STONER v. GEORGIA DEPARTMENT OF CORRECTIONS et al
ORDER DENYING 40 Defendant's Motion to Exclude the Report and Testimony of Dr. Herrington. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 6/5/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CHIQUITA A. FYE, M.D.,
NORMAN HOWARD FITZ‐
No. 5:15‐CV‐102 (CAR)
ORDER ON DR. FYE’S MOTION TO EXCLUDE
THE REPORT AND TESTIMONY OF DR. HERRINGTON
Before the Court is Defendant Chiquita A. Fye, M.D.’s Motion to Exclude the
Report and Testimony of Ryan D. Herrington, M.D. [Doc. 40]. Dr. Herrington is one of
Plaintiff’s two experts. The Court has reviewed the parties’ briefs, discussed the legal
issues and fact questions with the lawyers by telephone, and allowed the parties the
opportunity to supplement the record. After reviewing the briefs, the expert’s
deposition, and having considered the applicable law, the Court DENIES Dr. Fye’s
Motion to Exclude the Report and Testimony of Dr. Herrington [Doc. 40].
In this case, Plaintiff William Stoner brings deliberate indifference claims
pursuant to 42 U.S.C. § 1983, as well as Georgia state law medical malpractice claims
against Defendants Dr. Norman Howard Fitz‐Henley and Dr. Chiquita A. Fye. While
incarcerated at Macon State Prison, Plaintiff contends Defendants violated his Eighth
Amendment rights by failing to acknowledge his medical complaints and withdrawal
symptoms, review his medical records, or take any action despite knowing his risk of
seizures from withdrawal of his prescribed medications. As a result, Plaintiff complains
he suffered severe and permanent injuries. The Court will first summarize the pertinent
facts before addressing Defendant Dr. Fye’s Motion to Exclude Plaintiff’s expert.
On February 11, 2013, Plaintiff arrived at Baldwin County Jail to serve his 60‐day
sentence and was transported to Bleckley Probation and Detention Center. After
Plaintiff underwent an initial health and diagnostics screening, the physician ordered
Plaintiff to be transferred to a facility with 24‐hour nursing care due to risk of
withdrawals from his medication. Plaintiff suffered from degenerative disc disease,
panic attacks, and blood clots, and was taking Xanax, Oxycodone, and Coumadin.
Plaintiff also recently experienced a seizure after being removed from his prescription
On the evening of February 11, 2013, Plaintiff was transferred to Macon State
Prison (“MSP”) and placed in administrative segregation. On February 12, 2013, Dr.
Fitz‐Henley and several nurses met with Plaintiff. On February 13, 2013, Plaintiff’s
mother, Margaret Stoner, spoke with the Medical Director, Dr. Fye, and informed her
Plaintiff was taking Oxycodone, Xanax, and Coumadin and would have a seizure if he
did not receive his medication. Dr. Fye reviewed Plaintiff’s medical records, but she
did not examine or assess Plaintiff’s condition in person.
The next morning, on February 14, 2013, Plaintiff was found on the floor of his
cell unresponsive, incontinent of bowl and bladder, and with labored breathing. Dr.
Fye assessed Plaintiff as having possible withdrawals from his medications. Plaintiff
was transferred to Flint River Hospital and then airlifted to the Medical Center of
Central Georgia. Plaintiff alleges the complete withdrawal of benzodiazepine caused
him to have a seizure and resulted in significant physical and psychological injuries,
including brain damage, memory loss, post‐traumatic stress disorder, cognitive decline,
and has lost teeth.
After filing suit, Plaintiff engaged Dr. Herrington and Dr. Sachy as experts. On
March 31, 2017, the Court denied Defendants Dr. Fye and Dr. Fitz‐Henley’s Motions for
Summary Judgment, and granted Dr. Fitz‐Henley’s Motion to Exclude Dr. Sachy. Now,
Dr. Fye has filed a Motion to Exclude Dr. Herrington’s Expert Report and Testimony.
