TODERO v. TOWN OF GREENWOOD et al
Filing
227
ORDER ON MOTIONS TO EXCLUDE EXPERT TESTIMONY - Greenwood Defendants' motion to substitute expert witness is GRANTED, dkt. 217 , and Ms. Todero's motion to bar Dr. Wetli's expert testimony is DENIED as moot, dkt. 199 . Dr. Vilke s hall have through September 30, 2020 to complete his expert report. Ms. Todero shall have through October 30, 2020 to depose Dr. Vilke. Objections to Dr. Vilke's expert testimony shall be filed by November 30, 2020. The remaining motions to e xclude expert testimony are GRANTED in part and DENIED in part. Dkt. 191 ; dkt. 193 ; dkt. 195 ; dkt. 197 ; dkt. 201 . This order is subject to future rulings, such as orders in limine. Each party SHALL ENSURE that its experts understand and f ollow this order and all future orders relevant to their testimony. The Court expects all counsel--who are experienced, sophisticated lawyers--to prepare the expert witnesses accordingly (SEE ORDER FOR ADDITIONAL INFORMAITON). Signed by Judge James Patrick Hanlon on 9/16/2020. (DWH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TERESA TODERO as Special
Administrator of the ESTATE OF
CHARLES TODERO,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
BRIAN BLACKWELL,
RENEE ELLIOT,
ELIZABETH LAUT,
AS-YET UNIDENTIFIED GREENWOOD
POLICE OFFICERS,
CITY OF GREENWOOD,
Defendants.
No. 1:17-cv-01698-JPH-MJD
ORDER ON MOTIONS TO EXCLUDE EXPERT TESTIMONY
The parties have filed six motions to exclude expert testimony at trial.
Defendants City of Greenwood, Renee Elliot, and Elizabeth Laut ("Greenwood
Defendants") have filed a motion to substitute Dr. Gary Vilke as an expert.
Dkt. [217]. For the reasons explained below, the motion to substitute is
GRANTED, dkt. [217], the motion to exclude the testimony of Dr. Charles Wetli
is DENIED as moot, dkt. [199], and the remaining motions to exclude expert
testimony are GRANTED in part and DENIED in part. Dkt. [191]; dkt. [193];
dkt. [195]; dkt. [197]; dkt. [201].
I.
Facts and Background
Teresa Todero, as special administrator of her son Charles Todero's
estate, brought this case alleging constitutional violations under 42 U.S.C. §
1
1983 and state-law torts committed during his arrest. Defendants moved for
summary judgment, which the Court granted in part and denied in part. Dkt.
177. That left an excessive-force claim against Officer Brian Blackwell; a
failure-to-intervene claim against Officers Renee Elliot and Elizabeth Laut; and
Indiana-law claims for survival, assault and battery, and intentional infliction
of emotional distress against the City of Greenwood. Id. at 29.
The parties have filed six motions to exclude expert testimony at trial.
Defendants have filed two motions to exclude testimony of Roger Clark, dkt.
191; dkt. 197, and two motions to exclude testimony of Dr. Mayer Rashtian,
dkt. 193; dkt. 195. Ms. Todero has filed a motion to exclude testimony of Dr.
Charles Wetli, dkt. 199, and a motion to exclude testimony of Dr. Mark Kroll,
dkt. 201. Dr. Wetli is no longer available to testify at trial, so Greenwood
Defendants have filed a motion to substitute Dr. Gary Vilke in place of Dr.
Wetli. Dkt. 217.
II.
Applicable Law
To testify as an expert, a witness must be qualified "by knowledge, skill,
experience, training, or education." Fed. R. Evid. 702; Hall v. Flannery, 840
F.3d 922, 926 (7th Cir. 2016). General qualifications are not enough; a
foundation for answering specific questions is required. Hall, 840 F.3d at 926.
A witness qualified with respect to the specific question being asked may give
opinion testimony if:
2
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.
Fed. R. Evid. 702; Hall, 840 F.3d at 926. These requirements are evaluated
under the two-step Daubert framework. Robinson v. Davol Inc., 913 F.3d 690,
695 (7th Cir. 2019) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
593–94 (1993)).
For the first step, the proponent must "establish that the proposed
witness would testify to valid scientific, technical, or other specialized
knowledge." Id. At this step, the Court "evaluates whether the expert's theory
has been (1) tested, (2) subjected to peer review and publication, (3) analyzed
for known or potential error rate, and/or is (4) generally accepted within the
specific scientific field." Id.
