Ashley v. Bridgeport et al

Filing 279

ORDER: As set forth in the attached document, the Plaintiff's Motion in Limine to Exclude Testimony by Defendants' Expert Witness and to Exclude Evidence of Plaintiff's Medical and Pharma Treatments (ECF No. 257 ) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 7/22/2020. (Clough, M.)

Case 3:17-cv-00724-AWT Document 279 Filed 07/22/20 Page 1 of 13

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
-------------------------------- x
MALCOLM O. ASHLEY,
:
:
Plaintiff,
:
:
v.
:
:
CITY OF BRIDGEPORT; LT. RONALD
:
MERCADO; OFFICER RODERICK DODA; :
OFFICER MARIE CETTI; and ST.
:
VINCENT’S MEDICAL CENTER,
:
:
Defendants.
:
-------------------------------- x

Civil No. 3:17-cv-724(AWT)

RULING ON MOTION IN LIMINE TO EXCLUDE
MEDICAL RECORDS AND EXPERT REPORT AND TESTIMONY
Plaintiff Malcolm O. Ashley moves in limine to exclude all
evidence related to his medical records and the expert report
and testimony of Joel R. Milzoff, Ph.D.

For the reasons set

forth below, his motion is being denied.
I.

BACKGROUND
This case arises out of an incident on April 4, 2015,

during which Ashley was taken by Ambulance to St. Vincent’s
Medical Center (“St. Vincent’s”) from the Bridgeport police
station.

The parties disagree about whether Ashley’s behavior

was erratic and combative, and about whether taking him to the
hospital and providing him psychiatric treatment without his
consent was justified.

The defendants have disclosed an expert

report by Dr. Milzoff regarding the opinions he will give with

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respect to the results of toxicology tests and the consistency
of those results with reports by the defendants and by medical
professionals concerning Ashley’s behavior that day.
II.

LEGAL STANDARD
“Preliminary questions concerning the qualification of a

person to be a witness, the existence of a privilege, or the
admissibility of evidence shall be determined by the court
. . . .”

Fed. R. Evid. 104(a).

“Under [Rule 104], the

proponent has the burden of establishing that the pertinent
admissibility requirements are met by a preponderance of the
evidence.”

Fed. R. Evid. 702 advisory committee’s note to 2000

Amendment (citing Bourjaily v. United States, 483 U.S. 171
(1987)); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 592 n.10 (1993) (citing Bourjaily for the proposition that
“[p]reliminary questions concerning the qualification of a
person to be a witness . . . should be established by a
preponderance of proof”).
Federal Rule of Evidence 702 sets forth the standard to be
used by the court in evaluating the admissibility of expert
testimony:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data,

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(2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
Fed. R. Evid. 702.
In Daubert, the Supreme Court held that Rule 702 “assign[s]
to the trial judge the task of ensuring that an expert’s
testimony both rests on a reliable foundation and is relevant to
the task at hand.”

509 U.S. at 597.

With respect to

reliability, the Supreme Court identified four factors that,
while not definitive, are ones a district court might consider:
“whether a theory or technique has been and could be tested,
whether it had been subjected to peer review, what its error
rate was, and whether scientific standards existed to govern the
theory or technique’s application or operation.”

Ruggiero v.

Warner–Lambert, 424 F.3d 249, 253 (2d Cir. 2005) (citing Nimely
v. City of N.Y., 414 F.3d 381, 397 (2d Cir. 2005)).

Expert

testimony is relevant only if it will assist the jury.

See Hill

v. City of N.Y., No. 03–CV–1283 (ARR)(KAM), 2007 WL 1989261, at
*5 (E.D.N.Y. July 5, 2007).

Expert testimony is not relevant if

it is directed towards lay matters that the jury can understand
on its own.

See Rieger v. Orlor, Inc., 427 F. Supp. 2d 99, 103

(D. Conn. 2006).
Whether the expert bases testimony on professional studies
or personal experience, he must employ “the same level of

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intellectual rigor that characterizes the practice of an expert
in the relevant field.”
U.S. 137, 152 (1999).

