Ortiz, et al v. Chgo, Cty of, et al

Filing 499

MEMORANDUM Opinion and OrderMailed notice(tmh, )

04-7423.121

December 20, 2012

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
APRIL ORTIZ, as Administrator
for the ESTATE OF MAY MOLINA,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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No. 04 C 7423

MEMORANDUM OPINION
The Court of Appeals reversed the summary judgment entered by
this court in favor of certain defendants and remanded the case for
further proceedings.
Cir. 2011).

Ortiz v. City of Chicago, 656 F.3d 523 (7th

The Court held that we had erred in excluding the

testimony of the plaintiffs’ medical expert, Dr. Howard Adelman, a
pathologist.

Dr. Adelman has died, and the plaintiff has retained

a new expert, Dr. James Bryant, a pathologist certified by the
American Board of Pathology in anatomic and clinical pathology.
Dr. Bryant has provided a report (Pl.’s Resp., Ex. A) and given a
deposition (Pl.’s Resp., Ex. B) in which he expresses the same
opinions that the Court of Appeals held were admissible in evidence
when expressed by Dr. Adelman, namely, (a) that out-of-control
diabetes mellitus caused or contributed to the death of May Molina
and (b) that a heroin overdose was not the cause of her death.

The

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defendants have moved in limine to bar the testimony of Dr. Bryant
on the ground that his opinions fail to satisfy the admissibility
standards of Federal Rule of Evidence 702 and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The parties have

briefed the motion and provided the court with voluminous exhibits
in support of their positions.
INTRODUCTION
A preliminary review of the applicable law will be helpful in
our analysis of the parties’ arguments.

Rule 702 provides:

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Testimony that does not meet these standards must be excluded, and
the court should concentrate on the method used by the witness to
reach his opinion rather than the factual underpinnings of the
opinion:
[T]he court’s gatekeeping function focuses on an
examination of the expert’s methodology. The soundness
of the factual underpinnings of the expert’s analysis and
the correctness of the expert’s conclusions based on that

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analysis are factual matters to be determined by the
trier of fact . . . .
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (citing
Daubert, 509 U.S. at 595).

In Gayton v. McCoy, 593 F.3d 610, 616

(7th Cir. 2010) (citing Daubert, 509 U.S. at 596), the Court stated:
Determinations on admissibility should not supplant the
adversarial process; “shaky” expert testimony may be
admissible, assailable by its opponents through crossexamination.
In

the

instant

admissibility
adversarial
admissible.”
With

case,

the

determination
process,

and

Court
is
so

of

not
even

Appeals
intended
‘shaky’

remarked:
to

“The

supplant

testimony

may

the
be

656 F.3d at 536.

these principles

in

mind,

we

turn to

the

parties’

arguments concerning Dr. Bryant’s opinions.
OUT-OF-CONTROL DIABETES AS THE
CAUSE OR A CONTRIBUTING CAUSE OF MOLINA’S DEATH
May Molina was arrested on 10:07 p.m. on May 24, 2004.

She

remained in custody from that time until she was found dead in her
cell at the Chicago Police Department’s 19th District lockup at 2:45
a.m. on May 26, 2004.

Molina had Type II diabetes mellitus that

required medication (Glipizide and Metformin) to control her blood
sugar.

She had no medication during the more than 24-hour period

she was in custody.
In his report, Dr. Bryant assumes that Molina took her pills
shortly before she was arrested. He states that the “half-life” of
Glipizide is 2-5 hours and for Metformin, 6.2 hours.

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At the time of her autopsy, which was conducted by Cook County
Medical Examiner Dr. Eupil Choi, Molina’s “vitreous glucose” level1
was 112 mg/dL.
In forming his opinion that excessively high glucose, known as
hyperglycemia, was the cause or a contributing cause of Molina’s
death, Dr. Bryant relies on a work entitled Postmortem Chemistry,
which is attached as Exhibit H to plaintiff’s response.2

(Dr.

Adelman relied on a different work that contained a somewhat
similar statement.)

