Dezmen McBride was booked into custody at the W.C. “Dub” Brassell Detention Center on May 21, 2021. McBride died 15 days later on June 5, 2021, at the age of 18 years old.
Deborah McBride commenced this action alleging that County Defendants and Separate Defendant Lieutenant Samuel Baker, Jr., in his individual capacity: were deliberately indifferent to McBride’s serious medical needs; used excessive force against McBride; were negligent; were liable for McBride’s wrongful death; violated the Equal Protection Clause; and intentionally inflicted emotional distress on McBride. After McBride’s death, Tanaria Heard was substituted as the Special Administrator of the Estate of Dezmen McBride.
County Defendants requested that the Court exclude the testimony of William Rutledge because, according to County Defendants, Rutledge’s testimony and opinions “would not assist the trier of fact, contain irrelevant opinions and a legal opinion, invade the province of the jury, contain speculation, and would causes [sic] juror confusion in the least.”
General Surgery Expert Witness
William L. Rutledge spent four years as the medical director of Forest Park Medical Clinic and Cumberland Park Medical Clinic, besides serving as an adjunct faculty member in the biology department of Arkansas Baptist College.
For nearly two years prior, Rutledge was a research assistant professor for University of Arkansas’ Department of Surgery. He spent a handful of years before as a staff physician, educator, and medical director, preceded by 16 years as a general surgeon for Arkansas Surgical Associates/William L. Rutledge M.D., P.A.
Rutledge also performed duties as a surgeon for Arkansas Trauma Surgeons, LLC from 1997 to 2000, and was the medial director for Meharry Alcohol and Drug Abuse Program in Nashville, Tennessee, from 1982 to 1984.
The County Defendants argued that Rutledge’s claim that County Defendants’ deliberate indifference was the cause of McBride’s death is a legal conclusion only the Court can make. Conversely, Heard contended that Rutledge’s opinions touching on a jury question shouldn’t lead to his testimony being excluded.
Rutledge’s report dated June 12, 2024, concerns whether the care that McBride received was proper and within care standards. Additionally, in his report, Rutledge provides his professional opinion in this matter based on a review of the following: the medical examiner’s report; medical records from Jefferson Regional Medical Center; attorney notes of timeline; call log and incident report from Jefferson County Sheriff’s Department; and a summary of the investigation.
Rutledge offered many opinions in his report, and he stated that he gave those opinions “with a reasonable degree of medical certainty.” Specifically, Rutledge opined, in part, that “although the CT scan showed no intracranial hemorrhage, McBride clearly exhibited multiple signs of increased intracranial pressure.” For example, McBride exhibited nausea, vomiting, headaches, visual changes, changes in behavior, weakness, inability to stand and walk, confusion, and possible seizure activity. Furthermore, Rutledge also opined that the failure to get McBride evaluated and treated between June 2, 2021, and June 5, 2021, “more probably than not caused his demise.” In addition, Rutledge opined that “McBride progressively worsened” on June 2, 3, and 4, 2021, “as personnel were deliberately indifferent.” Ultimately, Rutledge’s report concluded that “[t]he delay in diagnosis and treatment of Dezmen McBride due to deliberate indifference by jail personnel and nursing personnel led to his death on June 5, 2021.”
Analysis
County Defendants asserted that Rutledge’s opinion is “unhelpful to the trier of fact considering the prevailing law, and threatens to cause jury confusion—particularly in a case that is not complex .”
However, the Eighth Circuit Court of Appeals has determined in a series of cases that, when alleging a violation of 42 U.S.C. § 1983 based on an alleged delay in medical treatment, a Plaintiff’s failure to offer such evidence is fatal to his claim.
Therefore, the Court ruled that Rutledge’s opinions are relevant to the issues in this matter—namely whether County Defendants were deliberately indifferent to McBride’s medical needs and consequently contributed to or caused McBride’s death.
