McGehee et al v. Hutchinson et al

Filing 165

ORDER denying 142 , 143 plaintiffs' motions in limine to exclude certain anticipated testimony of Dr. Buffington and Dr. Antognini. Signed by Judge Kristine G. Baker on 4/12/2019. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DIVISION OF ARKANSAS
WESTERN DIVISION
JASON MCGEHEE, et al.
v.

PLAINTIFFS
Case No. 4:17-cv-00179 KGB

ASA HUTCHINSON, et al.

DEFENDANTS
ORDER

Before the Court are plaintiffs’ motions in limine to exclude certain anticipated testimony
of Dr. Daniel E. Buffington and Dr. Joseph Antognini (Dkt. Nos. 142, 143). Defendants responded
in opposition to both motions (Dkt. Nos. 148, 149).
Plaintiffs move to exclude certain of Dr. Buffington and Dr. Antognini’s anticipated
testimony, arguing that these witnesses are not qualified to provide expert testimony on subject
matter outside of their areas of expertise pursuant to Federal Rule of Evidence 702. For the first
motion, plaintiffs assert that the Court should exclude certain anticipated testimony of Dr.
Buffington, a pharmacist, because plaintiffs contend that he is not qualified to offer expert opinions
on matters outside of his expertise, such as the pharmacological and anesthetic properties of
midazolam, monitoring the depth of anesthesia during surgery, assessing anesthetized patients for
signs of consciousness, and the correlation between movement and pain in anesthetized persons
(Dkt. No. 142, at 1-2). For the second motion, plaintiffs assert that the Court should exclude
certain anticipate testimony of Dr. Antognini, an anesthesiologist, because plaintiffs contend that
he is not qualified to offer expert opinion on matters outside of his expertise, such as the level of
pain involved in death by firing squad and the availability of the firing squad as an alternative
method of execution (Dkt. No. 143, at 1-2).

In response to the first motion, defendants argue that Dr. Buffington is qualified to render
reliable expert opinions in this case based on his training and experience as a Doctor of Pharmacy
(Dkt. No. 148, at 2). Defendants also contend that Dr. Buffington’s opinions are based on reliable
facts and data because his opinions are supported by citations to peer-reviewed, published,
scientific literature (Id., at 10).

In response to the second motion, defendants argue that Dr.

Antognini is qualified to render reliable expert opinions as a medical doctor who is board certified
in the field of anesthesiology (Dkt. No. 149, at 4). Defendants further assert that Dr. Antognini’s
opinions are based on sufficient facts and data (Id., at 6). In their responses to both motions,
defendants maintain that plaintiffs’ arguments for excluding certain anticipated testimony of Dr.
Buffington and Dr. Antognini go to the weight, and not the admissibility, of the testimony to be
offered by these witnesses (Dkt. No. 148, at 1; 149, at 1-2).
Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
Fed. R. Evid. 702. “Rule 702 reflects an attempt to liberalize the rules governing the admission of
expert testimony. The rule clearly is one of admissibility rather than exclusion.” Lauzon v. Senco
Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and citations omitted). “The
exclusion of an expert’s opinion is proper only if it is so fundamentally unsupported that it can

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offer no assistance to the jury.” Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir.
1997) (internal quotations and citations omitted).
In determining whether expert testimony should be excluded or admitted, the district court
must decide if the expert’s testimony and methodology are reliable, are relevant, and can be applied
reasonably to the facts of the case. David E. Watson, P.C. v. United States, 668 F.3d 1008, 1015
(8th Cir. 2012); Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010). Under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district court must conduct this
initial inquiry as part of its gatekeeping function. Watson, 668 F.3d at 1015
To satisfy the reliability requirement for admission of expert testimony, the party offering
the expert testimony must show by a preponderance of the evidence that the expert is qualified to
render the opinion and that the methodology underlying his conclusions is scientifically valid.
Barrett, 606 F.3d at 980 (internal quotation marks and citation omitted). To satisfy the relevance
requirement for the admission of expert testimony, the proponent must show that the expert’s
reasoning or methodology was applied properly to the facts at issue. Id.
The Court examines the following four non-exclusive factors when determining the
reliability of an expert’s opinion: (1) “whether it can be (and has been) tested”; (2) “whether the
theory or technique has been subjected to peer review and publication”; (3) “the known or potential
rate of error”; and (4) “[the method’s] ‘general acceptance.’” Presley v. Lakewood Eng’g and Mfg.
Co., 553 F.3d 638, 643 (8th Cir. 2009) (quoting Daubert, 509 U.S. at 593-94). These factors are
not exhaustive or limiting, and the Court must use the factors as it deems fit to tailor an examination
of the reliability of expert testimony to the facts of each case. Id. In addition, the Court can weigh
whether the expertise was developed for litigation or naturally flowed from the expert’s research;
whether the proposed expert ruled out other alternative explanations; and whether the proposed

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expert sufficiently connected the proposed testimony with the facts of the case. Id. While
weighing these factors, the Court must continue to function as a gatekeeper who separates expert
opinion evidence based on good grounds from subjective speculation that masquerades as
scientific knowledge. Id. Thus, speculative expert testimony with no basis in the evidence is
inadmissible. Weisgram v. Marley Co., 169 F.3d 514, 518-19 (8th Cir. 1999), aff’d, 528 U.S. 440
(2000) (reversing a district court for allowing a witness who was qualified as a fire investigator
“to speculate before the jury as to the cause of the fire by relying on inferences that have absolutely
no record support”).
This case is set for a bench trial before the Court on April 23, 2019. In the case In re Zurn
Pex Plumbing Products Liability Litigation, the Eighth Circuit Court of Appeals analyzed the
application of the Daubert standard when evidence is not presented to a jury but is instead
presented at a bench trial:
The district court’s “gatekeeping function” under Daubert ensures that expert
evidence “submitted to the jury ” is sufficiently relevant and reliable, Bonner v. ISP
Technologies, Inc., 259 F.3d 924, 929 (8th Cir. 2001) (emphasis added), but
“[t]here is less need for the gatekeeper to keep the gate when the gatekeeper is
keeping the gate only for himself,” United States v.. Brown, 415 F.3d 1257, 1269
(11th Cir. 2005). Similar reasons support less stringent application of Daubert in
bench trials. See Charles Alan Wright, Victor James Gold, 29 Fed. Prac. & Proc.
Evid. § 6266, n.90.2 (2010), and cases cited. The “usual concerns of the [Daubert]
rule—keeping unreliable expert testimony from the jury—are not present in such a
setting.” Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir.
2010).
644 F.3d 604, 613 (8th Cir. 2011); see also City of Lincoln, Neb. v. Windstream Nebraska, Inc.,
Case No. 4:10-cv-3030, 2011 WL 7145632, at *1 (D. Neb. Aug. 23, 2011) (applying the analysis
from In re Zurn Pex Plumbing to Daubert motions in a bench trial context).
Having considered the motions and the governing law, at this time, the Court denies
plaintiffs’ motions in limine to exclude certain anticipated testimony of Dr. Buffington and Dr.

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Antognini (Dkt. Nos. 142, 143). Because this is a bench trial, the Court is the finder of fact and
concerns regarding Daubert are minimized. See In re Zurn Pex Plumbing, 644 F.3d at 613. The
Court will allow the parties to develop fully the testimony of Dr. Buffington and Dr. Antognini at
trial through direct and cross examination and will give their opinions the weight the Court deems
appropriate in the exercise of its sound and considerable discretion.
It is so ordered, this the 12th day of April, 2019.

Kristine G. Baker
United States District Court Judge

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