Federal Rule of Evidence 702 governs the admissibility of expert testimony, and
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 expertʹs 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
Simply stated, under Rule 702, the trial court can admit relevant expert testimony only
if it finds that: (1) the expert is qualified to testify about the matters he intends to
address; (2) the methodology used by the expert to reach his conclusions is sufficiently
reliable; and (3) the expert’s testimony will assist the trier of fact, through the
application of scientific, technical, or specialized expertise, to understand the evidence
or determine a fact in issue.2
As the Supreme Court explained in Daubert v. Merrell Dow Pharmaceuticals, Inc.,3
Rule 702 imposes a duty on trial courts to act as “gatekeepers” to ensure that
Fed. R. Evid. 702.
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002) (citing Maiz v. Virani, 253 F.3d
641, 664 (11th Cir. 2001)); J & V Dev., Inc. v. Athens‐Clarke Cnty., 387 F.Supp.2d 1214, 1223 (M.D. Ga. 2005).
3 509 U.S. 579 (1993).
speculative and unreliable opinions do not reach the jury. 4 Acting as a gatekeeper, the
trial court must make certain that expert witnesses employ in the courtroom the “same
level of intellectual rigor that characterizes the practice of an expert in the relevant
field.”5 The court’s gatekeeping role is especially significant, since “the expert’s opinion
can be both powerful and quite misleading because of the difficulty in evaluating it.”6
To fulfill its role, the trial court must determine whether the expert has the
requisite qualifications to offer his or her opinions.7 The trial court must also “‘conduct
an exacting analysis’ of the foundations of expert opinions to ensure they meet the
standards for admissibility under Rule 702.”8 Finally, the court must ensure the
relevancy of expert testimony, meaning that it must determine whether the testimony
will assist the trier of fact.9 In undertaking this analysis, the court must remember that
the party offering the expert opinions has the burden of proof by a preponderance of
The court performs its gatekeeping role consistent with Rule 104(a), which
commits preliminary evidentiary questions to the court’s decision and which further
Id. at 589, n.7; McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1237 (11th Cir. 2005).
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); see also Goebel v. Denver & Rio Grande W. R.R. Co.,
346 F.3d 987, 992 (10th Cir. 2003).
6 United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting Daubert, 509 U.S. at 595) (internal
7 Poulis‐Minott v. Smith, 388 F.3d 354, 359 (1st Cir. 2004); see also Frazier, 387 F.3d at 1260.
8 Frazier, 387 F.3d at 1260 (quoting McCorvey, 298 F.3d at 1257) (emphasis in original).
9 See Daubert, 509 U.S. at 591.
10 Allison v. McGhan Medical Corp., 184 F.3d 1300, 1312 (11th Cir. 1999)
empowers courts in answering these questions to rely on evidence without being
constrained by the rules of evidence.11 In sum, in acting as a gatekeeper, the court must
keep “unreliable and irrelevant information from the jury because of its inability to
assist in factual determinations, its potential to create confusion, and its lack of
probative value.”12 Although Daubert involved scientific experts, the Supreme Court has
made it clear that the strictures of Rule 702 and Daubert apply with equal force to non‐
scientific expert witnesses.13 Also, in all cases the proponent of the expert witness bears
the burden of establishing that the expert’s testimony satisfies the qualification,
reliability, and helpfulness requirements of Rule 702 and Daubert.14 Finally, “any step
that renders the analysis unreliable renders the expert’s testimony inadmissible.”15
Beginning with the qualification requirement, the Eleventh Circuit has explained
that “experts may be qualified in various ways.”16 Certainly, an expert’s scientific
training or education may provide one means by which an expert may qualify to give
certain testimony; however, experience in a particular field may also qualify an expert
McClain, 592‐93 & n.10; Fed. R. Evid. 104(a). In particular, Rule 104(a) provides that “[t]he court must
decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is
admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”