Moreover, that the state crime lab found McBride’s cause of death to be undetermined does not negate the relevancy of Rutledge’s opinions on McBride’s cause of death.
Proving deliberate indifference requires that the Plaintiff “prove that officials knew about excessive risks to his health but disregarded them and that their unconstitutional actions in fact caused his injuries.” In this case, what County Defendants knew, what they did or did not do in response to that knowledge, and how quickly they acted or failed to act are all among the many questions of fact for the jury to determine.
Because Rutledge’s testimony that County Defendants were deliberately indifferent is “not a fact-based opinion, but a statement of legal conclusion,” the Court excluded Rutledge’s testimony using this precise legal phrase.
Held
The Court granted, in part, and denied, in part, County Defendants’ Daubert motion in limine to exclude Dr. William L. Rutledge’s report.
Key Takeaway:
While the Court found Rutledge’s medical opinions on the propriety of care, the progression of McBride’s condition, and the potential cause of death to be relevant to the claim of deliberate indifference, it excluded Rutledge’s direct statement that the “personnel were deliberately indifferent” and that the “delay in diagnosis and treatment…due to deliberate indifference…led to his death” because the Court deemed these statements to be legal conclusions, not fact-based opinions, which are reserved for the Court to decide.
Case Details:
Case Caption:
Heard V. Association Of Arkansas Counties Risk Management Fund Et Al
The present case involves an insurance dispute between Plaintiff Charles Mounce and Defendant USAA General Indemnity Company about subrogated funds and claims handling.
On October 3, 2017, Mounce was injured in a motor vehicle collision while he was riding as a passenger in Pyles vehicle. The vehicle was covered under USAA Policy 024029075G71011 (Hereinafter “USAA Policy”). As such, Mounce was covered under the USAA Insurance Policy. The USAA Policy provides coverage to Mounce in the amount of $10,000 (hereinafter “USAA PIP”).
On October 9, 2017, USAA informed Mounce that he was covered under Pyles’s PIP policy and explained its subrogation interest in damages received from Fox or his insurer, State Farm. Between November 2017 and October 2018, USAA paid Mounce’s medical providers a total of $9,910.45 for his various treatments. State Farm issued USAA payment for the subrogated amount of $9,910.45 in early September 2020.
On February 16, 2021, Mounce sent USAA an Insurance Fair Conduct Act (IFCA) notice stating that “USAA accepted settlement funds from the third party carrier when USAA was not entitled to those funds as Mounce was not fully compensated for his loss,” and “USAA must immediately disgorge those funds and send them to Mounce to help compensate him for his loss.”
Plaintiff Mounce disclosed Michael W. Chan as his chiropractic expert witness to review his medical treatment. Chan was supposed to opine whether the treatment was appropriate and if the associated charges were reasonable. Meanwhile, Defendant USAA General Indemnity Co. filed a motion to exclude specific opinions provided by Michael Chan.
Chiropractic Expert Witness
Michael Chan has been practicing chiropractics since 1999. Besides his expertise as an accident reconstructionist, an injury biomechanist, and a practicing chiropractor, he owns the Integrative Injury Clinic. He pursued his Doctor of Chiropractic from the Palmer Chiropractic College-West in San Jose, California.
Chan drew on his experience as an accident reconstructionist, injury biomechanist, and practicing chiropractor to reach conclusions about Mounce’s alleged injuries and treatment. His experience as the owner of the Integrative Injury Clinic was also relevant since he employed a physical therapist for whom he sets the billing rates.
Chan opined that the October 3, 2017, collision caused injuries to Mounce’s neck and back. He noted that amount of the force seen in this collision was clearly sufficient to result in the injuries that were diagnosed, especially when you take into account the factors that put Mounce more at risk for acute and chronic injuries. Although Mounce had pre-existing musculoskeletal conditions, Chan believed that the treatment Mounce received was causally related to the 10/03/2017 collision on a more probable than not basis. Chan added that the cost was reasonable and within the norms billed by similar providers throughout the country, as well as the Pacific Northwest.
