Carlock v. Sangamon County IL et al
Filing
485
OPINION: The Joint Motion to Exclude Certain Testimony and Reports of Dr. James Hubler (d/e 418 ) filed by the Defendants Neil Williamson, Anthony Sacco, Terry Durr, William Strayer, Ron Beckner, Candace Cain, Tammy Powell, Kevin Furlong, Lee Anne Brauer, Niecey West, Lucy Ramsey, and Todd Guy is DENIED. However, as required by Federal Rule of Civil Procedure 26(e)(2), Plaintiff is DIRECTED to file a supplemental report by Dr. Hubler on or before November 26, 2012. Entered by Judge Sue E. Myerscough on 11/1/2012. (MJ, ilcd)
E-FILED
Friday, 02 November, 2012 09:00:58 AM
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,
)
)
)
)
Plaintiff,
)
)
v.
)
)
NEIL WILLIAMSON, AS SHERIFF OF
)
SANGAMON COUNTY; ANTHONY
)
SACCO, CHIEF DEPUTY; TERRY DURR, )
JAIL SUPERINTENDENT; WILLIAM
)
STRAYER, ASSISTANT JAIL
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SUPERINTENDENT; LT. RON BECKNER,)
ADMINISTRATOR OF SANGAMON
)
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
)
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
)
SANGAMON COUNTY,
)
)
Defendants.
)
No. 08-3075
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Joint Motion to Exclude
Certain Testimony and Reports of Dr. James Hubler (d/e 418) filed by
Defendants Neil Williamson, Anthony Sacco, Terry Durr, William
Strayer, Ron Beckner, Candace Cain, Tammy Powell, Kevin Furlong, Lee
Anne Brauer, Niecey West, Lucy Ramsey, and Todd Guy. For the
reasons that follow, the Motion is DENIED.
I. 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). The Fourth Amended Complaint
contains § 1983 claims for excessive force and deliberate indifference to
Carlock’s medical needs, as well as several state law claims. The
allegations in the Fourth Amended Complaint include the following: that
on November 16, 2007, 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
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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. See ¶¶ 33, 61, 80.
The defendants in this case include the County Defendants–Neil
Williamson, Anthony Sacco, Terry Durr, William Strayer, Ron Beckner,
Candace Cain, Tammy Powell, Kevin Furlong, Lee Anne Brauer, Niecey
West, Lucy Ramsey, and Todd Guy–as well as the medical
Defendants–Joseph Maurer, M.D. and Chauncey C. Maher, III, M.D.
The Motion to Exclude Certain Testimony and Report of Dr. James
Hubler was filed by the County Defendants.
A.
Summary of Dr. Hubler’s Curriculum Vitae
According to Dr. Hubler’s Curriculum Vitae (d/e 419-1), he is
currently the Attending Physician in the Department of Emergency
Medicine at OSF Saint Francis Hospital, a Level I Trauma Center. He is
also a Clinical Assistant Professor of Surgery for the University of Illinois
College of Medicine at Peoria. Dr. Hubler is certified by the American
Board of Emergency Medicine. He is also a certified Advanced Cardiac
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Life Support Instructor and a certified Basic Traumatic Life Support
Instructor.
B.
Summary of Dr. Hubler’s Two Reports
In May 2009, Dr. Hubler prepared a Report (d/e 419-1 ) (May
Report). The May 2009 Report indicates Dr. Hubler reviewed the
medical records, autopsy reports, and depositions of Nurse West, Nurse
Ramsey, Nurse Brauer, Dr. Maurer, Dr. Maher, and Amy Jeffers of
Paramedic American Ambulance. In the May 2009 Report, Dr. Hubler
gives his opinion that there was a “reasonable and meritorious cause for
filing” the lawsuit against Dr. Maurer and Dr. Maher and gives the basis
for that opinion.
In June 2009, Dr. Hubler prepared a second Report (d/e 419-1)
(June Report) also containing his opinion that there was a “reasonable
and meritorious cause for filing” the lawsuit against Dr. Maurer and Dr.
Maher. The June Report indicates that Dr. Hubler reviewed, in addition
to the documents identified in the first report, a cover letter from
attorney Kelley with a summary of events and Plaintiff’s Third Amended
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Complaint. As is relevant to the issues herein, the June 2009 Report also
contained the following:
[Dr. Maher’s] failure to follow up on the
laboratory testing and to order laboratory testing
sooner was a breach in the standard of care and
ultimately caused Mr. Carlock’s death. Mr.
