Buechel v. United States of America et al

Filing 135

MEMORANDUM AND ORDER Denying 127 MOTION to Exclude Plaintiff's Expert and Strike His Report filed by United States of America. Signed by Judge J. Phil Gilbert on 8/2/12. (bkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH W. BUECHEL,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No: 08-CV-132-JPG

MEMORANDUM AND ORDER
This matter comes before the Court on the motion to exclude Plaintiff’s expert and strike
his report filed by Defendant the United States of America. (Doc. 127). Plaintiff Joseph Buechel
has responded to the motion. (Doc. 129).
I.

Facts
At all relevant times in this case, Mr. Buechel was an inmate at FCI-Greenville located

in Greenville, Illinois. While in FCI-Greenville, Mr. Buechel contracted the “MRSA” virus. Mr.
Buechel alleges that he contracted the virus while working in the laundry room at FCI-Greenville
with his co-worker Joe Hansen. The record indicates that Mr. Hansen suffered from multiple
wounds on his back, arm and thigh. Mr. Buechel alleges that he contracted MRSA from Mr.
Hansen when the two were working in the laundry room and passing back and forth tools.
Plaintiff is seeking to present at trial Dr. Robert B. Greifinger as an expert in “the fields
correctional health care and infectious diseases in a correctional setting.” (Pl.[‘s] Resp. to Def[‘s]
Mot. at 1). Dr. Greifinger has been a physician for over forty years. He has worked for such
entities as the United States Public Health System, 1972-1974, and the New York State
Department of Correctional Services, 1989-1995. Currently, Dr. Greifinger is a consultant for

Medical Management and Quality Improvement Services where he consults “on the design
management, operations, quality improvement, and utilization management for correctional
health care systems.”(Def[‘s] Mot. Ex. A). Dr. Greifinger’s report indicates that he believes FCIGreenville failed to follow their own policies regarding treatment and management of MRSA and
other communicable diseases. Further, he indicates that FCI-Greenville has a history of failing
to follow these policies, and that these failures were the proximate cause of Mr. Buechel’s
injuries.
Defendant argues that “1) [Dr. Greifinger] is not qualified to render an expert opinion on
infectious diseases and/or what caused plaintiff to have MRSA; 2) his opinions on the standard
of medical care in correctional settings, the cause of plaintiff’s MRSA infection, and the spread
of MRSA in prison is not based on identifiably reliable methodology; and 3) his opinion would
not assist the Court in understanding the evidence.” Id. at 1. Mr. Buechel responds by arguing
that 1) Defendant’s argument that Dr. Greifinger is not qualified is based on a mischaracterization
of the record; 2) Dr. Greifinger’s methods are reliable; and 3) that his testimony would help the
trier of fact.
II.

Standard
Admissibility of expert testimony is governed by Federal Rule of Evidence 702, Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. In Daubert, the
Supreme Court held that Federal Rule of Evidence 702 did not incorporate the “general
acceptance” test set forth in Frye v. United States, 54 App. D.C. 46 (D.C. Cir. 1923). Instead,
the Court held that Rule 702 required district judges to be gatekeepers for proposed scientific
evidence. Daubert, 509 U.S. at 589; see also General Elec. v. Joiner, 522 U.S. 136, 142 (1997).
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In 2000, Rule 702 was amended in response to Daubert. United States v. Conn, 297 F.3d 548,
555 (7th Cir. 2002). In its current form, it reads as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to
the facts of the case.
Fed. R. Evid. 702.
The Court’s role is to conduct a three-part analysis: “‘[1] the witness must be qualified
“as an expert by knowledge, skill, experience, training, or education, Fed.R.Evid. 702, [2] the
expert's reasoning or methodology underlying the testimony must be scientifically reliable,
Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; and [3] the testimony must assist the trier of fact
to understand the evidence or to determine a fact in issue.” Ervin v. Johnson & Johnson, Inc., 492
F.3d 901, 904 (7th Cir. 2007).
The purpose of the Daubert inquiry is to scrutinize proposed expert witness testimony to
determine if it has “the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field” so as to be deemed reliable enough to present to a jury. Lapsley v. Xtech,
Inc., 2012 WL 3055865, 1 (7th Cir. 2012) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152, (1999)). A Daubert inquiry is not designed to have the district judge take the place of the
jury to decide ultimate issues of credibility and accuracy. If the proposed expert testimony meets
the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be
tested before the jury with the familiar tools of “vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof.” Id. (citing Daubert v. Merrell
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Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993)).
III.

Analysis
The first issue to address in this case is whether Dr. Greifinger is qualified to testify as

an expert. Second, the Court must determine whether his testimony would be reliable, and lastly
the Court must determine whether his testimony would assist the trier of fact to understand the
evidence or determine a fact in issue in the case. The Court will take each issue in turn.
A.