Defendant USAA General Indemnity Co.’s Argument
USAA did not aim to exclude Chan’s testimony entirely. It agreed that he was qualified to provide opinions on chiropractic treatment and its associated costs. However, the company argued that Chan lacked “the requisite knowledge, skill, experience, training, or education” to form the following opinions:
First, Plaintiff’s March 6 through May 23, 2018 physical therapy treatment was reasonable and necessary due to the October 3, 2017 accident
Second, the $2,805 that Aurora Village Physical Therapy charged Plaintiff for dates of service from March 6 through May 23, 2018 was reasonable and within the norms billed by similar providers.
Third, Plaintiff’s December 11, 2018 treatment with Steven Taylor, M.D. was reasonable and necessary
Finally, the $143 that the Plaintiff was charged for the December 11, 2018 date of service was reasonable and within the norms billed by similar providers.
Analysis
Since Chan was neither a trained nor licensed medical doctor, the Court held that it would be inappropriate for him to offer opinions to a jury about the need for or costs of treatments provided by Steven Taylor, a physiatrist. The fact that Chan’s specialty might share certain medical billing codes with services provided by Taylor did not render Chan qualified to opine about whether medical treatment was reasonable or necessary.
As a chiropractor, Chan employed therapy modalities also used by other physical therapists, and as the owner of Integrative Injury Clinics, he employed and set the billing rates for a physical therapist. Therefore, the Court held that Chan has the required knowledge to reliably opine on the reasonableness, need for, and cost of Mounce’s physical therapy treatments.
Just to be on the safe side, USAA mounts a colorable challenge to Chan’s bona fides as a physical therapy expert, but it does not go to admissibility.
Held
The Court granted USAA’s motion in part. Basically, Chan may not testify that “Plaintiff’s December 11, 2018 treatment with Steven Taylor, M.D. was reasonable and necessary; and (4) the $143 Taylor charged Plaintiff for the December 11, 2018 date of service was reasonable and within the norms billed by similar providers.” USAA’s motion is denied in all other respects.
Key Takeaway:
Because Chan is neither a trained nor licensed medical doctor, the Court emphasized that Chan’s qualifications did not extend to evaluating medical treatment he was not trained to assess. Chan, however, has the requisite knowledge to testify as an expert on the reasonableness, need for, and cost of Mounce’s physical therapy treatments.
Case Details:
Case caption:
Mounce V. USAA General Indemnity Company
Docket Number:
2:22cv1720
Court:
United States District Court for the Western District of Washington
Plaintiff Shawn Martin suffered serious injuries from the rear-end motor vehicle collision with Defendant Valenzuela’s trailer, which occurred on I-84 on Cabbage Hill outside Pendleton, Oregon, amid adverse weather conditions. Defendants Luis Valenzuela and Baljinder Singh were operating commercial motor vehicles, while Defendant Joel Hannu was driving a large pick-up truck. The Plaintiff, Shawn Martin, operated a pick-up truck and had a passenger, Dylan Smith, at the time of the incident.
Defendants Valenzuela and Singh encountered a scene with multiple vehicles blocking the highway upon their arrival. As Defendant Valenzuela was slowing down for traffic, Defendant Singh, along with a Black Ford Escape, collided behind him, forcing Valenzuela out of his lane. Consequently, Valenzuela’s semi-truck was struck by Defendant Singh and/or the Ford Escape. Despite managing to bring his truck to a complete stop on the highway exit ramp without colliding with other vehicles, Valenzuela couldn’t proceed forward due to previous collisions blocking the road. Additionally, Defendant Singh’s tractor-trailer obstructed the exit. In a matter of seconds, the Plaintiff, Shawn Martin, collided with the rear of Valenzuela’s trailer.