Kumho Tire Co., Ltd. v. Carmichael, 526
In Kumho, the Court emphasized the

relevance/reliability standard in determining the admissibility
of expert testimony, stating that Rule 702 “establishes a
standard of evidentiary reliability . . . requir[ing] a valid
connection to the pertinent inquiry as a precondition to
admissibility . . . [and] a reliable basis in the knowledge and
experience of the relevant discipline.”

Id. at 149 (internal

quotations and citations omitted).
A court must undertake “a rigorous examination of the facts
on which the expert relies, the method by which the expert draws
an opinion from those facts, and how the expert applies the
facts and methods to the case at hand.”

Amorgianos v. Nat’l

R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002).

“A

minor flaw in an expert’s reasoning or a slight modification of
an otherwise reliable method will not render an expert’s opinion
per se inadmissible.

The judge should only exclude the evidence

if the flaw is large enough that the expert lacks good grounds
for his or her conclusions.”

Id.

In Daubert, the Court

“expressed its faith in the power of the adversary system to
test shaky but admissible evidence, and advanced a bias in favor
of admitting evidence short of that solidly and indisputably
proven to be reliable.”

Borawick v. Shay, 68 F.3d 597, 610 (2d

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Cir. 1995) (internal citation and quotation omitted).

But

“[w]hen an expert opinion is based on data, a methodology, or
studies that are simply inadequate to support the conclusions
reached, Daubert and Rule 702 mandate the exclusion of that
unreliable opinion testimony.”

Amorgianos, 303 F.3d at 266.

The Second Circuit has noted “the uniquely important role
that Rule 403 has to play in a district court’s scrutiny of
expert testimony, given the unique weight such evidence may have
in a jury’s deliberations.”
Daubert, 509 U.S. at 595).

Nimely, 414 F.3d at 397 (citing
Rule 403 provides that evidence “may

be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading a jury.”

Fed. R. Evid. 403.

III. DISCUSSION
Dr. Milzoff’s report begins by describing the factual
background for his opinions.

That factual background includes

reports by the Bridgeport Police Department, American Medical
Response, and medical professionals at St. Vincent’s that
Ashley: “refused to cooperate in revealing the subject of his
concern”; “seemed [to] be disoriented to time”; was “oriented as
to person and place but not oriented to time and becoming
lethargic”; was “very angry, shouting, upset about having been
brought to the hospital”; and “was confused as to the day of the
week and angry when corrected.”

(Defs.’ Obj. to Pl.’s Mot. in

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Limine, Ex. A, at 2-3, ECF No. 261-1.)

The report quotes a

doctor’s notes as stating that “[Ashley’s] urine drug screen was
positive for cannabinoids and PCP.”

(Id. at 4.)

With that factual background, Dr. Milzoff’s report offers
various opinions.

Dr. Milzoff describes PCP and the ability to

detect PCP in a person using a particular test.

Dr. Milzoff

describes the typical effects of PCP on a person.

Dr. Milzoff

describes what is indicated by a positive test for Cannabinoids
and the typical effects of Cannabinoids on a person.

Also, Dr.

Milzoff describes the medicines administered by St. Vincent’s to
the plaintiff.

Finally, Dr. Milzoff opines:

Mr. Ashley’s behaviors including combativeness,
disorientation as to time and lethargy or drowsiness
are consistent with the consumption of the drug
Phencyclidine and are supported by the detection of
the drug in his urine.
(Id. at 5.)
Ashley argues that his medical records and Dr. Milzoff’s
report and testimony should be excluded on three grounds.1
First, Ashley argues that all of the medical records from
his treatment from April 4-5, 2015, as well as Dr. Milzoff’s
report and testimony, should be excluded because the medical

Because he is proceeding pro se, the court reads Ashley’s
papers “liberally and interpret[s] [them] ‘to raise the
strongest arguments that they suggest.’” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006)).
1

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records (on which Milzoff relies) “were disclosed illegally
without [Ashley’s] ‘informed consent.’”