If step one is satisfied, the proponent "must then show that the expert
testimony will assist the trier of fact." Id. For this step, the Court "evaluates
whether the proposed scientific testimony fits the issue to which the expert is
testifying." Id.
3
III.
Analysis
A. Roger Clark
Ms. Todero plans to call Roger Clark as an expert in police practices and
procedures and use of force. Dkt. 205 at 1. Defendants challenge the
admissibility of some of his designated opinions. See dkt. 191; dkt. 197.
1. Opinions based on the 2011 Electronic Weapons Control
Guidelines
Defendants seek to bar Mr. Clark from testifying that Officer Blackwell's
conduct violated nationally accepted standards. Dkt. 192 at 8–10; dkt. 198 at
3–6. Mr. Clark bases his opinions on the 2011 Electronic Weapons Control
Guidelines ("Guidelines") produced by the Police Executive Research Forum
with a grant from Community Oriented Policing Services, United States
Department of Justice. Dkt. 205-3 at 2–3. The Guidelines "are not standards,"
id. at 15, but are "a result of a national survey that examined the use of
[electronic control weapons], specifically what policies, practices, and training
were being employed in the field." Id. at 7.
Ms. Todero argues that it was "methodologically sound" for Mr. Clark to
consult the Guidelines and that they would help the jury understand police
practices and policies surrounding Taser use. Dkt. 205 at 8–12. Defendants
argue that the Guidelines are not national standards and that opinions based
on them would invade the jury's role on deciding the "ultimate issue" whether
Officer Blackwell used excessive force. Dkt. 192 at 8–12; dkt. 198 at 3–7.
4
Fourth Amendment excessive force turns on whether the officer "used
greater force than was reasonably necessary." United States v. Brown, 871
F.3d 532, 536 (7th Cir. 2017). Reasonableness does not turn on an officer's
compliance with or deviation from policies or guidelines. Id. at 537. If it did,
the police department that made the policies or the organization drafting the
guidelines "would become the arbiter of Fourth Amendment reasonableness"—
which is contrary to the Fourth Amendment's design. Id. Mr. Clark thus may
not opine that the Guidelines reflect the constitutional standard for excessive
force or that Officer Blackwell used excessive force. And because the
"excessive-force inquiry is governed by constitutional principles, not policedepartment regulations," id. at 537–38, Mr. Clark may not opine on whether
the City of Greenwood specifically has adopted the Guidelines, whether the
City's policies or training align with the Guidelines, or whether Mr. Blackwell
violated the City's policies. But there are other opinions of Mr. Clark that Ms.
Todero intends to offer at trial that fit within the Daubert framework.
While the excessive-force inquiry is governed by constitutional principles
rather than policies or standards, "expert testimony concerning police policy is
not categorically barred." Id. In some cases—such as when jurors "may not
fully grasp particular techniques or equipment used by police officers in the
field—"specialized knowledge of law-enforcement custom" and standard
training or practice can help the jury. Brown, 871 F.3d at 537.
The Guidelines reflect such standard practice, since they are based on
"what policies, practices, and training were being employed in the field." Dkt.
5
205-3 at 7. Mr. Clark's consultation of the Guidelines is therefore a
methodologically permissible basis for an expert opinion on the Guidelines
governing Tasers and "departures from them," including whether Officer
Blackwell's conduct departed from the Guidelines. Jimenez v. City of Chicago,
732 F.3d 710, 721 (7th Cir. 2013). This does not, however, necessarily mean
that this testimony will be admissible at trial. Defendants' arguments about
relevance are subject to evaluation under, for example, Federal Rules of
Evidence 401 and 403 if raised in a motion in limine or at trial.
2. Opinions about a Taser's duration of shocks and pain caused
Defendants seek to bar Mr. Clark from testifying about the amount of
time Mr. Todero was tased and the pain that would have been inflicted, arguing
that he is not qualified to do so. Dkt. 192 at 7–8; dkt. 198 at 10–11.
Mr. Clark's report concludes that Mr. Todero was tased for a total of 98
seconds. Dkt. 205-1 at 5–7, 11, 14. Ms. Todero argues that Mr. Clark is
qualified to reach that conclusion because he has reviewed Taser's training
materials, completed a Sheriff's Office Taser training, and operated a Taser.