On page 242, the authors state:

Initial
postmortem
vitreous
glucose
levels
are
approximately 85% of antemortem levels, and, due to
postmortem glycolysis,3 may decline to zero within four
to five hours.
On the basis of this authority, Dr. Bryant concludes that because
Molina’s glucose level was 112 mg/dL at the time of the autopsy
(which he assumes was performed by Dr. Choi at about 8:00 a.m. on
May 26, 2012, four or five hours after Molina’s death), the
antemortem level “was about 700 mg/dL, which is consistent with out
of control diabetes and nearly no diabetic medications in her
blood.” He goes on to state that “[i]f she had timely received her

1/

This term refers to the level of glucose in the vitreous body of the

eye.
2/
Victor W. Weedn et al., Postmortem Chemistry, in Forensic Science
Advances and Their Application in the Judiciary System 235 (Lawrence Kobilinsky
ed., 2011).
3/
Glycolysis is the “breaking down of sugars into simpler compounds,
chiefly pyruvate or lactate.” Dorland’s Illustrated Medical Dictionary 657 (25th
ed. 1974).

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medications (e.g., glipizide and metformin), then she would not
have died because she would not have been hyperglycemic.

Molina

likely would not have died from out of control diabetes.”

(Pl.’s

Resp., Ex. A at 3.)
The defendants attack this opinion on several grounds.
First, Dr. Bryant admitted in his deposition that he did not
know glipizide’s “duration of action” as opposed to its half-life.
This means he does not know at what point a patient’s diabetes
might go out of control as a result of not taking the prescribed
medication.

He would defer that kind of question to a clinical

pharmacologist. (Defs.’ Mem. in Supp. of Mot., Ex. B, Dep. of Dr.
James Bryant, at 125-129.)
The defendants argue that this lack of knowledge on Dr.
Bryant’s part requires that his opinion be excluded.

We disagree.

Dr. Bryant does not base his opinion on the medication’s duration
of

action,

but,

rather,

on

an

inference

regarding

Molina’s

antemortem glucose level given the level at the time of the
autopsy, and for this inference he relies on Postmortem Chemistry.
As we see it, the statements in Dr. Bryant’s report about the halflife of the medications are basically irrelevant to his opinion
about the cause of death.
The defendants say that Dr. Bryant’s reliance on Postmortem
Chemistry “was misplaced for two key reasons.” (Defs.’ Mem. at 9.)
First, “the article itself acknowledge[s] that postmortem chemistry

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literature is in its infancy and has not reached any degree of
reliability.”

(Defs.’ Mem. at 9 (emphasis added).)

fair characterization of the article.

This is not a

The authors do state that

the “bulk of the postmortem chemistry literature is older and has
not been updated to more modern equipment and procedures.

Within

all these parameters measures of ‘normal’ for ‘postmortem’ levels
as well as disease cutoff values need to be established.”

But, in

the very next sentence, the authors conclude that “[d]espite these
problems laboratories do attempt to establish reference ranges, and
pathologists do find postmortem clinical testing to be valuable.”
(Pl.’s Resp., Ex. H, at 236-37.)

Moreover, in the section of the

article specifically dealing with “Diabetic States,” the authors
state that “[a]lthough vitreous glucose is useful for diagnosis of
hyperglycemia, it is not useful for hypoglycemia.”

(Pl.’s Resp.,

Ex. H, at 242.)
The defendants also argue that Dr. Bryant agreed in his
deposition “that postmortem chemistry was unreliable.”

(Defs.’

Mem. at 9.) In support of this statement, the defendants cite page
142, lines 3-6 of the transcript of Dr. Bryant’s deposition and
include that page in their Exhibit 2, their excerpts from the
deposition.

They do not cite the previous page, nor is it included

in their excerpts.

Plaintiff’s Exhibit B, on the other hand,

includes both pages 141 and 142, which contain all of the relevant
questions and answers:

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Q.

A.

I’m calling it a rule of thumb.

Q.

As you testified earlier?

A.

Right. I’m calling it a rule of thumb, but I don’t think
it’s so far off that the 700 would only be 100, okay?
The 700 – if we’re going to talk about how far off it
might be, it could be 600; it could be 800.

Q.

In an area that you have described as unestablished; is
that fair?

A.
Dr.

And you agree with me that there could be factors
which would undermine the implied glucose level of
700 milligrams per deciliter?