12 Allison, 184 F.3d at 1311‐12.
13 See Kumho Tire, 526 U.S. at 147.
14 McClain, 401 F.3d at 1238 & n. 2; see also Frazier, 387 F.3d at 1260.
15 Goebel, 346 F.3d at 992 (quoting Mitchell v. Gencorp, Inc., 165 F.3d 778, 782 (10th Cir. 1999)) (internal
16 Frazier, 387 F.3d at 1260.
to offer an opinion on a particular matter.17 Indeed, “experts come in various shapes
and sizes,” and, consequently, “there is no mechanical checklist for measuring whether
an expert is qualified to offer opinion evidence in a particular field.”18 In all cases, the
court must focus its inquiry on whether the expert has the requisite skill, experience,
training, and education to offer the testimony he intends to introduce.19
Regarding the reliability requirement, the Eleventh Circuit directs trial courts to
assess “whether the reasoning or methodology underlying the testimony is . . . valid
and whether that reasoning or methodology properly can be applied to the facts in
issue.”20 This inquiry must focus “solely on the principles and methodology [of the
experts], not on the conclusions that they generate.”21
Daubert offers four non‐exclusive factors that courts may consider in evaluating
the reliability of an expert’s testimony: (1) testability; (2) error rate; (3) peer review and
publication; and (4) general acceptance.22 These four factors most readily apply in cases
involving scientific testimony and may offer little help in other cases, particularly those
involving non‐scientific experts.23 Accordingly, these factors merely illustrate rather
Id. at 1260‐61.
Santos v. Posadas de Puerto Rico Assocs. Inc., 452 F.3d 59, 63 (1st Cir. 2006).
19 Poulis‐Minott, 388 F.3d at 359.
20 Frazier, 387 F.3d at 1262 (quoting Daubert, 509 U.S. at 592‐93) (internal alterations omitted).
21 Daubert, 509 U.S. at 595; see also Goebel, 346 F.3d at 992.
22 509 U.S. at 593‐95; see also J & V Dev., Inc., 387 F.Supp.2d at 1224.
23 See Kumho Tire, 526 U.S. at 150‐52.
than exhaust the factors or tests available to the trial court. The trial court has
“considerable leeway” in deciding which tests or factors to use to assess the reliability
of an expert’s methodology.24
The advisory committee’s notes for Rule 702 offer an additional list of factors or
tests. These tests are:
Whether the expert is proposing to testify about matters growing
naturally and directly out of research he has conducted
independent of the litigation, or whether he has developed his
opinion expressly for purposes of testifying;
Whether the expert has unjustifiably extrapolated from an
accepted premise to an unfounded conclusion;
Whether the expert has adequately accounted for obvious
Whether the expert is being as careful as he would be in his
regular professional work outside his paid litigation consulting;
Whether the field of expertise claimed by the expert is known to
reach reliable results for the type of opinion the expert would
Like the four Daubert factors, these factors do not comprise a definitive checklist, nor is
any single factor dispositive of reliability; instead, the tests articulated in the advisory
committeeʹs notes merely illustrate the issues a court may consider in evaluating an
Id. at 151‐52.
Fed.R.Evid. 702 advisory committee’s note (2000 amendments).
26 See id.
Finally, for admission, the expert testimony must assist the trier of fact. Expert
testimony assists the trier of fact “if it concerns matters that are beyond the
understanding of the average lay person.”27 “[E]xpert testimony generally will not help
the trier of fact when it offers nothing more than what lawyers for the parties can argue
in closing arguments.”28 Nor does expert testimony help the trier of fact if it fails to “fit”
with the facts of the case.29 Expert testimony lacks “fit” when “a large analytical leap
must be made between the facts and the opinion.”30 “A court may conclude that there is
simply too great an analytical gap between the data and the opinion proffered.”31 Thus,
the court may exclude otherwise reliable testimony if it does not have “sufficient
bearing on the issue at hand to warrant a determination that it [is ‘helpful’ to the trier of
fact].”32 At all times when scrutinizing the reliability and relevance of expert testimony,
a court must remain mindful of the delicate balance between its role as a gatekeeper
and the jury’s role as the ultimate fact‐finder. A district court’s “gatekeeper role . . . is
not intended to supplant the adversary system or the role of the jury.”33 “Vigorous
cross‐examination, presentation of contrary evidence, and careful instruction on the
Frazier, 387 F.3d at 1262.
Id. at 1262‐63.
29 McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004).
30 Id.; see also General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
31 General Elec., 522 U.S. at 146.
32 Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1234 (10th Cir. 2005).
