Carlock v. Sangamon County IL et al
Filing
389
OPINION: Plaintiff's Motion to Exclude Certain Testimony of Mark Kroll, Ph.D. (d/e 379) is DENIED. See written Opinion. Entered by Judge Sue E. Myerscough on 1/10/2012. (MJ, ilcd)
E-FILED
Tuesday, 10 January, 2012 01:54:13 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ESTATE OF AMON PAUL CARLOCK,
JR., Deceased, by Mary L.
Andreatta-Carlock, Executor,
)
)
)
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Plaintiff,
)
)
v.
)
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NEIL WILLIAMSON, AS SHERIFF OF
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SANGAMON COUNTY; ANTHONY
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SACCO, CHIEF DEPUTY; TERRY DURR, )
JAIL SUPERINTENDENT; WILLIAM
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STRAYER, ASSISTANT JAIL
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SUPERINTENDENT; LT. RON BECKNER,)
ADMINISTRATOR OF SANGAMON
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COUNTY JAIL; LT. CANDACE CAIN;
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LT. TAMMY POWELL; SGT. TODD GUY; )
CO KEVIN FURLONG; NURSE LEE
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ANNE BRAUER, R.N.; NURSE NIECEY
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WEST, L.P.N.; NURSE LUCY RAMSEY,
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L.P.N.; JOSEPH MAURER, M.D.;
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CHAUNCEY C. MAHER, III, M.D. and
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SANGAMON COUNTY,
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Defendants.
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No. 08-3075
OPINION
SUE E. MYERSCOUGH, United States District Judge.
This cause is before the Court on Plaintiff’s Motion to Exclude
Certain Testimony of Mark Kroll, Ph.D. (Motion) (d/e 379). Neither
party has requested a hearing. Because Kroll is sufficiently qualified to
testify and his testimony is both sufficiently reliable and sufficiently
relevant, the Motion is denied.
BACKGROUND
In this lawsuit, Plaintiff, the Estate of Amon Paul Carlock, Jr.,
deceased, by Mary L. Andreatta-Carlock, Executor, alleges that Carlock
was a pretrial detainee housed at the Sangamon County Illinois jail from
October 9, 2007, until his death on November 16, 2007. See Fourth
Amended Complaint (d/e 138). Plaintiff alleges that Defendants were
responsible for Carlock’s death. The defendants in this case include the
County Defendants–Neil Williamson, Anthony Sacco, Terry Durr,
William Strayer, Ron Beckner, Candace Cain, Tammy Powell, Todd Guy,
Kevin Furlong, Anne Brauer, Niecey West, and Lucy Ramsey–as well as
the medical defendants–Joseph Maurer, M.D. and Chauncey C. Maher,
III, M.D. Only the County Defendants are involved in this Motion.
In the Motion, Plaintiff identifies the issues in the case as including
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the following: (1) whether the County Defendants willfully, recklessly, or
maliciously (a) failed to perform cardiopulmonary resuscitation (CPR) or
use an automated external defibrillator (AED); and (b) physically
mistreated Carlock by restraining him face down and applying 285
pounds of pressure to his back; and (2) whether the tasering of Carlock
contributed causally to his death.1
The County Defendants retained several expert witnesses,
including Mark Kroll, Ph.D. Plaintiff now seeks to exclude certain
testimony by Kroll. While Plaintiff concedes Kroll is qualified to testify
as to his opinion that the taser did not cause or contribute to Carlock’s
death, Plaintiff asserts that Kroll “does not have the credentials or
credible published authorities as back up supporting his criticism of
Plaintiff’s physician experts, or to render opinions as to the need for CPR
1
The Fourth Amended Complaint contains § 1983 claims for excessive force, deliberate
indifference to Carlock’s medical needs and several state law claims. The allegations in the
Fourth Amended Complaint include the following: that Carlock was placed face down, with his
hands handcuffed behind his back and his legs shackled; Defendant Furlong held Carlock at the
back of Carlock’s neck and placed a portion of his 285 pounds on Carlock’s back both before
and after Carlock was tasered; Carlock became unresponsive and no jail personnel provided
medical care or lifesaving measures; and Defendant Mauer failed to train nursing staff and
correctional officers in the use of CPR and AED. See ¶¶ 33, 61, 80, 113(K).