Dkt. 205 at 4, 15–16. Defendants argue that Mr. Clark has no relevant Taser
experience and "no background, education, or training in electricity or
bioelectricity, how the electricity from a Taser is emitted, or how [that
electricity] works upon the human body." Dkt. 192 at 7–8; dkt. 198 at 10–11.
How long a Taser attempts to deploy a shock is a question of Taser
operation and programming. Mr. Clark is trained on those things, so he has
technical or specialized knowledge that he can apply to opine about how long
6
the Taser here deployed a shock. See dkt. 250-2 at 50 (Clark Dep. at 153);
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). Any gaps in that
training or lack of specific scientific knowledge about bioelectricity are issues
for 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.").
The duration of electricity that Mr. Todero specifically was subject to will
likely depend on disputed underlying facts, including whether the Taser
worked properly. Mr. Clark may "give an opinion to the jury concerning the
facts," even if those facts are disputed. Lapsley v. Xtek, Inc., 689 F.3d 802, 809
(7th Cir. 2012); see Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414
(3rd Cir. 2002). The jury will decide whether the underlying facts are true, and
"the burden of exploring the facts and assumptions underlying the testimony of
an expert witness is on opposing counsel during cross-examination." Stecyk,
295 F.3d at 414; see also 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.").
However, Mr. Clark may not attempt to resolve factual disputes for the
jury. See Lapsley, 689 F.3d at 809 (expert testimony must "have a factual
basis"). He also may not present opinions lacking a factual basis. Id. Mr.
Clark therefore may opine about the amount and duration of electricity Mr.
7
Todero was subjected to as long as that testimony has a factual basis, and he
may identify and explain the facts and evidence underlying his opinions.
Mr. Clark also opines that Mr. Todero's tasing would have been
"excruciatingly painful and disorienting" and would have "reduce[d] if not
eliminate[d]" his ability to obey commands to put his hands behind his back.
Dkt. 205-1 at 14. Plaintiff argues that Mr. Clark is qualified to offer that
opinion because he tased someone once and observed its effect. But Mr.
Clark's experience is limited to having reluctantly tased a lawyer, with
precautions in place, to prove a point in another case. Dkt. 205-2 at 16–18
(Clark Dep. at 46–48). That is nothing like the situation when Mr. Todero was
tased. Moreover, the "kind of experience that Rule 702 contemplates" is
"extensive hands-on experience over a meaningful period of time during which
a person develops a working expertise in a certain area." Jones v. Lincoln Elec.
Co., 188 F.3d 709, 724 (7th Cir. 1999); see Kumho Tire Co. v. Carmichael, 526
U.S. 137, 156 (1999) ("[N]o one denies that an expert might draw a conclusion
from a set of observations based on extensive and specialized experience."
(emphases added)). Plaintiff cites no other experience that Mr. Clark has with
the pain caused by Tasers, so Mr. Clark may not opine on Mr. Todero's pain
and the possible effects of that pain.
3. Opinions about Officer Blackwell's prior Taser incidents
Ms. Todero argues that Mr. Clark is qualified to testify about Officer
Blackwell's prior Taser deployments, and that Federal Rules of Evidence 403
and 404 do not make that testimony inadmissible. Dkt. 205 at 16–19. Officer
8
Blackwell argues that this evidence is inadmissible under Rules 403 and 404.
Dkt. 192 at 12–14. Because these arguments focus on Rules 403 and 404
instead of on Rule 702, the Court defers ruling until the parties have briefed
the anticipated motion in limine on this issue. See dkt. 205 at 17 n.6.
4. Opinions about body cameras
Greenwood defendants seek to exclude Mr. Clark's opinions about body
cameras. Dkt. 198 at 7. Ms. Todero argues that Mr. Clark's "fifty combined
years as a police officer and police practices consultant" qualify him to testify
about whether Officer Elliot should have turned on her body camera and
whether Officer Blackwell should have had a body camera. Dkt. 205 at 22.
Greenwood Defendants argue that Mr. Clark has identified no guidelines or
national standards on body-camera use. Dkt. 198 at 7.
Mr. Clark has not shown that he's qualified to testify about body
cameras. While in his fifty years' experience he has "developed an
understanding of . . . nationally accepted standards," he has not identified any
standards governing body cameras and does not point to any specialized
knowledge or experience that he has related to body cameras. Dkt. 205-2 at
103 (Clark Dep. at 338). In short, while Mr. Clark has general qualifications,
he has not shown the required "foundation for answering specific questions"
about body cameras. Hall, 840 F.3d at 926. Mr. Clark therefore may not
opine about body cameras.