33 Allison, 184 F.3d at 1311.
burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.”34 A court may not “evaluate the credibility of opposing experts”
or the “persuasiveness of competing scientific studies;”35 instead, its duty is limited to
“ensur[ing] that the fact‐finder weighs only sound and reliable evidence.”36
In this case, Plaintiff’s expert, Dr. Herrington, will offer his medical opinion
regarding the proper standard of care of a reasonable, prudent correctional facility
doctor.37 In general, the scope of his opinion is limited to (1) whether the risk of
Plaintiff’s benzodiazepine withdrawal was properly managed at MSP, and (2) the short‐
term damage or injury caused by the resulting withdrawal seizure.38 Dr. Herrington
specifically states the doctors’ failures to appreciate the risk of opiate and
benzodiazepine withdrawal and to implement a monitoring program is a deviation
from the appropriate standard of care that a correctional facility doctor should
provide.39 However, Dr. Herrington will not offer his medical opinion regarding
causation and any permanent or long‐term damage the seizure may have caused, or
Daubert, 509 U.S. at 596.
Quiet Tech. DC‐8, Inc. v. Hurel‐Dubois UK, Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003).
36 Frazier, 387 F.3d at 1272.
37 Dr. Herrington’s Dep., [Doc. 31] at p. 28, 60.
38 Id. at p. 29, 45.
39 Id. at p. 44.
whether the decision to discontinue the medication was proper. 40 Nor will Dr.
Herrington offer any medical opinion about the management of Plaintiff’s medications
before his incarceration at MSP.41 Thus, Dr. Herrington’s expert opinions are limited
here to violations of the proper standard of care a correctional facility doctor should
provide when a prisoner is prescribed benzodiazepines and opiates, and the immediate
resulting damages or injuries from Plaintiff’s withdrawal seizure.
Dr. Herrington offers simple opinions based on discreet facts in the record, so the
Court need not do an elaborate analysis to admit those opinions. The Court finds that
simply applying the Fed. Evid. R. 702 elements will satisfy the Court’s duty to act as a
First, Dr. Herrington is clearly qualified by his education, training, and
experience to offer his opinions about the standard of care violations in this case
involving medical issues. He has a medical degree from an excellent medical school,
the University of Virginia. He had experience working in prison systems when he
served as the Regional Medical Director for the Maine Department of Corrections. He
also practiced primary care medicine for eight years. Dr. Herrington has sufficient
knowledge about benzodiazepines and their usage and effects, including their potential
complications, to be qualified to testify.
Id. at p. 56.
Second, Dr. Herrington’s opinions in this case about the failure of medical care in
treating or failing to treat Plaintiff will assist the jury. The jury will not likely know
about the dramatic effects that can arise from abruptly withdrawing a patient from
benzodiazepines and how such withdrawals can threaten the patient’s life. Also, the
jury will have no idea about the proper medical care required to treat a patient who has
been taken off benzodiazepines. These are fundamental issues in the case, and Dr.
Herrington’s opinion will help them decide those issues.
Third, Dr. Herrington’s opinions are based on sufficient facts and data. He
reviewed the medical records and relied on those records. Specifically, Dr. Herrington
reviewed Plaintiff’s prison medical records, as well as the medical records from the
Medical Center of Central Georgia. In a case involving medical issues, the medical
records offer a fundamental basis for a medical expert to give opinions. His review of
those records affords sufficient facts and data to support his opinions.
Fourth, Dr. Herrington bases his opinions on reliable principles and methods.
As stated above, in cases involving medical questions about the care a doctor provides a
patient, it is fundamental to review the medical records. Dr. Herrington did that in this
case. He then took his medical knowledge and experience about treating patients
withdrawing from benzodiazepines and applied that to the facts found in the medical
record. This is a reliable method.
Fifth, Dr. Herrington reliably applied the principles and method to this particular
case because he understood the facts of the care and the involvement of the Defendants
in that care. He also understood Plaintiff’s medical condition in issue in the case, and
he reached very simple conclusions from that information that were tightly limited to
the key questions about the care in this case.
Simple opinions based on simple facts make Daubert rulings simple for the Court.
Dr. Herrington did what experts commonly do in cases like this, and that is sufficient to
satisfy the Rule 702 requirements to admit his opinions.
Accordingly, Defendant’s Motion to Exclude the Report and Testimony of Dr.
Herrington [Doc. 40] is DENIED.
SO ORDERED, this 5th day of May, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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