The Plaintiff entered the highway from the onramp immediately preceding the exit where the accident occurred. At that location, an Oregon Department of Transportation (ODOT) worker flagged down the Plaintiff, warning of an accident or a stalled vehicle in the fast lane about two miles down the road. Although the Plaintiff noticed some fog upon entering the highway, the weather conditions worsened just before the accident, reaching “zero visibility.” Despite being aware of the stalled vehicle ahead and facing poor visibility, multiple witnesses, including the Plaintiff’s passenger, had confirmed the Plaintiff’s speed at 45 miles per hour just before colliding with the back of Valenzuela’s stopped trailer. Plaintiff sustained serious injuries in the accident. Plaintiffs Shawn Martin and Karen Martin brought a negligence action against multiple Defendants, stemming from a multi-vehicle accident.
The Plaintiff hired a trucking expert, Lew Grill, with the intention of obtaining testimony on Federal Motor Carrier Safety Administration (FMCSA) regulations. Grill’s evaluation focused on determining whether the Defendants’ drivers had violated FMCSA regulations.
The final deadline for expert disclosures had been known to the parties for months. By Order dated April 10, 2023, the Court reset the deadline for expert disclosures to July 18, 2023, and rebuttal expert disclosures to August 8, 2023. On July 18, 2023, the Plaintiffs disclosed and produced reports from their two purported primary experts, Lew Grill ( Trucking Expert) and Sharla Paso (Medical Billing Expert). On August 8, 2023, the date for rebuttal reports, Plaintiffs submitted a four-page “rebuttal” report from Paso and newly disclosed expert Michele Cook (“Paso/Cook Report”) that contained the primary opinions alluded to but not included in the original Paso Report.
Defendant Valenzuela moved to exclude the expert report of Plaintiffs’ trucking expert, Lew Grill (“Grill”), under Federal Rule of Evidence 702. The basis for Valenzuela’s motion was the assertion that Grill’s opinion, as presented in his expert report, lacked sufficient reliability, and his methodology was flawed due to a failure to consider adequate facts and data. Additionally, Defendant Singh joined in the motion. Defendant Singh also moved to strike the expert reports of Passo/Cook due to Plaintiffs’ failure to adhere to their expert discovery obligations under Fed. R. Civ. P. 26(a)(2)(B).
Trucking Expert Witness
Lew Grill, an expert witness in motor fleet safety, accident investigation, and traffic accident reconstruction, has a comprehensive background in the trucking industry. He has over 50 years’ experience as a truck driver, independent trucker, truck driver training instructor, and consultant for motor carriers and truck driving schools. Grill holds licenses, certifications, and qualifications as a Commercial Motor Vehicle (CMV) driver with endorsements for hazardous materials, tank truck, double & triple trailers, passenger carriage, and school bus. Currently, Grill is the Founder and Chief Visionary Officer (CVO) at The Legacy Corporation International, and since March 1990, he has been the Founder/CVO, Author, Publisher, A/V Producer, and trucking consultant at Atlantic Pacific Resource Group, Inc.
Medical Billing Expert Witness
Sharla Paso, DNP, RNC-OB, Women’s Health CNS, has a Doctorate in Nursing Practice (DNP) from the University of Washington, and has 25 years of experience in various nursing areas including ICU, medical surgical, dialysis, and all areas of obstetric/newborn nursing. Sharla holds certifications in obstetric nursing and as a Life Care Planner. Paso is currently the Owner of Medical Vocational Planning, LLC, and is the Founder of Listen Line Community Services. She obtained her Associate Degree from the College of St Catherine-MPLS and then earned her B.S.N. from Walden University.
Life Care Planning Expert Witness
Michele Cook, RN, MA, ABVE has been a Registered Nurse, Medical Case Manager and Vocational Rehabilitation Counselor for over 30 years. She is also a Life Care Planner for over 15 years. She obtained her R.N. from Los Angeles County College of Nursing and Allied Health and then earned her M.A. from Marylhurst University. Cook is currently the Owner/Operator of Medical Vocational Planning, LLC, which serves the attorney clients in areas of medical negligence, personal injury, motor vehicle accidents, product liability, wrongful death, domestic relations, and workers’ compensation.