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or that prone restraint is never dangerous.”
In particular, Plaintiff asserts Kroll should not be allowed to testify
that (1) based in part on the delayed capillary refill found by the
emergency medical technician (EMT), Carlock’s cardiac arrest did not
occur until 60 seconds or less before the ambulance arrived; and (2) there
are no risks to face-down restraint even if weight is applied to the back.
Plaintiff argues that Kroll is not qualified to testify on those matters, the
testimony is not reliable, and the testimony is not relevant. See Kroll’s
Initial Report, p. 12 (opinion that Carlock’s cardiac arrest occurred
around the time of EMT arrival based on Carlock having a pulse until
that time and based on the EMTs’ notation of delayed capillary refill:
“Any capillary refill would suggest that the cardiac arrest would have
occurred less than 1 minute before this was noted”); Kroll’s Supplemental
Report, p. 7 (comment in response to expert report and deposition of
Dr. Silerberg, noting that the peer-reviewed scientific literature does not
support the conclusion that sitting on someone who is in the prone
position with his hands cuffed behind his back interferes with
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respiration); Kroll’s Supplemental Report p. 12 (comment in response to
deposition of Dr. Hubler, noting that “positional asphyxia was a popular
speculation for in-custody-deaths” but, after scientific study, was found
to have no basis).
ANALYSIS
“The admission of expert testimony is governed by Federal Rule of
Evidence 702 and the principles outlined in Daubert [v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589 (1993).]” Bielskis v. Louisville Ladder,
Inc.,
F.3d
,
2011 WL 5829771, at *4 (7th Cir. 2011). To
determine whether to admit expert testimony, this Court must examine
whether (1) “the witness is qualified,”(2) “the expert’s methodology is
scientifically reliable,” and (3) “the testimony ‘will assist the trier of fact
to understand the evidence or to determine a fact in issue.’” Myers v.
Illinois Central R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010) (quoting
Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007));
see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999)
(concluding “that Daubert’s general principles” also apply to
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nonscientific experts). The test is a flexible one. Bielskis,
F.3d
,
(7th Cir. 2011) (the district court performs a gatekeeping function
when determining whether to exclude expert testimony). The party that
proffers an expert’s testimony must establish the admissibility of the
testimony by a preponderance of evidence. Lewis v. CITGO Petroleum
Corp., 561 F.3d 698, 705 (7th Cir. 2009).
A.
Kroll Is Sufficiently Qualified to Testify About His Opinions on
Capillary Refill and Prone Restraint
Plaintiff first argues Kroll is not qualified as an expert on the non-
taser issues because he does not have the knowledge, skill, experience, or
training as a physician to criticize physicians or give medical opinions on
time of cardiac arrest or the physical effects of prone restraint. Plaintiff
notes that Kroll does not have “a medical education and a licence” and
the authorities he cited to support his medical opinions are “bogus.” See
Brief in Support, p. 6 (d/e 380).
To determine whether Kroll is qualified as an expert, this Court
must compare the area in which Kroll has “superior knowledge, skill,
experience or education with the subject matter of [his] testimony.”
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Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990). The fact
that Kroll is not a medical doctor is not dispositive, so long as he has the
relevant experience, knowledge, or training to form his opinions. See
Crisostomo v. Stanley, 857 F.2d 1146, 1153 n. 18 (7th Cir. 1988) (preDaubert case noting that “[t]here is no reason why a witness who is not a
medical doctor should be automatically disqualified as a medical expert, if
he is otherwise well schooled in the field”); Wintz v. Northrop Corp.,
110 F.3d 508, 513 (7th Cir. 1997) (finding the expert was not a medical
doctor and also that his “experience, knowledge, and methodology were
not sufficient to permit him to offer an expert opinion applying the
principles of toxicology to a human being in this case”); Berry v.