Right, the rule of thumb.
a physicist would like.

Bryant’s

testimony

makes

Not the kind of accuracy that

clear

that

in

his

opinion

the

information in the Postmortem Chemistry article is reliable, even
though not necessarily “generally accepted,” and not as accurate as
“a physicist would like.”

As far as “general acceptance” is

concerned, there is no such requirement for admissibility.

As the

Court stated in Daubert, “To summarize: ‘General acceptance’ is not
a

necessary

precondition

to

the

admissibility

of

evidence under the Federal Rules of Evidence . . . .”
597.

scientific
509 U.S. at

As far the necessary degree of “certainty” is concerned, “it

would be unreasonable to conclude that the subject of scientific
testimony must be ‘known’ to a certainty; arguably, there are no
certainties in science.”

509 U.S. at 590.

The other reason Dr. Bryant’s reliance on Postmortem Chemistry
is

misplaced,

according

to

defendants,

is

that

“he

did

not

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correctly apply the mathematical calculation actually provided in
the article.”

(Defs.’ Mem. at 10.)

Dr. Bryant relied on the statement in Postmortem Chemistry
that the initial postmortem vitreous glucose level is approximately
85 percent of the antemortem level and that it may decline to zero
within four to five hours.

He reasoned that because the autopsy

found Molina’s vitreous glucose level to be 112 mg/dL five to six
hours after her death, it would have been about 700 mg/dL prior to
her death.
The defendants argue that this reasoning is based upon the
faulty premise that Dr. Choi’s autopsy was performed at about 8:00
a.m. and overlooks Dr. Choi’s deposition testimony that it was
performed at 5:00 a.m.

Thus, the 112 mg/dL was not the reading

five to six hours after death, but was the initial reading taken
only two and one-half hours after death.
The defendants take it for granted that Dr. Choi’s testimony
is conclusive as to when the autopsy was performed.

Dr. Bryant’s

assumption that it was performed at about 8:00 a.m. is based upon
his knowledge that this is when the County Medical Examiner’s
Office normally opens in the morning.

The plaintiff may wish to

challenge Dr. Choi’s memory that he performed an autopsy at about
5:00 a.m.,4 but, whether she does or not, Dr. Bryant’s opinion that

4/
The defendants attach to their reply brief a one-page excerpt from
Dr. Choi’s deposition. (Defs.’ Reply, Ex. 10.) In this excerpt, the following
testimony appears:

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hyperglycemia caused or contributed to cause the death is not
necessarily undermined if he is wrong about the time of the
autopsy.

If, as stated in Postmortem Chemistry, the level can

decrease to zero within four or five hours after the initial
postmortem reading, that would be an average of somewhere between
20 percent and 25 percent per hour.

Assuming that Molina’s level

had decreased 25 percent per hour during the two and one-half hours
between 2:30 a.m. and 5:00 a.m., this would be a decrease of 62.5
percent.

This would mean that her antemortem level at 2:30 a.m.

had been 298.7 mg/dL.5
Molina’s diabetic history shows that her glucose levels were
frequently out of control, even when she was under close medical
supervision, as when she was in Norwegian American Hospital in

Q.
A.
Q.
A.
Q.

How long were you in the cell for?
10, 15 minutes.
What did you do after you left the cell?
I came back to the office.
And how soon after you got back to the office did you conduct an
autopsy?
A. I know the investigator was there according to the records 4:55 - 4:45.
So back to office maybe about after the [sic] 5:00.
(Defs.’ Reply, Ex. 10, Choi Dep. at 100, ll. 13-21.) This reference to “the
investigator” may indicate another person who would have knowledge about the time
of the autopsy, and the reference to “records” that show “4:55 - 4:45" would also
seem to be relevant. The transcript does not indicate whether the “records” were
present at the deposition. Neither party has mentioned the investigator or the
records.
5/

This calculation assumes a linear decrease in the glucose level and can
be expressed as (1 - .25t)x = 112, where t = 2.5 (hours). The result, 298.7,
would be greater than 180 mg/dL, the level that Dr. Bryant testified that he
“think[s]” constitutes out-of-control diabetes. (Pl.’s Resp., Ex. B, Bryant Dep.
at 142-143.)
Dr. Bryant’s uncertainty about the level of glucose considered out of
control will be something for the jury to consider. As far as we can recall, Dr.
Adelman’s opinion, held admissible by the Court of Appeals, did not include any
specific information about the level considered to be out of control.