Qualification as an Expert

The first issue to address in this case is whether Dr. Greifinger is qualified to testify as
an expert in the fields of correctional health care and infectious diseases in a correctional setting.
To determine if an expert is qualified to testify in a particular matter, a court should “consider
a proposed expert’s full range of practical experience as well as academic or technical training.”
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). However, generalized knowledge
within an area is not necessarily enough to qualify an expert:
[A]n expert’s qualifications must be within the same technical area as the subject
matter of the expert’s testimony; in other words, a person with expertise may only
testify as to matters within that person’s expertise. Generalized knowledge of a
particular subject will not necessarily enable an expert to testify as to a specific
subset of the general field of the expert’s knowledge.
Martinez v. Sakurai Graphic Sys. Corp., No. 04 C 1274, 2007 WL 2570362, at * 2 (N.D. Ill. Aug.
30, 2007) (citing O’Conner v. Commonwealth Edison Co., 807 F. Supp. 1376, 1390 (C.D. Ill.
1992), aff’d, 13 F.3d 1090 (7th Cir. 1994)). 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.” Gayton v. McCoy, 593 F.3d 610, 615 (7th Cir. 2010)(citing Carroll v. Otis
Elevator Co., 896 F.2d 210, 212 (7th Cir.1990)).
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In this case, Dr. Greifinger has practiced medicine for over forty years with twenty of
those years in a correctional setting. Dr. Greifinger has published an article on the management
of MRSA outbreaks and countless others on medical treatment in a correctional setting. Also,
Defendant cites cases where Dr. Greifinger’s ability to testify has been denied. Nevertheless, the
Court finds these cases to be distinguishable. In this case, Dr. Greifinger will not testify to the
standard of care Mr. Buechel received. He will testify to whether FCI-Greenville followed their
standards for treating MRSA and how that affected Mr. Buechel’s disease. In conclusion, the
Court finds that Dr. Greifinger is qualified to testify as an expert in correctional health and
infectious diseases in a correctional setting.
B.

Reliability of Testimony

The next issue is to determine whether the reasoning and methodology that Dr. Greifinger
used to make his determination were reliable. In determining reliability, Daubert sets forth the
following non-exhaustive list of guideposts: (1) whether the scientific theory can be or has been
tested; whether the theory has been subjected to peer review and publication; and (3) whether the
theory has been generally accepted in the scientific community. Gayton, 593 F.3d at 615, (citing
Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786). The court should also consider the proposed
expert's full range of experience and training in the subject area, as well as the methodology used
to arrive at a particular conclusion. Id. (citing Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th
Cir.2000)).
Here, Dr. Greifinger’s theories for the treatment of prisoners have been peer reviewed
again and again. He has published over thirty-four articles on medical treatment and infectious
diseases in prisons. Further, he has the experience and training in correctional medicine and
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infectious diseases. As a result, the Court finds that the reasoning and methodology Dr.
Greifinger used to develop his opinion is reliable.
C.

Relevance of Dr. Greifinger’s Testimony

The next issue is whether the Dr. Greifinger’s opinion would assist the trier of fact in
making their determination. For an expert's testimony to qualify as relevant under Rule 702 “it
must assist the jury in determining any fact at issue in the case.” Smith, 215 F.3d at 719-20.
Further, under Rule 704(a) an expert may testify to the ultimate issue in a case.” Id. (citing
Walker v. Soo Line R. Co., 208 F.3d 581, 587 (7th Cir. 2000)). “The question of whether the
expert is credible or whether his ...theories are correct given the circumstances of a particular
case is a factual one that is left for the jury to determine after opposing counsel has been
provided the opportunity to cross-examine the expert regarding his conclusions and the facts on
which they are based.” Walker, 208 F.3d at 589-90. It is not the trial court's role to decide
whether an expert's opinion is correct. The trial court is limited to determining whether expert
testimony is pertinent to an issue in the case and whether the methodology underlying that
testimony is sound. Id. (citing Kumho Tire Co., Ltd. v. Carmichael, etc., et al., 526 U.S. at 159,
119 S.Ct. 1167 (Scalia, J., concurring)
In this case, Dr. Greifinger offers an opinion on the main issue in this case. The arguments
that Defendant makes regarding Dr. Greifinger’s testimony go directly to the credibility of his
opinion. Dr. Greifinger reviewed all the documents in this case and has come to an opinion of the
cause of Mr. Buechel’s disease. It will be for the jury to decide whether that opinion is correct.
IV.

Conclusion
Therefore, the Court denies Defendant’s motion to exclude Dr. Greifinger and his report
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and denies the Government’s request for a Daubert hearing.
IT IS SO ORDERED.
DATED: August 2, 2012
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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