McDermid Transp., Inc., 2005 WL 2147946, at *2 (N.D. Ind. 2005)
(citing cases and noting that “[i]ndividuals who lack medical degrees
understandably may face difficulties in asking a court to treat them as
qualified to testify as to medical questions”); but see also Goodwin v.
MTD Products, Inc., 232 F.3d 600, 609 (7th Cir. 2000) (engineer was
not qualified to give expert opinion concerning “the nature, scope, or
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cause of an eye injury that resulted from contact with a wing nut which
was discharged at a high rate of speed from a lawn mower” because he
did not have a medical degree or other medical training); Wilcox v. CSX
Transportation, 2007 WL 1576708, at *12 (N.D. Ind. 2007) (holding
that nonmedical doctor could not testify as to the cause of the plaintiff’s
particular condition).
Kroll holds an M.S. and Ph.D. in Electrical Engineering. He is
currently an adjunct full professor in biomedical engineering at the
University of Minnesota and a principal in Mark Kroll & Associates,
LLC.
Kroll’s scientific speciality is electrophysiology–the interaction of
electricity and the body–and bioelectricity–the effects of electricity on the
human body.” See Initial Report, p. 38; Affidavit, ¶ 2. Kroll explains in
his Affidavit that bioelectricity “covers a crossover region between pure
medicine and pure physical and electrical science/engineering.”
Kroll researches and develops electrical devices to diagnose and
treat disease. His primary focus is the effect of electrical shocks on the
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human body. According to Kroll, his investment in this area has
“resulted in every Implantable Cardioverter Defibrillator (ICD) made
anywhere in the world licensing some of [his] patented improvements.”
Kroll further asserts that his “work on the effects of electricity on the
human body has resulted in major improvements in defibrillation, which
is the cornerstone of resuscitation from cardiac arrest” and that he is
therefore, “by necessity an expert in resuscitation and cardiac arrest.”
Kroll’s curriculum vitae reflects numerous publications, including
(1) book chapters on, among other things, cardioverter defibrillators and
tasers; (2) abstracts, presentations, and nonindexed letters on topics
including the electrical detection of coronary artery disease; and (3) full
length papers and indexed letters on topics including defibrillation, the
effects of respiration phase on ventricular defibrillation threshold, tasers,
and coronary blood flow produced by muscle contractions induced by
intracardiac electrical CPR during ventricular fibrillation. In addition,
Kroll regularly lectures and teaches cardiologists about cardiac arrest,
resuscitation, and defibrillation.
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Finally, Kroll’s Affidavit tendered in support of his testimony (d/e
382-4) reflects that his research in respiration has led to numerous
inventions for improved breathing as reflected by seven U.S. patents. He
also identified five publications involving respiration.
This Court finds Kroll is sufficiently qualified, based on his
knowledge, training, and experience to give his opinion on capillary refill
as an indicator of the timing of cardiac arrest and the risks, or lack
thereof, of prone restraint on respiration. Although he is not a medical
doctor, he is qualified by training and experience on issues relating to the
cardiovascular system, resuscitation, and respiration. Therefore, the
County Defendants have met their burden of proof in showing Kroll is
qualified to testify on the issue of capillary refill and respiration. See,
e.g., Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000)
(“Rule 702 specifically contemplates the admission of testimony by
experts whose knowledge is based on experience”).
B.
