely on to support their assertion that the AFTE theory of identification is a reliable method for comparing cartridge cases and bullets. 

    Case Details:

    Case Caption: United States V. Garcia
    Docket Number: 1:22cr1171
    Court: United States District Court for the District of New Mexico
    Dated: December 10, 2024
  • Testimony of Family Medicine Expert Witness on the Issue of Damages Declared a Nullity

    Testimony of Family Medicine Expert Witness on the Issue of Damages Declared a Nullity

    A patient brought a health care liability action against his psychiatrist and the psychiatrist’s employer, alleging the psychiatrist engaged in improper sexualized conduct that caused him psychological injury.

    Plaintiff Tray Simmons is a survivor of childhood rape which he experienced in 2010. Simmons alleged that Dr. Shahidul Islam encouraged him to read the chapter of his book Layers aloud in which he described the 2010 rape while Islam visibly touched himself, made physical contact with Simmons, and backed Simmons into the corner of the office.

    Plaintiff’s expert, Sherri Studstill, gave conflicting testimony relating to the issue of damages.

    In her affidavit, Studstill asserted that “[t]here is evidence that Simmons suffered monetary and mental health harm as a result from either the alleged events occurring in Islam’s office or the documented events from the recorded [phone] calls.”

    However, during her deposition, Studstill said that she “didn’t go into damages” and that she only believed damages for emotional distress were “possible” based on Simmons’s allegations, the opinion said.

    Family Medicine Expert Witness

    Sherri Studstill is a licensed physician who has a background practicing in Family Medicine, Emergency Medicine, Occupational Medicine, Sports Medicine, and Urgent Care Medicine, and holds a Masters in Public Health Degree with a focus on Behavioral Science and Health Science.

    Get the full story on challenges to Sherri Studstill’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Relying on the cancellation rule, the trial court determined a conflict existed between the Studstill’s affidavit and deposition testimony relating to the issue of damages.

    The trial court concluded that Studstill’s deposition testimony triggered the cancellation rule and invalidated her earlier opinions related to Simmons’s alleged damages.

    The judge cited 2019 Tennessee Supreme Court case law in TWB Architects v. Braxton , which established that when a witness makes contradictory statements, “those statements cancel each other out and are considered to be ‘no evidence’ of that fact.”

    Appellate Judge Jeffrey Usman cannot find error in the trial court’s analysis in the present case, applying the cancelation rule and rendering Studstill’s testimony on the issue of damages a nullity.

    Held

    The Court held that Sherri Studstill’s testimony on the issue of damages was inadmissible.

    Key Takeaway:

    Studstill indicated in her affidavit that as an expert she had concluded that Simmons had suffered damages as a result of Islam’s negligent professional conduct. In her deposition, however, Studstill disclaimed any such conclusion. She indicated that damages were a possibility but that she had not made any determination that Simmons had suffered any actual damages. As to the question of whether Studstill offered expert testimony as to damages, these statements are contradictory. Critically, no admissible explanation from Studstill was offered addressing the contradiction. Therefore, the appellate court cannot find error in the trial court’s analysis in the present case, applying the cancelation rule and rendering Studstill’s testimony on the issue of damages a nullity.

    Case Details:

    Case Caption: Tray Simmons V. Dr. Shahidul Islam Et Al.
    Docket Number: M2023-01698-COA-R3-CV
    Court: Court of Appeals of Tennessee at Nashville
    Order Date: December 03, 2024