Discussion by the Court
Federal Rule of Evidence 702 outlines the criteria for admissibility of expert testimony, requiring qualification, reliability, and relevance. The proponent bears the burden of establishing these requirements by a preponderance of the evidence. The Court acts as a gatekeeper, ensuring the testimony is both relevant and reliable. The relevancy bar is low, demanding logical advancement of a material aspect of the case. Testimony is reliable if rooted in the knowledge and experience of the relevant discipline, with a flexible inquiry allowing broad discretion to trial Courts. The reliability test focuses on the methodology’s soundness, not the correctness of conclusions, and shaky but admissible evidence should be addressed through cross-examination and contrary evidence rather than exclusion.
Lew Grill, a trucking expert retained by the Plaintiffs, provided an expert opinion where he formulated the opinion that both Defendants Singh and Valenzuela were negligent in their operation of their vehicles and failed to adhere to the Federal Motor Carrier Safety Administration (“FMCSA”) regulations. His opinion was based on the review of several documents, including the Oregon State Police Traffic Crash Report, Oregon State Police Incident Report, Driver Statements, Photos of the accident scene, and Deposition Transcripts for Plaintiff Shawn Martin, witness Dylan Smith, and Defendant Singh.
In their motion to exclude Grill’s testimony, the Defendants pointed out that Grill had not reviewed testimony from witnesses Joel Hannu and Sam Glerup or Defendant Valenzuela, which would have provided information on the conditions immediately preceding the accident. Additionally, the Defendants noted that Grill did not consider testimony from multiple witnesses regarding the weather at the time of the accident or the conditions of the road. The Defendants argued that reviewing this evidence was crucial for any expert to form a reliable opinion. Due to Grill’s failure to examine this evidence, the Defendants asserted that his opinion was unreliable and should be excluded. In response, the Plaintiffs contended that “material facts (time and place of the accident, parties, etc.) are common and generally accepted among all expert reports” and that this case was “relatively simple,” requiring the review of only basic evidence.
Arguments regarding whether Grill should have reviewed additional documents in formulating his opinion were considered by the Court to pertain to the weight, rather than the admissibility, of Grill’s testimony. The Court emphasized that the requirement for expert testimony to be based on “sufficient facts or data” involves a quantitative analysis rather than a qualitative one. The Court clarified that this requirement doesn’t authorize the exclusion of expert testimony based on the Court’s belief in one version of the facts over another. The Court cited Bluetooth SIG, Inc. v. FCA US LLC, 468 F. Supp. 3d 1342 (W.D. Wash. 2020), stating that the factual basis of an expert opinion goes to the credibility of the testimony, not its admissibility. Therefore, any issues concerning the materials deemed more appropriate for the expert to consult were deemed matters of weight, not admissibility, of the expert’s testimony.
The Court concluded that Grill’s failure to review all available evidence, including what the Defendants deemed essential, did not render his decision unreliable, at least under Rule 702. While the Defendants presented persuasive arguments highlighting deficiencies in Grill’s analysis due to his limited review of the evidence, on the other hand the Defendants conceded that the basic facts of the accident were not in dispute. As such, the Court determined that Plaintiffs were entitled to have their expert formulate an opinion based on “relatively simple” facts without rendering the opinion inadmissible under Rule 702. Therefore, the Court denied the Defendants’ motions to exclude Grill’s testimony.
Under Rule 37(c)(1), failure to disclose information required by Rule 26(a) may result in exclusion of evidence unless the failure is justified or harmless. To overcome Rule 37’s preclusive effect, a party must show substantial justification or harmlessness. The burden lies on the party facing sanctions to prove harmlessness. Factors guiding the Court in this determination include prejudice, the ability to cure the prejudice, trial disruption likelihood, and any bad faith or willfulness in nondisclosure. Exclusion of expert testimony is not appropriate if other less severe sanctions are available, especially when harm can be easily remedied.