Carlock’s altered mental status was a direct result
of his abnormal lab values. The altered mental
state lead [sic] to a scuffle with jail officers, which
resulted in his positional asphyxia. It is my
opinion to a reasonable degree of medical certainty
that Dr. Maurer failed to meet the standard of
care and caused injury and death to Mr. Carlock,
which could have been prevented.
June Report (d/e 419-1). Dr. Hubler expressed a similar opinion with
regard to Dr. Maher. Id.
C.
Summary of Dr. Hubler’s Deposition Testimony
Dr. Hubler’s deposition took place on March 7, 2011. See
Deposition Transcript (d/e 419-2). At the deposition, Dr. Hubler
testified that at the time in question, Carlock was suffering from severe
dehydration, renal failure, lithium toxicity, depressive bipolar disorder,
and diabetes. Dep., p. 12. According to Dr. Hubler, but for the pressure
on the chest, the dehydration, renal failure, lithium toxicity,
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abnormalities, and electrolytes could have been corrected and Carlock
could have survived. Dep., p. 14. Dr. Hubler also testified:
Both the dehydration and the hyperkalemia
potassium were treatable conditions.
Unfortunately, being so critically ill, it left him in
a very brittle state more likely to suffer
arrhythmias and positional asphyxia.
People who are generally healthy, you or I
positioned in a hobble position would not have
positional asphyxia. Those people are
generally–have multiple medical conditions or
psychiatric conditions. Those patients are more
likely, very much more likely, to have positional
asphyxia or excited delirium.1
Dep., p. 13-14.
When asked what, in his opinion, caused Carlock’s death, Dr.
Hubler testified:
Mr. Carlock was in a brittle medical condition. He
was dehydrated, hyperglycemic[,] and showed
signs of hyperkalemia and acidosis. When
someone is in such a brittle medical condition,
1
Dr. Hubler described excited delirium as when a psychiatric, violent, or drugoverdose patient continues to struggle against force and has a sudden cardiac arrest.
Dep. p. 96. While Dr. Hubler thought Carlock could have suffered excited delirium,
he thought it more likely that it was the positional asphyxia accompanied by
Carlock’s medical condition that led to an arrhythmia. Dep. p. 96.
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they’re placed in a hobble position or a position
which may be called positional asphyxia. With a
large man on their back, they are more likely to
have a respiratory or cardiac arrest.
He died as a result of the combination of physical
forces applied to his body while being face down in
a hobble position and his underlying medical
condition, which was those things I just stated.
Dep. p. 26. Dr. Hubler, later in the deposition, defined “brittle” as
meaning Carlock was “more likely to have arrhythmias and difficulties
due to his electrolyte abnormalities and renal failure.” Dep., p. 111.
Dr. Hubler testified he was not there to render any opinion as to
the appropriateness of the use of a taser. Dep., p. 86, 94. However,
when defense counsel asked Dr. Hubler whether he was rendering any
opinion regarding the appropriateness of the use or level of force used in
restraining Carlock, Dr. Hubler stated he was offering such an opinion.
Dep., p. 86. When asked about his training to render such an opinion,
Dr. Hubler testified:
The American College of Emergency Physicians is
frequently challenged with restraint of dangerous
hostile, demented, delusional patients, and so our
college has policies on the safe ways to restrain
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and it’s part of my education and training.
Also, I was the EMS medical director for the
largest pre-hospital system in the State of Illinois
with 72 agencies and two thousand paramedics
and developed protocols on safe restraint of
patients.
I sat on the Tazewell County Restraint Task Force.
They had an adverse outcome in the jail and I was
the medical representative on how to–how they
should safely restrain patients in the jail.
Dep. p. 86-87. Dr. Hubler admitted he had no expertise or training in
the specific area of use of force and control in a correctional facility.
Dep. p. 88. Dr. Hubler testified that on occasion, emergency staff are
presented with people that need to be restrained. Dep. p. 111-12.
Dr. Hubler admitted his Reports did not include his opinions on
the appropriateness or level of force used in this case. Dep. p. 88. When
asked if he planned to render an opinion with respect to the
appropriateness of the use of or the level of force used in this case, Dr.