(Mem. of Law Supp.

Pl.’s Mot. in Limine 4, ECF No. 257-1.)

But the defendants have

produced waivers signed by Ashley on February 25, 2019 with
respect to his medical records held by American Medical Response
and St. Vincent’s.

The waivers specifically stated that Ashley

authorized American Medical Response and St. Vincent’s to
release his medical records to the City of Bridgeport, Office of
the City Attorney in connection with civil litigation.

The

waivers both covered records related to treatment provided on
April 4-5, 2015.

Therefore, this argument fails.

Second, Ashley argues that all medical records from the
date in question should be excluded as they are “fruits from the
illegal violation of Plaintiff’s 4th Amendment Rights of the
U.S. Constitution” because they were the result of an
unconstitutional action because he did not consent to the
medical procedures at issue.

(Evid. Rebuttal to Defs.’ Opp’n to

Pl.’s Mot. in Limine (“Pl.’s Reply”) at 13, ECF No. 266.)
Ashley appears to be invoking the exclusionary rule, pursuant to
which evidence obtained by means of unconstitutional searches
and seizures can be suppressed in criminal trials.

See

generally Segura v. United States, 468 U.S. 796, 804 (1984).
But the exclusionary rule does not apply in civil actions

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brought pursuant to § 1983.
F.3d 138, 146 (2d Cir. 1999).

See Townes v. City of N.Y., 176
Therefore, this argument fails.

Third, Ashley moves to exclude Dr. Milzoff’s testimony and
report under Federal Rules of Evidence 401, 702, and 403.2
Ashley contends that Dr. Milzoff “is not competent to testify on
the medical/behavioral condition of the plaintiff on 4 April
2015 as [he] is neither a medical doctor nor medical
psychiatrist.”
A.

(Mem. of Law Supp. Pl.’s Mot. in Limine 1-2.)

Federal Rule of Evidence 401

Under Federal Rule of Evidence 401, “[e]vidence is relevant
if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of
consequence in determining the action.”

As explained by the

defendants, Dr. Milzoff’s opinion that “Ashley’s behaviors
including combativeness, disorientation as to time and lethargy
or drowsiness are consistent with the consumption of the drug
Phencyclidine and are supported by the detection of the drug in
his urine” has a tendency to make it more probable that Ashley’s

Ashley also cites Federal Rules of Evidence 806 and 901.
With respect to Rule 806, Ashley states: “Further barred as
genuine, are the statements by Ryan Doss, MD . . . who presented
a proselytized, plagiarized, statement, in the form of a medical
record, based wholly on a PEER report, drafted by defendant
Doda.” (Pl.’s Reply at 13.) But Rule 806 merely provides a
basis to attack the credibility of the declarant of an
otherwise-admitted hearsay statement. It is inapplicable here.
With respect to Rule 901, Ashley does not explain what evidence
has not been authenticated.
2

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behavior included combativeness, disorientation as to time, and
lethargy or drowsiness.

The facts concerning Ashley’s behavior

on the date in question are of consequence here because they go
to whether the defendants’ actions were legally justified.

Dr.

Milzoff’s expert report is therefore relevant.
B.

Federal Rule of Evidence 702

Ashley argues that Dr. Milzoff is “not competent to testify
on the medical/behavioral condition of the plaintiff on 4 April
2015 as Milzoff is neither a medical doctor nor medical
psychiatrist.”

(Mem. of Law Supp. Pl.’s Mot. in Limine 1-2.)

He further argues that Dr. Milzoff is “woefully unqualified to
testify on human ‘behavior’ given the specific, complex medical
circumstances” of this case.

(Id. at 5.)

Ashley reasons: “Dr.

Milzoff has absolutely no human medical scientific training, nor
any experience in assessing ‘real time’ toxicology impact on
human behavior and human physiologic responses,” and is
therefore unqualified “to render any medical expert opinion on
the complex medical issues of this case.”

(Pl.’s Reply at 4.)