Kroll’s Testimony Is Sufficiently Reliable
Plaintiff next challenges the reliability of Kroll’s opinions. Plaintiff
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argues that Kroll’s statements are unsupportable, subjective, and not
based on any credible scientific knowledge or theory. Plaintiff asserts
that capillary pressure is found in corpses long after death. Plaintiff
further asserts that the “Chan study”, one of the studies on which Kroll
relies, was based on studies of healthy adults and does not apply to
Carlock’s situation (58 years old, critically ill, and overweight). Finally,
Plaintiff argues Kroll’s opinions are not reliable because “his role in this
litigation is not to uncover the truth, but appears to be criticism of
Plaintiff’s physician experts.” Brief in Support, p. 7.
To aid courts in assessing the reliability of scientific expert
testimony, the Supreme Court, in Daubert, set forth a non-exhaustive list
of “guideposts” for consideration: (1) whether the scientific theory can be
and has been tested; (2) whether the theory has been subjected to peer
review and publication; (3) the theory’s known or potential rate of error
when applied; and (4) whether the theory has been “generally accepted”
in the scientific community. Daubert, 509 U.S. at 593-94; see also
Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002). In
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addition to these factors, the 2000 Advisory Committee’s Notes to
Federal Rule of Evidence 702 suggest that a court also consider (5)
whether “maintenance standards and controls” exist; (6) whether the
testimony relates to “matters growing naturally and directly out of
research they have conducted independent of the litigation, or whether
they have developed their opinions expressly for purposes of testifying”;
(7) “[w]hether the expert has unjustifiably extrapolated from an accepted
premise to an unfounded conclusion”; (8) “[w]hether the expert has
adequately accounted for obvious alternative explanations”; (9)
“[w]hether the expert is being as careful as he would be in his regular
professional work outside his paid litigation consulting”; and (10)
“[w]hether the field of expertise claimed by the expert is known to reach
reliable results for the type of opinion the expert would give.” Fed. R.
Evid. 702 advisory committee’s note (2000 amends.) (internal quotation
marks omitted). Because the Daubert inquiry is a flexible one, an
expert’s testimony need not satisfy each of the above factors to be
admissible. Chapman, 297 F.3d at 687.
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Kroll explained his “opinion methodology” and “scientific method”
as follows. Kroll’s Initial Report, p. 38. Kroll developed his opinions
using the disciplines of “electrophysiology, electrical engineering,
biomedical engineering, cardiovascular physiology, scientific methods,
mathematics, and physics.” Id. In addition, he used “qualitative and
quantitative research methodologies in addition to his education,
training, experience, and literature review.” Id. Kroll also reviewed the
medical records, Federal Bureau of Investigation interviews, depositions,
and investigation reports.
To form his opinion regarding capillary refill as a factor in
determining whether the cardiac arrest occurred, Kroll tendered a Second
Supplemental Declaration. Kroll explained that “[c]apillary refill requires
oxygenation of the tissue beneath the nail bed” and requires filling
pressure. Kroll relied on eight peer-reviewed articles for his opinion. In
particular, Kroll pointed to one particular study that found oxygenation
was reduced by 80% within 60 seconds of arrested circulation in the
human finger. He pointed to another study that showed that humans
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had some filling pressure 20 seconds after cardiac arrest and that filling
pressure fell to zero in animals after 30 to 50 seconds. Kroll also noted
in his Second Supplemental Report that capillary refill requires
oxygenation. Relying on the Van Riper study, venous oxygen levels in
humans decreased by 30% within 45 seconds of cardiac arrest. Kroll
noted:
A person with normal circulation could still have
fingerbed “pinking” after release with a 30%
reduced oxygen level. The diabetic subject had
ischemic toes from his poor peripheral circulation.
Diabetic patients with peripheral vascular disease
have a typical capillary refill time of 5 seconds (as
opposed to the normal cutoff of 2 seconds for
‘delayed.[)]’ [footnote omitted]. Applying that
correction suggests that the subject would not have
any capillary refill after 45 seconds.
Second Supplemental Report, p. 2.