Hubler testified, “If asked, yes.” Dep., p. 88. Dr. Hubler testified that
his opinion would be that:
patients should not be restrained in a hobble
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position. It predisposes agitated patients to
positional and excited delirium and cardiac
arrhythmias and respiratory arrest.
Furthermore, when restraining patients, you do
need to use a show of force. You do need to go in
and put the patient down and the patient – excuse
me, the correctional officers, the paramedics, the
people involved in the restraint, their safety is of
paramount importance, there’s no doubt about it.
But once they are restrained, they need to be
rolled into a safe position.
Dep., pp. 88-89. Dr. Hubler defined the “hobble position” as being
when patients are placed down, their chest and legs are brought up
behind them, and their hands are restrained behind their back. Dep., p.
111.
When asked what was inappropriate about the use or level of force
in this case, Dr. Hubler testified:
Well, one, the hobble position is considered
dangerous. Our college and many law
enforcement agencies have declared the hobble
position to be not standard of care, not to be used.
***
The other issue is the fact that when you have a
large 285-pound individual sitting on someone’s
back, they’re more likely to have positional
asphyxia.
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Dep., p. 89. When asked his authority for that opinion, Dr. Hubler
testified, “I just went over those with you.” Dep., p. 89.
Defense counsel asked Dr. Hubler about his failure to look at the
statements of the people involved in the struggle before rendering an
opinion on the appropriateness and extent of the use of force. See Dep.,
pp. 91-93. Dr. Hubler agreed that reviewing such information would be
helpful. Dep. p. 93. Dr. Hubler also testified, in support of his reliance
on the documents he reviewed:
I mean, reviewing the fact that he was agitated,
taken to the ground, kicked one of the officers in
the groin, was held on the legs with two guys
standing on his legs and a 285-pound guy on his
back in a hobble position, that’s pretty evidentiary
to me that he was restrained in a position that was
unsafe and made him more likely to have
positional asphyxia.
Dep., pp. 91-92.
Dr. Hubler explained how positional asphyxia results in death:
One, you can’t expand the chest well. And, two,
you have decreased venous return to the heart, so
you can’t pump effectively, you can’t breathe
effectively. * * * And then you have a cardiac
arrest and you die.
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Dep. p. 100. Dr. Hubler testified he believed that positional asphyxia
had occurred in Carlock’s case. Dep., pp. 99-100. However, Dr. Hubler
agreed there was no anatomical finding postmortem that confirms
positional asphyxia. Dep., p. 100-01.
Dr. Hubler testified that he was not qualified in the field of
corrections. Dep. p. 94. He has not written any articles that are relevant
to his opinions in this case nor has he testified in a case that has the same
issues as this case. Dep. p. 46
During the deposition, defense counsel asked Dr. Hubler about a
Report he wrote to Plaintiff’s counsel dated June 3, 2009. Dep., p. 57-58
(Insurance Report). In the Insurance Report, Dr. Hubler concludes that
Carlock’s death was accidental. See Insurance Report (d/e 419-3).
Specifically, Dr. Hubler states that “Carlock experienced a sudden and
unforseen physical event that [led] to compressive or positional asphyxia
which caused his death.” June 2009 Report (d/e 419-3). Dr. Hubler
explained that the Insurance Report was written following his review of a
claims adjuster’s summary stating that, under the insurance policy, the
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accidental death provision did not apply. Dep. pp. 57-58.
When asked whether that was still his opinion, Dr. Hubler testified:
Yes, it is. I can explain. The hobble position,
positional asphyxia, had a patient restrained who
is more likely to have those type of asphyxias
because of their brittle medical condition. So the
brittle–obviously, that being hobbled face down,
made him more susceptible to cardiac arrest.
Dep., p. 59. Dr. Hubler further explained that the Insurance Report was
meant to convince the insurance company that the death was accidental.
Dep. p. 103. Dr. Hubler testified he did not assume that the guards
meant to kill Carlock. Dep., p. 102.
Plaintiff’s counsel conducted the following examination of Dr.
Hubler:
Q. You were asked about, by one of the attorneys,
whether, and I think it was in connection with the
concept of excited delirium, that people struggle
often in that condition. But isn’t it true that
people who are placed in a position where they
cannot breathe, and especially if they’ve got heavy
weight on their back, face down, would you expect
that a normal human being would struggle with
whatever he or she had left to try to breathe?