On the deadline for expert disclosures, which was July 18, 2023, the Plaintiffs submitted a purported expert report from medical billing expert Sharla Paso. The two-page report asserted that the cost of Plaintiff Martin’s medical treatment was reasonable and necessary. However, the report lacked a basis for this opinion and mentioned that Paso was recently hired and in the process of reviewing the records. Subsequently, on the deadline for rebuttal expert disclosures, which was August 8, 2023, the Plaintiffs submitted a combined rebuttal expert report from Paso and her associate, Michele Cook. This report contained the complete opinions regarding the reasonableness of Plaintiff Martin’s medical treatment.
In their motion to strike, the Defendants argued that the reports should be excluded because the initial Paso report did not contain the required information under Fed. R. Civ. P. 26(a)(2)(B), and the Paso/Cook report was not an appropriate subject for rebuttal testimony. The Defendants sought to strike the Paso/Cook reports and prohibit the testimony of these experts at trial. During oral argument, the Plaintiffs conceded that Paso’s initial expert report did not contain the required information as per Rule 26(a)(2)(B), and the opinions in the Paso/Cook report were not a proper subject for rebuttal testimony. Citing Grove City Veterinary Serv. v. Charter Practice Int’l., 3:13-cv-2276-AC (D. Or. Apr. 19, 2016), in this case it was acknowledged that if the purpose of expert testimony is to contradict an expected portion of the other party’s case-in-chief, then the witness is not a rebuttal witness. Plaintiffs attributed this error to counsel’s unfamiliarity with Rule 26’s expert disclosure requirements. Thus, it is undisputed that Plaintiffs failed to comply with Rule 26.
Exclusion of the experts was deemed unwarranted in this case. Any potential prejudice to the Defendants was considered easily curable by requiring Paso and/or Cook to undergo expert depositions, at the Plaintiffs’ expense. Additionally, Defendants were allowed to supplement their rebuttal reports if deemed necessary. Given that no trial date was set, both parties had ample opportunity to address and remedy any prejudice in advance of trial. Moreover, the Court noted that there is no evidence indicating bad faith or willfulness in the delayed disclosure of evidence. Consequently, the Defendants’ motion to strike the expert reports was denied, and instead, Plaintiffs were ordered to facilitate depositions for Paso and Cook, at their expense. Defendants were permitted to supplement their expert reports after these depositions.
Held
The Court denied the Defendants’ motions to exclude the testimony of Lew Grill and also denied the Defendant’s motion to strike the expert reports of Passo/Cook. The following orders were issued:
1. Within fourteen (14) days from the date of the order, Plaintiffs were directed to submit separate and complete expert reports for either or both Paso and Cook.
2. Defendants were granted permission to depose Paso and/or Cook, with Plaintiffs being responsible for any expert fees associated with the deposition if conducted.
3. Defendants were allowed to supplement their rebuttal expert reports if deemed necessary.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In the presented case, Plaintiffs brought a negligence action against Defendants following a multi-vehicle accident on I-84. The Plaintiff hired a trucking expert, Lew Grill, to provide an opinion on the Defendants’ alleged negligence in operating their vehicles and violating Federal Motor Carrier Safety Administration (FMCSA) regulations. Defendants moved to exclude Grill’s testimony, arguing it lacked reliability due to a limited review of evidence. The Court, however, deemed Grill’s failure to consider additional documents as a matter concerning the weight, not admissibility of his testimony, and denied the motion. Another dispute arose the Plaintiffs’ failure to comply with their expert discovery obligations. The Court refrained from excluding the testimony in question, instead directing the concerned experts to submit to expert depositions, at Plaintiffs’ expense. These decisions underscore the importance of complying with disclosure rules and suggest that Courts prioritize addressing evidentiary issues through less severe sanctions when possible.