9
5. Opinions about excessive force and failure to intervene
Ms. Todero argues that Mr. Clark may opine that Officer Blackwell used
excessive force and that Officers Elliot and Laut failed to intervene in a
departure from nationally accepted standards. Dkt. 205 at 19, 23. Defendants
argue that those are inadmissible legal opinions on ultimate issues. Dkt. 192
at 10; dkt. 198 at 9.
Under Federal Rule of Evidence 704, an expert opinion "is not
objectionable just because it embraces an ultimate issue." However, experts
may not "merely tell the jury what result to reach." United States v. Brown, 871
F.3d 532, 539 (7th Cir. 2017); accord Good Shepherd Manor Found. v. City of
Momence, 323 F.3d 557, 564 (7th Cir. 2003). That's what would happen if Mr.
Clark merely told the jury that Officer Blackwell used excessive force, or that
Officers Elliot and Laut failed to intervene in violation of the constitution, so
Mr. Clark may not opine on those legal conclusions. See Brown, 871 F.3d at
539 (upholding the exclusion of an expert opinion that the defendant "acted
reasonably under the circumstances" in a Fourth Amendment excessive-force
case).
However, expert opinions on issues that "have direct implications for
applying" the excessive-force and failure-to-intervene legal standards, including
"sound professional standards" and alternatives that may have been available,
are relevant and can help the jury. Jimenez v. City of Chicago, 732 F.3d 710,
721 (7th Cir. 2013). Defendants do not argue that Mr. Clark is unqualified to
offer those opinions, dkt. 207 at 4; dkt. 208 at 4, and he has training and
10
experience in these areas. Mr. Clark therefore may opine on those issues,
"limited to describing sound professional standards and identifying departures
from them." Jimenez, 732 F.3d at 721. But, again, identifying departures may
not stray into identifying ultimate constitutional violations.
Ms. Todero also argues that Mr. Clark should be allowed to opine that
the City of Greenwood failed to supervise and discipline Officer Blackwell and
failed to train Officers Elliot and Laut. Dkt. 205 at 19, 23. The Court defers
ruling on these issues pending potential motions in limine on issues such as
relevance.
6. Opinions about Mr. Todero's medical condition and cause of
death
In response to Defendants' arguments, dkt. 192 at 4–7; dkt. 198 at 12,
Ms. Todero says Mr. Clark would not testify about medical causation, dkt. 205
at 23–24. She does not address Mr. Clark's qualifications to offer other
medical opinions. Mr. Clark therefore may not opine on any medical topics,
including cause of death, physical or mental medical condition, excited
delirium, rhabdomyolysis, delusions, and the medical effects of Tasers.
7. Use of "flowery language"
Greenwood Defendants argue that the Court should admonish Mr. Clark
"not to characterize the evidence using flowery language" like "disturbing,"
"outrageous," and "inexcusable." Dkt. 198 at 12–13. Because Mr. Clark will be
offering expert opinions, his testimony must be supported by sound
methodology. Hall, 840 F.3d at 926. Mr. Clark therefore may not offer
11
subjective glosses or conclusions that are not supported by his expert
qualifications.
B. Dr. Mayer Rashtian
Ms. Todero plans to call Dr. Mayer Rashtian, a cardiac
electrophysiologist, as a medical expert. Defendants challenge the
admissibility of some of his opinions.
1. Methodology for opinion that Taser shocks caused Mr. Todero
to experience rhabdomyolysis
Defendants seek to exclude Dr. Rashtian's opinion that the use of the
Taser caused Mr. Todero to experience rhabdomyolysis, resulting in his death.
Dkt. 194 at 3–10; dkt. 196 at 5–8. Defendants challenge both his
qualifications and the methodology he used to reach this conclusion. 1 Ms.
Todero argues that Dr. Rashtian used a reliable "building block" methodology
that uses several different tools to determine causation. Dkt. 206 at 18–26.
Defendants contend that Dr. Rashtian's methodology is unreliable because he
failed to consider several potential causes of rhabdomyolysis. Dkt. 194 at 8–
10; dkt. 196 at 4–8.