Regarding the effects on respiration in the prone position with
weight applied, Kroll relied upon peer-reviewed articles and authorities
relating to positional asphyxia, restraint position, and prone restraint for
his opinion. One of the articles upon which Kroll relied– the “Chan
study”– examined the “ventilatory and metabolic demands in health
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adults when placed in the prone maximal restraint position” with 90.1 or
103.2 kg of weight on the back. See Chan study, attached to Second
Supplemental Report.
Examining the relevant factors, this Court notes that the
theories–delayed capillary refill after cardiac arrest and the effects of
prone restraint on respiration– have been tested and subjected to peer
review and publication. See Daubert, 509 U.S. at 592 (“an expert is
permitted wide latitude to offer opinions, including those not based on
first-hand knowledge or observation”). Kroll relied on numerous studies
from other individuals and is qualified to extrapolate from those studies.
See, e.g., Cummins v. Lyle Industries, 93 F.3d 362, 369 (7th Cir. 1996)
(noting that “hands-on testing” is not “an absolute prerequisite to the
admission of expert testimony” and that an expert may review data
generated by others in the field); Manning v. Buchan, 357 F.Supp.2d
1036, 1044 (N.D. Ill. 2004) (“an expert is not required to substantiate
his opinions through testing particularized to the specific case if the
science he is using has already been shown experimentally to be
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reliable”); Wetherill v. University of Chicago, 565 F.Supp. 1553, 1564
(N.D. Ill. 1983) (“Rule 702 expressly permits expert witnesses to form
their opinions by studying the work of others rather than through firsthand empirical observation”). Kroll’s extrapolation appears rationally
based on the studies he cited.
In addition, these theories appear to be generally accepted in the
scientific community, although there is some debate. See, e.g., Giannetti
v. City of Stillwater, 2006 WL 5100544, at *2 n. 3 (W.D. Okla. 2006)
(noting the scientific literature is divided on positional asphyxia but also
noting that “the amendments to Rule 702, post-dating Daubert, are
‘broad enough to permit testimony that is the product of competing
principles or methods in the same field of expertise’” (quoting
Fed.R.Evid. 702)).
Plaintiff’s objections to the reliability of Kroll’s opinions go to the
weight of the evidence, not its admissibility. Plaintiff may, on crossexamination, challenge Kroll’s theories, point out that debate in the
scientific community, and question Kroll’s credibility. See Daubert, 509
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U.S. at 596 (“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible
evidence”); see also Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th
Cir. 2000) (“The soundness of the factual underpinnings of the expert’s
analysis and the correctness of the expert’s conclusions based on that
analysis are factual matters to be determined by the trier of fact”).
Moreover, Plaintiff can present Plaintiff’s own expert witness’ testimony
to discredit Kroll. See Daubert, 509 U.S. at 596. Applying the “flexible”
Daubert standard and in the exercise of the Court’s discretion, the Court
finds Kroll’s opinions are sufficiently reliable.
C.
Kroll’s Testimony Is Sufficiently Relevant
Although Plaintiff makes a passing reference to Kroll’s opinions not
being relevant, Plaintiff does not make any specific argument in support
thereof. This Court finds that Krolls’ opinions are sufficiently relevant.
Kroll’s testimony will assist the jury with understanding the evidence or
determining a fact at issue. See Fed.R.Evid. 702 (providing that the
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knowledge must “assist the trier of fact to understand the evidence or to
determine a fact in issue”). Moreover, the testimony “fits” the issues
about which Kroll is testifying. See Chapman, 297 F.3d at 687 (noting
that the district court must determine whether the testimony “‘fit[s]’ the
issue to which the expert is testifying” (quoting Porter v. Whitehall Labs,
Inc., 9 F.3d 607, 614 (7th Cir. 1993))).
CONCLUSION
For the reasons stated, Plaintiff’s Motion to Exclude Certain
Testimony of Mark Kroll, Ph.D. (d/e 379) is DENIED.
ENTER: January 10, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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