A. They would continue to try to breathe, right.
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And patients who are placed face down who don’t
have underlying medical conditions that are
hobbled don’t have the same asphyxia that
patients with medical problems do. Nobody
knows why.
Q. So is it your opinion then that because of all
these medical conditions, renal failure, lithium
toxicity, uncontrolled diabetes, that that made him
much more likely to die from asphyxia in the jail?
A. Yes.
Dep., pp. 129-130.
Defendants now move to bar and exclude portions of Dr. Hubler’s
testimony and opinions.
II. LEGAL STANDARD
“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., 663 F.3d 887, 893 (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
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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)). The test is a flexible one.
Bielskis, 663 F.3d at 894 (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).
To determine whether a witness is qualified as an expert, the court
must compare the area in which the witness has “superior knowledge,
skill, experience, or education with the subject matter of the witness’s
testimony.” Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir.
1990). “Rule 702 specifically contemplates the admission of testimony
by experts whose knowledge is based on experience.” Walker v. Soo Line
R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000).
To aid courts in assessing the reliability of scientific expert
testimony, the Supreme Court, in Daubert, set forth a non-exhaustive list
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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
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)
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“[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; see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 150 (1999) (“”In other cases, the relevant
reliability concerns may focus upon personal knowledge or experience”).
III. ANALYSIS
In their Motion, Defendants assert that Dr. Hubler’s opinions
regarding restraint/positional asphyxia, use of force, and the appropriate
use and effects of the taser should be stricken. Defendants also argue Dr.
Hubler’s opinion should be excluded because he has demonstrated “a
willingness to abandon the norms of his profession in the interest of his
client” as evidenced by the Insurance Report. Def. Mot., p. 15.
A.
Plaintiff Concedes that Dr. Hubler is Not Offering an Opinion on
the Appropriateness of the Use of the Taser and its Effects on the
Human Body
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Defendants seek to bar Dr. Hubler from testifying as to the
appropriateness of the use of the taser and its effects on the human body.
Plaintiff responds that “at no point were there any claims made by Dr.
Hubler that he was an expert in the use of [t]asers or that he had an
opinion on the use of the [t]aser.” Plaintiff further states that “Plaintiff
has never expressed any desire to elicit an opinion about the use of the
[t]aser from Dr. Hubler during the deposition or at trial.” Pl. Mem. p. 5.
Therefore, because Dr. Hubler will not be offering an opinion regarding
the appropriateness of the use of the taser or its effects on the human
body, the potion of the Motion seeking to bar such testimony is
DENIED AS MOOT.
B.
The Positional Asphyxia Opinion Was Contained in the June 2009
Report, and the Court Will Not Bar Dr. Hubler’s Use of Force
Opinion For Plaintiff’s Failure to Disclose or Supplement the
Reports
Defendants argue that Dr. Hubler’s opinions on restraint/positional
asphyxia and use of force are properly excluded for the failure to comply
with Rule 26. Specifically, Defendants assert that Dr. Hubler rendered
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opinions concerning use of force and restraint techniques for the first
time at his deposition which were not contained in his Reports.
Defendants claim that Plaintiff should have supplemented the Reports,
and, having failed to do so, the opinions not included in the Reports
should be barred.
Plaintiff responds that Dr. Hubler’s report did include a diagnosis
of positional asphyxia and that this was sufficient to comply with Rule
26. Plaintiff admits that, while Dr. Hubler’s reports did not specifically
disclose his opinions on use of force, the testimony is within Dr. Hubler’s
area of expertise and should not be excluded. In particular, Plaintiff
notes that Dr. Hubler’s testimony about the use of force was not
anticipated by Plaintiff but was “dragged out of [Dr. Hubler] by counsel
for the Defendants.” Pl. Mem. p. 7.
Rule 26(a)(2)(B)(i) requires an expert to include in his report “a
complete statement of all opinions the witness will express and the basis
and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). The party
tendering the expert has a duty to supplement the report if the party
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learns that the information is incomplete or incorrect. Fed. R. Civ. P.
26(e).
If a party fails to disclose information required by Rule 26(a) or
fails to supplement the information provided, the party may not use the
“information or witness to supply evidence on a motion, at a hearing, or
at a trial, unless the failure was substantially justified or harmless.” Fed.
R. Civ. P. 37(c). Whether a failure was substantially justified or harmless
is a determination that is within the discretion of the court. David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003); see also Fed. R. Civ.