Dr. Rashtian testified that he reviewed Mr. Todero's records and
determined that the "only thing" that could have caused Mr. Todero's elevated
creatine kinase levels and rhabdomyolysis was the Taser exposure. Dkt. 206-3
at 40 (Rashtian Dep. at 54). That's because Mr. Todero had just been tased
and had not been immobile or intoxicated with alcohol or cocaine. Id. at 40–43
Because this opinion must be excluded under the methodology analysis, the Court
does not address qualifications.
1
12
(Rashtian Dep. at 54–57). Dr. Rashtian also relied on a case report that found
that Taser exposure has induced rhabdomyolysis in some patients who may be
predisposed based on genetics or other unknown factors. Id. at 11 (Rashtian
Dep. at 22).
In short, Dr. Rashtian considered several possible causes like immobility
and intoxication, and then ruled them out based on the facts surrounding Mr.
Todero's death as he understood them. The parties dispute whether this is a
"differential etiology," in which a doctor "rules in all the potential causes of a
patient's ailment and then by systematically ruling out causes that would not
apply to the patient . . . arrives at what is the likely cause of the ailment."
Myers v. Ill. Cent. R.R., 629 F.3d 639, 644 (7th Cir. 2010). Defendants argue
that it was a differential etiology, while Ms. Todero argues that Dr. Rashtian
affirmatively determined Taser shocks to be the cause in addition to ruling out
alternate causes. Dkt. 206 at 23.
Labelling Dr. Rashtian's methodology is unnecessary because it cannot
support his opinions either way. Dr. Rashtian testified that Tasers can cause
rhabdomyolysis in rare situations based on genetic predisposition or other
unspecified factors. Dkt. 206-3 at 55 (Rashtian Dep. at 69). But he was
unable to testify why that would be true for Mr. Todero:
Q: "Do you know what, if any, genetic predisposition Mr.
Todero may have had?"
A: "I don't know. Again, all I know, that I'm confident
that Mr. Todero had rhabdomyolysis from the Taser.
What was his predisposing factor, what kind of a genetic
predisposition he had, I don't know."
13
Id. at 57 (Rashtian Dep. at 71) (emphasis added).
Dr. Rashtian's methodology is therefore guesswork, which cannot pass
Daubert muster. See Myers, 629 F.3d at 645 (describing etiology based on
assumptions as "a hunch or an informed guess" that cannot support an
opinion). Nor is his observation that Mr. Todero experienced rhabdomyolysis
shortly after he was tased a reliable methodology. See Ervin v. Johnson &
Johnson, 492 F.3d 901, 904–05 (7th Cir. 2007) ("The mere existence of a
temporal relationship . . . does not show a sufficient causal relationship.").
Moreover, even if Dr. Rashtian's methodology were a differential etiology,
it would not be reliable here. Differential etiology can be reliable under Daubert
on a case-by-case basis depending on "which potential causes should be 'ruled
in' and which should be 'ruled out.'" Id. But Dr. Rashtian did not reliably
reach his conclusions through differential etiology. Defendants cite, and Ms.
Todero does not challenge, a medical journal article listing exertion, medicinal
drug use, infections, endocrine disorders, and neuroleptic malignant
syndrome—but not electrical shock—as causes for rhabdomyolysis. Dkt. 194
at 1. Dr. Rashtian did not account for those potential causes. See dkt. 206-3
at 40–43 (Rashtian Dep. at 54–57). Indeed, for exertion, he testified that he
"[has]n't done research" on whether it can lead to rhabdomyolysis when
combined with extreme heat and dehydration. Id. at 87 (Rashtian Dep. at 101).
Nor did he provide any evidence that electrical shock causes rhabdomyolysis as
commonly or more commonly than those other potential causes. See id. at 11
14
(Rashtian Dep. at 22) ("Again, rhabdomyolysis is not a common complication of
Taser exposure.").
That failure to account for several other potential causes makes Dr.
Rashtian's methodology unreliable, undermining his opinion that the Taser
caused Mr. Todero's death. Several factors could have caused Mr. Todero to
experience rhabdomyolysis, including exertion, dehydration, and infection. See
dkt. 211 at 5–6. Dr. Rashtian's failure to consider those "unknown, potentially
wide-ranging variables is not a scientific exercise." Brown v. Burlington N.