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March 2003.

On March 5, 2003, she had a reading of 137 mg/dL, and

on March 6, 2003, readings of 291 mg/dL and 420 mg/dL.6
Norwegian

American

Hospital

records

were

among

the

These

materials

considered by Dr. Bryant in reaching his opinion about the cause of
death.

That fact that Molina’s glucose levels were unpredictable

would tend to support the likelihood that her antemortem level
could have been higher than 298.7 mg/dL.
Another factor Dr. Bryant considered was that, in his view,
there was no alternative explanation for Ms. Molina’s death.

Dr.

Choi’s theory of a heroin overdose was, in Dr. Bryant’s opinion,
unsupported, as we will discuss in the next section of this
opinion.

Arguably, that leaves hyperglycemia as the likely cause

cause of Molina’s death.
It is important to note that in reaching his opinion, Dr.
Bryant relied on the same records the Court of Appeals found
adequate to support Dr. Adelman’s opinion.7
Bryant is an experienced pathologist.

Like Dr. Adelman, Dr.

He has performed roughly

4,000 autopsies, at least 5 of them where the cause of death was
uncontrolled diabetes.

(Pl.’s Resp., Ex. B, Bryant Dep. at 159-

60.)

6/

Interestingly, the nurse’s notes at the time of the 420 mg/dL reading
indicate that Ms. Molina was “asymptomatic.” (Pl.’s Ex. J at 22, Bates 93.)
7/
“Based on this information [the records reviewed by Dr. Adelman], it
is plain that the district court’s central reason for excluding Dr. Adelman’s
testimony – that his opinion was based on insufficient data – was founded on an
erroneous understanding of the factual record. This alone constitutes an abuse
of discretion requiring reversal.” Ortiz, 656 F.3d at 537.

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It appears to the court that the defendants’ challenges to Dr.
Bryant’s

opinion

that

“out

of

control

diabetes”

caused

or

contributed to Molina’s death go to its “factual underpinnings”
rather than to the methodology by which he reached it.

His opinion

may be “shaky,” but, as the cases have held, this is not a basis
for barring the opinion from evidence.

The defendants will have

ample opportunity to challenge the opinion by cross-examination and
by presenting contrary evidence.
OPIATE INTOXICATION AS A CAUSE OF DEATH
The autopsy revealed that Molina had ingested six small
tinfoil packets of heroin (presumably just before her arrest), and
Dr. Choi concluded that “opiate intoxication” was the cause of her
death.

Dr. Bryant disagrees, and, if permitted, will testify that

Dr. Choi’s conclusion “was not substantiated by the evidence.”
(Pl.’s Resp., Ex. A at 3.)

Dr. Bryant’s reasoning is as follows:

Morphine, the main metabolite of heroin, was present at
a level of 72 ng/mL. This is a therapeutic level for
morphine. If a physician was providing morphine to a
patient for pain relief as might [sic] done for a patient
with multiple bone fractures, this plasma level of 72
ng/mL would be therapeutic, not toxic, and not lethal.
The therapeutic level for surgical anesthesia is 65-80
ng/mL. The toxic level begins at 200-5,000 ng/mL. See
Jerrold B. Leikin, M.D. and Frank P. Paloucek, PharmD,
Poisoning and Toxicology Handbook (published by LexiComp, Inc.). In order to prove that heroin overdose is
the cause of death in a person who swallows bags to hide
them, unmetabolized heroin in large quantities should be
present in the blood to account for the death. None was
demonstrated. Dr. Choi makes his diagnosis with a leap
in logic based on no evidence except the presence of the

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packets in the stomach and duodenum.
his case.

He did not prove

The defendants argue that Dr. Bryant has misinterpreted the
Leikin and Paloucek Handbook he relies on for the proposition that
the morphine level of 72 ng/mL is a therapeutic level (i.e., a
level used for treatment) and that the toxic level begins at 2005,000 ng/mL.