P. 37(c) (identifying sanctions other than barring a witness). The
relevant factors to consider when determining whether a failure was
substantially justified or harmless include: (1) the prejudice and surprise
to the opposing party; (2) the ability of the party to cure any prejudice;
(3) the likelihood of disruption of the trial; and (4) the bad faith or
wilfulness involved in not disclosing the evidence sooner. Id.
Here, Dr. Hubler’s Reports did disclose his opinion on positional
asphyxia. Moreover, while Dr. Hubler’s Reports do not disclose his
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opinions on use of force, the failure is substantially justified and
harmless. In particular, Plaintiff asserts that she had not asked Dr.
Hubler for that opinion (defense counsel elicited it at the deposition) and
did not anticipate that Dr. Hubler would give such an opinion. However,
once Dr. Hubler gave his opinion, Plaintiff should have had Dr. Hubler
supplement the Reports.
Nonetheless, Defendants were not surprised by the testimony and
any prejudice has been cured by Defendants’ opportunity to fully
examine Dr. Hubler during the deposition. The trial has not been
disrupted as a date for trial has not been set. Finally, Plaintiff did not act
in bad faith or willfully in not disclosing the evidence sooner. Therefore,
this Court concludes, in its discretion, that the failure to supplement was
substantially justified and harmless.
This Court notes that in Ciomber v. Cooperative Plus, Inc., 527
F.3d 635, 642 (7th Cir. 2008), the Seventh Circuit held that “Rule
26(a)(2) does not allow parties to cure deficient expert reports by
supplementing them with later deposition testimony.” In so finding, the
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Seventh Circuit noted that the purpose of Rule 26(a)(2) was to provide
notice to opposing counsel “as to what the expert witness will testify.”
Id.
In this case, however, Defendants had sufficient information to
prepare for Dr. Hubler’s deposition, as evidenced by the deposition
transcript. See, e.g., Matavante Corp. v. Emigrant Sav. Bank, 619 F.3d
748, 762 (7th Cir. 2010) (distinguishing Ciomber on the basis that the
expert’s reports gave the defendant sufficient information to prepare for
the expert’s testimony, as evidenced by the cross-examination of the
expert). Therefore, Dr. Hubler’s opinion will not be barred on the
ground that Plaintiff failed to disclose or supplement Dr. Hubler’s
Reports.
C.
Dr. Hubler May Testify Regarding His Opinions on
Restraint/Positional Asphyxia and Use of Force
Defendants argue that Dr. Hubler’s opinions on restraint/asphyxia
should be barred because he (1) has no personal experience or expertise
in the specific area of use of force in a correctional setting; (2) has never
been qualified as an expert or allowed to render an opinion on the
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appropriateness or extent of the use of force; (3) expressed his opinion
regarding positional asphyxia based on the incorrect assumption that
Carlock had been placed in a hobble position; and (4) did not review all
the relevant documents concerning the event. However, each of these
criticisms go more to the weight of Dr. Hubler’s testimony as opposed to
its reliability and can be adequately addressed by defense counsel on
cross-examination. See Daubert, 509 U.S. at 596 (“Vigorous crossexamination, 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”); Heard v. Illinois Dep’t of Corrections, 2012 WL
2524748, at *5 (N.D. Ill. 2012) (“[N]either Daubert nor the Federal
Rules of Evidence requires an expert to review all of the facts, only a
‘sufficient’ amount is required”).
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Defendants also argue that Dr. Hubler is not qualified to give an
opinion on use of force and restraint/asphyxia. However, Dr. Hubler is
Board Certified in Emergency Medicine. See Curriculum Vitae (d/e 4191). He testified that the American College of Emergency Physicians is
frequently challenged with restraint of dangerous patients. Dep., p. 8687. According to Dr. Hubler, his college has policies on the safe way to
restrain such patients, which is part of Dr. Hubler’s training and
education. Dep., p. 87. Dr. Hubler also developed protocols on the safe
restraint of patients as the EMS Medical Director. Dep., p. 87. In
addition, Dr. Hubler sat on the Tazewell County Restraint Task Force as
the medical representative on how to safely restrain patients in jail.
Dep., p. 87. Accordingly, Dr. Hubler is qualified on the basis of training
and education to give the opinions he expressed regarding
restraint/positional asphyxia and use of force. See, e.g. Walker, 208 F.3d
at 591 (finding that the expert “demonstrated professional experience in
the area of electrical safety, and Rule 702 specifically contemplates the
admission of testimony by experts whose knowledge is based on
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experience”).