Sante Fe R.R., 765 F.3d 773, 774 (7th Cir. 2014). "[S]uch guesswork" is not
"widely accepted in the scientific community." Id. (affirming the exclusion of
testimony because the medical expert's failure to consider motorcycle riding
and volunteer firefighting as potential causes for cumulative-trauma wrist,
elbow, and shoulder injuries was "flatly inconsistent with differential etiology").
In short, Dr. Rashtian found a potential cause that fit "common sense,"
and opined that it was the cause. Dkt. 206-3 at 40 (Rashtian Dep. at 54) ("So,
for me, it was just [ ] common sense."). But "[o]ther than common sense, there
was no methodology to [his] etiology." Myers, 629 F.3d at 645. "And 'the
courtroom is no place for scientific guesswork, even of the inspired sort.'" Id.
(quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996). Dr.
Rashtian therefore may not opine about what caused Mr. Todero to experience
rhabdomyolysis.
15
2. Opinions about Mr. Todero's pain
Greenwood Defendants seek to bar Dr. Rashtian from testifying about
pain from the physical effects of the Taser. Dkt. 196 at 9–11. Ms. Todero
argues that Dr. Rashtian's training and experience qualify him to opine about
the pain that Mr. Todero felt when he was tased and while he was in the
hospital. Dkt. 206 at 10–12. Greenwood Defendants argue that Dr. Rashtian
lacks experience with pain from Tasers and that opinions about Mr. Todero's
pain in the hospital would be speculative. Dkt. 196 at 10–11.
As an electrophysiologist, Dr. Rashtian is "more familiar with the
electrical effects on the body than any other practicing clinician." Dkt. 206-3
at 127 (Rashtian Dep. at 213). And he has worked with patients who had
suffered electrical injuries, mostly from power lines. Id. at 132 (Rashtian Dep.
at 220). Paired with his review of the Taser manual, that is enough education
and experience to qualify him to testify that the electricity from a Taser causes
involuntary muscle contraction, which to most people feels like pain. Id. at 120
(Rashtian Dep. at 185); see Traharne v. Wayne/Scott Fetzer Co., 156 F.Supp.2d
697, 716 (N.D. Ill. 2001).
While Dr. Rashtian cannot recall working with any patient who had been
tased, dkt. 206-3 at 80 (Rashtian Dep. at 94), that is an issue for the
adversarial process. See Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010);
Daubert, 509 U.S. at 596. Dr. Rashtian may opine about pain that Mr. Todero
may have suffered from being tased.
16
For Mr. Todero's pain while he was in the hospital, Ms. Todero cites no
evidence that Dr. Rashtian is qualified to opine on pain that someone in Mr.
Todero's situation may have felt while hospitalized. See dkt. 206 at 12. And
the qualifications section of Dr. Rashtian's report does not reveal education or
experience on this issue. See dkt. 206-1 at 3. Dr. Rashtian therefore may not
opine on Mr. Todero's pain while he was in the hospital.
3. Opinions about Dr. Kroll's research and biases
Greenwood Defendants seek to bar Dr. Rashtian from testifying about
Dr. Kroll's credibility and biases. Dkt. 196 at 11–13. Ms. Todero argues that
Dr. Rashtian may opine that Dr. Kroll used biased populations in his studies
and that Dr. Kroll is biased because he's a Taser advocate and sits on Taser's
board. Dkt. 206 at 13–14. Greenwood Defendants argue that Dr. Rashtian's
medical expertise does not qualify him to opine on Dr. Kroll's credibility. Dkt.
196 at 11–12.
Dr. Rashtian is a physician with substantial medical research
experience, but Greenwood Defendants point to evidence that he has not read
at least Dr. Kroll's most recent studies. See dkt. 206-3 at 111 (Rashtian Dep.
at 154). Ms. Todero does not argue that Dr. Rashtian has read Dr. Kroll's
articles or examined the populations studied in them. Dkt. 206 at 14. Ms.
Todero therefore has not shown that Dr. Rashtian's opinions about the
17
populations in Dr. Kroll's studies are reliable, 2 so Dr. Rashtian may not opine
on them.
Ms. Todero also provides no evidence or argument that Dr. Rashtian is
qualified to opine on whether Dr. Kroll is personally biased. See dkt. 206 at
14. Dr. Rashtian may not opine on that issue.
4. Opinions about Taser's past claims
Greenwood Defendants seek to exclude Dr. Rashtian's opinions about
past safety claims from Taser International. Dkt. 126 at 13–14. Ms. Todero
argues that Dr. Rashtian is qualified to testify about Taser's historical claims
that its products do not cause certain injuries. Dkt. 206 at 14–15. Greenwood
Defendants argue that Dr. Rashtian isn't qualified to do so because "he has no
expertise in either rhabdomyolysis or Tasers," dkt. 196 at 13, and because he
has considered the effects of Tasers only twice, dkt. 212 at 17.
