Plaintiff Tabria Montgomery’s father, Michael Montgomery sustained fatal injuries while operating a Bobst Mastercut 145 PER 2.0 Die-Cutter machine. She asserted claims individually on behalf of herself and her father’s estate against Defendant Bobst Group North America, Inc. (“Bobst NA”) for strict products liability, negligence, wrongful death, and survival.
Bobst NA filed a motion to exclude the testimony of Plaintiff’s expert Wayne Ross, M.D., P.C.
Pathology Expert Witness
Wayne Kenneth Ross, M.D., P.C. is board-certified by both the National Board of Medical Examiners and the American Board of Pathology in Anatomic and Forensic Pathology. He maintains current medical licensure in Pennsylvania and has practiced continuously as a forensic pathologist for over three decades.
Throughout his career, he has conducted thousands of autopsies and death investigations involving traumatic injuries, gunshot wounds, blunt force trauma, and other violent deaths where assessing consciousness and pain perception at the time of injury is critical.
Bobst NA maintained that Ross used unreliable methods to reach his conclusion that Montgomery experienced sixty to ninety seconds of pain and suffering. The Court disagreed.
Bobst NA sought to exclude Ross’ opinion based on its argument that Ross did not examine scientific literature as required, and instead cherry-picked studies to support his causal connections. It focuses its criticism of Ross’ report on its references to “studies pertaining to strangulation and suffocation events in children, examinations of hangings, and studies detailing the areas of the brain associated with fear response.” Bobst NA explained that Ross did not address “either in his report or his deposition . . . why he believed that studies focusing on children and strangulation were more appropriate in his analysis than studies of adults and traumatic compression asphyxia injuries.”
While it is a close call, upon review, Ross’ opinion is not based only on “subjective belief or unsupported speculation.” While Bobst NA may disagree with the methods he used to reach his conclusions—formulating a hypothesis, analyzing available evidence and literature, and applying the principles of neuropathology—the methods used are enough to provide “good grounds” for his opinions under Rule 702.
B. Fit
Bobst NA also contended that Ross’ opinions did not “fit” the facts of this case, arguing that they “will not assist a jury” and “would only serve to cause confusion and misunderstanding.”
Plaintiff has shown that Ross’ opinions fit the case because they have a nexus to and will assist the jury with the questions that jurors will be required to consider when determining whether Plaintiff can recover for survival.
Held
The Court denied Bobst NA’s motion to exclude the testimony of Plaintiff’s expert Wayne Ross, M.D., P.C.
Key Takeaway
When determining whether to admit expert testimony or not, the test “is not whether a particular scientific opinion has the best foundation or whether it is demonstrably correct.” Any gap between Ross’ opinion and the information underlying it must be “extreme” and “clear” for it to be excluded as unreliable.
Please refer to the blog previously published about this case:
This action arises from Jennifer Hailes’ claim of retaliation for prior EEO protected activity under Title VII of the Civil Rights Act of 1964. Hailes challenged the administrative grant of summary judgment in favor of the VA in EEOC Case No. 532-2023-00016X for Hailes’ claims of retaliation for protected activity in the form of a “fully successful” performance rating for Fiscal Year 2021 and an admonishment by her supervisor on January 4, 2022.
Defendant Secretary of the Department of Veterans Affairs filed a motion to exclude two expert reports of Tracie Ellis-Reid and Steven N. Emancipator offered by Plaintiff Jennifer Hailes.
Microbiology Expert Witness
Tracie Ellis-Reid is a board-certified medical technologist in the discipline of microbiology. She worked for over 30 years in Pathology & Laboratory Medicine Services at the Department of Veterans Affairs.
Steven N. Emancipator is Board-certified in anatomic and clinical pathology and in immunopathology. He currently consults with clinical and research laboratories and with principal investigators.
Previously, with the College of American Pathologists, Emancipator served on the Council on Accreditation, as a state commissioner, a master laboratory inspector, and as director of a clinical laboratory certified by the College. For 35 years, he served as a professor of pathology as Case Western Reserve University and for the last nine years he has been an emeritus professor. From 2006 through 2017, he was chief of Pathology & Laboratory Medicine Service, at the Veterans Affairs hospital in Cleveland.
Until 2020, Ellis-Reid was Hailes’ supervisor and the person who prepared her performance evaluations. Ellis-Reid proposed to testify about Hailes’ “annual performance rating” for fiscal year 2021.