But Dr. Milzoff is not offering an expert opinion about the
condition of the plaintiff on the day in question, or as to how
Ashley actually behaved.

Rather, Dr. Milzoff opines only about

the consistency of certain behavior--which behavior would have
to be established by other evidence--with the generally
understood effects on a person of the drugs shown in the

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toxicology results.

As a forensic toxicologist, he is qualified

to testify on that subject.

The jury will be given an

instruction to follow in the event that it concludes that
Ashley’s behavior did not include combativeness, disorientation
as to time, and lethargy or drowsiness.
The other requirements of Rule 702 are also satisfied.
First, Dr. Milzoff’s testimony will help the trier of fact to
determine a fact in issue.

A fact in issue here is what

Ashley’s behavior was on April 4, 2015.

Dr. Milzoff’s expert

testimony that Ashley’s reported behavior on that day are
consistent with the typical effects of toxicities detected in
Ashley’s system will be helpful in resolving that issue of fact.
Second, Dr. Milzoff’s testimony is based on sufficient
facts or data.

Dr. Milzoff relied on toxicology testing by St.

Vincent’s as well as reports from the defendant officers and the
medical professionals involved regarding Ashley’s behavior and
medical treatment.

Ashley argues that the facts and data are

insufficient because: (1) Milzoff’s report does not include the
fact that some of the defendant officers reported smelling
alcohol on his breath; and (2) it does not consider the video
evidence from the Bridgeport police station, which Ashley
contends shows that his behavior was not as the defendant
officers and medical professionals described.

However, with

respect to the reports of the smell of alcohol, the toxicology

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results did not show alcohol in Ashley’s system, so it is
reasonable that Dr. Milzoff--who is testifying as a forensic
toxicologist--does not opine on the effect of alcohol on a
person where there was no toxicological evidence of alcohol.
With respect to the video evidence, it is not necessary for Dr.
Milzoff to consider this additional evidence because he is not
giving an opinion that Ashley actually behaved in a certain
manner.
Finally, there appears to be no dispute that Dr. Milzoff’s
expert opinions are the “product of reliable principles and
methods” and that he “reliably applied the principles and
methods to the facts of the case.”

Id.

In any event, it

appears to the court that this requirement is satisfied.
Therefore, Dr. Milzoff’s testimony is admissible under Rule
702.
C.

Federal Rule of Evidence 403

Rule 403 does not require excluding this evidence.

Under

Federal Rule of Evidence 403, “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”

“Expert

evidence can be both powerful and quite misleading because of
the difficulty in evaluating it.

Because of this risk, the

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judge in weighing possible prejudice against probative force
under Rule 403 of the present rules exercises more control over
experts than over lay witnesses.”

Daubert, 509 U.S. at 595.

Ashley contends that there is a significant danger that Dr.
Milzoff’s report and testimony would confuse the jury.

Ashley

argues that “technical medical evidence historically . . . fits
this description nexus to a lay person jury.”

(Mem. of Law

Supp. Pl.’s Mot. in Limine 4.)
But the evidence in question is not technical medical
evidence, e.g. how the drugs at issue affect neurotransmitters
in the brain, but if it were it would be precisely the type of
evidence for which the assistance of an expert would be helpful.
In any event, the probative value of this evidence is not
substantially outweighed by the risk of confusing the jury.

A

key question of fact is how did Ashley behave on April 4, 2015.
Dr. Milzoff’s testimony that Ashley’s reported behavior is
consistent with the toxicology report is thus highly probative
of a key issue in the case.

On the other hand, the court cannot

discern the potential for confusion resulting from testimony
that certain behavior is consistent with having taken a
particular drug.
IV.

CONCLUSION
For the reasons set forth above, the Plaintiff’s Motion in

Limine to Exclude Testimony by Defendants’ Expert Witness and to

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Exclude Evidence of Plaintiff’s Medical and Pharma Treatments
(ECF No. 257) is hereby DENIED.
It is so ordered.
Dated this 22nd day of July 2020, at Hartford, Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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