One of the authors, Dr. Leikin, has provided a

Declaration, which the defendants rely on to prove their point.
(Defs.’ Mem., Ex. 4.)

As the plaintiff points out, Dr. Leikin’s

Declaration is not the same as a deposition, and the plaintiff has
had no opportunity to cross-examine him.

For that reason alone we

would be hesitant to bar Dr. Bryant’s opinion on the basis of Dr.
Leikin’s Declaration.

Putting that consideration aside, however,

and taking Dr. Leikin’s statements at face value, our conclusion is
that his declaration does not justify the bar the defendants seek.
Dr. Leikin states:

“The Handbook does not, and never was intended

to, convey that 72 ng/mL of morphine can never be a lethal level.”
(Leikin Decl. ¶ 6.)
Francisco

and

He cites a study of heroin fatalities in San

Connecticut

in

which

some

of

the

concentrations were as low as 50 ng/mL and even 10 ng/mL.
Decl. ¶ 10.)

morphine
(Leikin

Dr. Leikin concludes:

In conclusion it is entirely possible that a person who
dies from a heroin overdose may have only 72 ng/mL of
morphine in his or her system postmortem, and the
Handbook does not say otherwise.
Some of the risk
factors that could precipitate death in an individual
with the relatively low level 72 ng/mL of morphine in his
or her system include morbid obesity, sleep apnea, an

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already depressed respiratory system, and cirrhosis of
the liver. Dr. Bryant’s conclusion that the Handbook
confirms that 72 ng/mL can never be a fatal level of
morphine found in an adult’s blood stream is incorrect,
and is a misinterpretation of the Handbook.
(Leikin Decl. ¶ 11.)
of the Handbook.

Plaintiff submits a copy of the relevant page

Under the title “Morphine, Blood,” it states:

“Heroin is metabolized to morphine, therefore morphine detection
may indicate heroin use.

The “therapeutic range” of morphine is

given as 65-80 ng/mL, and under the heading “Critical Values,” the
“Toxic” level is given as >200 ng/mL.

(Pl.’s Resp., Ex. K.)

This information in the Handbook is undoubtedly useful, but we
do not read it to say that under no circumstances can a person ever
die from a morphine blood level of less than 200 ng/mL.
neither does Dr. Bryant.
certain about anything.

But

Nothing in his report says that he is
He says that “[i]t is [his] opinion that

heroin overdose was not the cause of Molina’s death,” and that Dr.
Choi’s opinion to the contrary “was not substantiated by the
evidence.”
what

the

(Pl.’s Resp., Ex. A at 3 (emphasis added).)
Supreme

Court

said

about

the

need

for

Recall

scientific

certainty: “Of course, it would unreasonable to conclude that the
subject of scientific testimony must be ‘known’ to a certainty;
arguably, there are no certainties in science.”

Daubert, 509 U.S.

at 590.
Dr. Bryant’s other basis for finding Dr. Choi’s opinion to be
unsupported by the evidence is that Dr. Choi failed to perform a

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test

to

determine

Molina’s blood.

whether

there

was

unmetabolized

heroin

in

The defendants argue that because there had been

no test to determine whether there was unmetabolized heroin, Dr.
Bryant is missing a “key data point” for his opinion that heroin
was not the cause of death.

As the plaintiff points out, however,

it appears to be Dr. Choi who may be missing a key data point to
support his opinion that heroin ingestion was the cause of death.
We believe that Dr. Bryant’s opinion that opiate intoxication
was not the cause of death, and his reasons for that opinion, will
be helpful to the jury. His methodology in reaching the opinion is
in compliance with Rule 702, and any weakness in the factual
underpinnings
admissibility.

goes

to

the

weight

of

the

opinion,

not

its

The question for the jury will be which opinion is

more probably correct.

Dr. Bryant and Dr. Choi disagree, but the

fact “[t]hat two different experts reach opposing conclusions from
the same information does not render their opinions inadmissible.”
Walker v. Soo Line R.R., 208 F.3d 581, 589 (7th Cir. 2000).
CONCLUSION
The defendants’ motion in limine to bar the opinions of James
Bryant [483] is denied.

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DATE:

December 20, 2012

ENTER:

___________________________________________
John F. Grady, United States District Judge