Indeed, Ellis-Reid’s report is composed of an element-by-element critique of Hailes 2021 performance review, with an assessment of exhibits used to support the review, and a comparison with a co-worker.
Ellis-Reid proposed to determine, with reference to certain agency documents, whether the Secretary “violated laws and regulations regarding patient safety, the Plaintiff’s Title VII right, and adverse disciplinary action (post-protected activity reprisal) in the form of the lowering of the Plaintiffs FY21 annual performance rating.” There are a few problems with this proposal, starting with the fact that Ellis-Reid doesn’t claim to be a legal professional. So she’s not in a position to offer an opinion about whether anyone unlawfully retaliated against Hailes. But even if she were, it’s the Court’s job to determine what the law is and it’s the jury’s job to determine whether a violation occurred.
Even putting these concerns aside, the fact that a witness might qualify as an expert does not, as a result of that expertise, mean that her opinion is admissible. The expert’s opinion must still otherwise be helpful to the trier of fact.
The Secretary conceded that—even though Hailes offered Ellis-Reid as a non-scientific expert in agency performance evaluations—Ellis-Reid’s opinions in “the laboratory specimen testing portions” of Ellis-Reid’s report are admissible.
The remaining three sections of Ellis-Reid’s report discuss Hailes’ performance in customer service, safety, and education and employee development. By comparing Hailes’ performance to the criteria set out in collective bargaining agreement provisions and Veterans Affairs policies and procedures, Ellis-Reid concluded that she disagreed with the overall ratings that Hailes received in these areas. But as the Secretary pointed out, an expert isn’t required to say whether Hailes’ ratings in these areas were appropriate.
2. Steven N. Emancipator
Emancipator proposed to review acts of Congress, provisions of the Code of Federal Regulations, certain accreditation standards, and the Department of Veterans Affairs Labor Management Relations master agreement.
For starters, Emancipator’s stated objective is to make sure that Hailes meets her burden of proof, “establish undeniable facts” that Hailes “received unlawful, improper, or conflicting orders,’ and “prove” certain other matters. In other words, Emancipator proposed to offer an “advocacy-based interpretation” rather than one based on his expertise.
Emancipator said that “expert review of Microsoft Outlook email correspondences of the Plaintiff and P&LMS management officials is necessary to show that notifications of unlawful, improper, and/or conflicting orders from the Plaintiff went unanswered and unresolved, which is an imminent threat to patient care and safety.” But the jury doesn’t need an expert to say whether emails went unanswered and unresolved, so testimony on this issue wouldn’t be helpful.
Emancipator also said that his consideration and opinion about evidence supplied to him is “necessary to determine if the Agency violated laws and regulations regarding patient safety, and regarding the Plaintiff’s right to refuse such orders that would require the Plaintiff to violate applicable laws, that led to a lower performance rating of bench work and records & reporting for the Plaintiff’s 2020 fiscal year annual performance rating.”
The Court found that Emancipator did not discuss the evidence in this case that he used to base his opinion. He’s basing his conclusion on “the best of his recollection and understanding” as the VA Medical Center Director, a position which, according to his resume, he last held in 2017.
Nevertheless, the portion of Emancipator’s report that details the duties of a lab director is helpful and relevant.
Held
The Court granted in part and denied in part the Secretary’s motion to exclude the reports of Tracie Ellis-Reid and Steven Emancipator.
It should be noted that Emancipator and Ellis-Reid neglected to state all the cases in which they had testified as experts in the last four years, and their reports did not state their compensation “for their study and testimony in this case.” If Hailes wishes to rely on Ellis-Reid’s and Emancipator’s opinions about laboratory testing and laboratory director duties, respectively, she must provide to the Secretary supplemental reports from Ellis-Reid and Dr. Emancipator with the information required by Rule 26.
Key Takeaway
There is a “subtle” but “nonetheless important” distinction between “opining on the ultimate question of liability” — which is impermissible — and “stating opinions that suggest the answer to the ultimate issue or that give the jury all the information from which it can draw inferences as to the ultimate issue” — which is permissible.
Case Details:
Case Caption:
Hailes V. Secretary of Department of Veterans Affairs
Docket Number:
1:24cv293
Court Name:
United States District Court for the Northern District of Ohio, Eastern Division