Defendants next challenge Dr. Hubler’s methodology. Defendants
contend that Dr. Hubler provided no explanation for how he arrived at
his stated conclusions regarding the use of force or positional asphyxia.
According to Defendants, Dr. Hubler’s opinions are not grounded in the
scientific process and are based on speculation.
Dr. Hubler testified that positional asphyxia causes death because
the person cannot expand the chest and has decreased venous return to
the heart. Dep., p. 100. Dr. Hubler was also critical of Carlock having
been left in a face down position. Dep., p. 89. Further, Dr. Hubler
testified that, once a patient is restrained, he needs to be rolled into a
safe position. Dep., p. 89. Dr. Hubler explained that a person with a
brittle medical condition, like Carlock, is more susceptible to cardiac
arrest if restrained in a hobble position. Dep., p. 26; see also Dep. p. 59
(agreeing that his opinion was that “Carlock’s medical condition made
him more likely to die during the struggle with police officers”).
Dr. Hubler’s methodology for the above opinions, which is based
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on his education and training, is sufficiently reliable under the flexible
discretion afforded to courts under Daubert and Rule 702. See
Baldonado v. Wyeth, 2012 WL 3234240, at *3-6 (N.D. Ill. 2012)
(finding the expert’s methodology reliable where it was based on her
training and experience); Matavante Corp., 619 F.3d at 761 (“An
expert’s testimony is not unreliable simply because it is founded on his
experience rather than on data”).
Finally, although Defendants do not challenge the relevance of Dr.
Hubler’s opinions, the Court finds Dr. Hubler’s opinions sufficiently
relevant. Dr. Hubler’s testimony will assist the jury with understanding
the evidence or determining a fact at issue in the case. See Fed. R. Evid.
702 (providing that the expert’s knowledge must “help the trier of fact to
understand the evidence or to determine a fact in issue”). Moreover, the
testimony “fits” the issues about which Dr. Hubler 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.
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1993))). That is, Dr. Hubler’s opinions on the use of force, restraint, and
positional asphyxia and how each may have contributed to Carlock’s
death is connected to the issues in the case (including the proximate
cause of Carlock’s death and whether the force used was objectively
reasonable) and will aid the jury in determining those issues.
D.
The Insurance Report Does Not Demonstrate that Dr. Hubler Has
Shown a Willingness to Abandon the Norms of His Profession in
the Interest of His Client
Defendants last argue that “a tendered expert witness opinion can
be excluded if the witness demonstrates a willingness to abandon the
norms of his profession in the interest of his client.” Def. Mem. p. 15.
An opinion may be excluded if the expert has shown a willingness
to abandon the norms of his profession in the interest of his client. In
Emerald Invs. Ltd. P’ship v. Allmerica Fin. Life Ins. & Annuity Co., 516
F.3d 612, 617-18 (7th Cir. 2008), the Seventh Circuit found the district
court did not err by summarily excluding a finance professor’s second
report, noting:
Buser’s first report was so irresponsible as to
justify the judge’s decision to exclude the second
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report summarily. Buser had demonstrated a
willingness to abandon the norms of his profession
in the interest of his client. Such a person cannot
be trusted to continue as an expert witness in a
case in which he has demonstrated that
willingness, and perhaps not in other cases either.
Emerald Invs., 516 F.3d at 617-18.
The instant case, however, is distinguishable. Dr. Hubler’s
Insurance Report is not inconsistent with his earlier reports and does not
demonstrate a “willingness to abandon the norms of his profession in the
interest of his client.” Therefore, Dr. Hubler’s opinions are not barred on
this basis either.
IV. CONCLUSION
For the reasons stated, the Joint Motion to Exclude Certain
Testimony and Reports of Dr. James Hubler (d/e 418) filed by the
Defendants Neil Williamson, Anthony Sacco, Terry Durr, William
Strayer, Ron Beckner, Candace Cain, Tammy Powell, Kevin Furlong, Lee
Anne Brauer, Niecey West, Lucy Ramsey, and Todd Guy is DENIED.
However, as required by Federal Rule of Civil Procedure 26(e)(2),
Plaintiff is DIRECTED to file a supplemental report by Dr. Hubler on or
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before November 26, 2012.
ENTER: November 1, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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