While Dr. Rashtian's experience with Tasers may be limited, his medical
education and research qualify him to evaluate Taser's past claims about the
medical effects of its products, see Gayton, 593 F.3d at 616, and Defendants
have not challenged Dr. Rashtian's methodology in reaching those opinions,
see dkt. 212 at 17–18. So, to the extent it's relevant and otherwise admissible,
he may opine about the accuracy of Taser's past medical claims.
5. Opinions about underreporting of Taser-induced
rhabdomyolysis
While Greenwood Defendants call this a challenge to Dr. Rashtian's qualifications, it
is apparently a challenge to his methodology (or lack thereof) in evaluating Dr. Kroll's
articles.
2
18
Greenwood Defendants seek to exclude Dr. Rashtian's testimony that
Taser-induced rhabdomyolysis is underreported in the scientific literature.
Dkt. 196 at 14–15. Ms. Todero argues that Dr. Rashtian's extensive experience
with medical research qualifies him to testify that Taser-induced
rhabdomyolysis is underreported in the medical literature. Dkt. 206 at 16.
Greenwood Defendants argue that Dr. Rashtian lacks expertise in
rhabdomyolysis or Tasers and has not read the most relevant research. Dkt.
196 at 14.
Dr. Rashtian's research experience is relevant to his qualifications, but
whether he has read the studies that he would opine on goes to his
methodology. Ms. Todero does not argue that Dr. Rashtian has read or
analyzed the relevant studies and does not explain the methodology that Dr.
Rashtian applied to reach his opinion. Dkt. 206 at 16. Dr. Rashtian therefore
may not opine on whether the medical research underreports Taser-induced
rhabdomyolysis.
6. Opinions about excited delirium
Greenwood Defendants seek to exclude Dr. Rashtian's opinions about
excited delirium as a "wastebasket" diagnosis. Dkt. 126 at 15–16. Ms. Todero
argues that Dr. Rashtian is qualified to opine that excited delirium "is not a
recognized medical or psychiatric diagnosis." Dkt. 206 at 16. Greenwood
Defendants argue that Dr. Rashtian has not considered the medical research
on the link between excited delirium and rhabdomyolysis or recognized the
"many articles" on excited delirium published since 1985. Dkt. 196 at 19–20.
19
Ms. Todero points to no evidence that Dr. Rashtian has studied or
investigated excited delirium; only that he heard that "some of the medical
examiners" call it a "wastebasket diagnosis." Dkt. 206-3 at 70 (Rashtian Dep.
at 84). She argues that's enough—even though Dr. Rashtian has never been
taught about or trained on excited delirium, dkt. 206-3 at 8 (Rashtian Dep. at
19)—because excited delirium "does not exist" so it's not surprising that he
wasn't familiar with it. Dkt. 206 at 17. That argument, however, overlooks the
medical research on excited delirium; Ms. Todero cites no evidence that Dr.
Rashtian has reviewed or considered that research in forming his opinion. See
dkt. 212 at 19–20.
Ms. Todero therefore has not shown that Dr. Rashtian is qualified on this
topic, so he may not opine on excited delirium. Similarly, by agreement of the
parties, Dr. Rashtian may not opine "that Wikipedia and other source
documentation suggest that Taser invented excited delirium." Dkt. 206 at 18
n.4.
C. Dr. Mark Kroll
Defendants plan to call Dr. Mark Kroll as an expert in bioelectricity. Dkt.
203 at 2. Ms. Todero seeks to exclude several of his opinions.
1. Opinions about Mr. Todero's cause of death
a. Opinions about electrocution's role
Ms. Todero argues that Dr. Kroll's opinions ruling out electrocution as a
cause of death are irrelevant because electrocution is not an issue. Dkt. 202 at
20
9. Because these arguments focus on relevance instead of Daubert, the Court
defers ruling on this issue for a potential motion in limine.
b. Opinions about Taser shocks' role
Ms. Todero seeks to exclude several opinions about the role the Taser
played in causing Mr. Todero's death. Dkt. 202 at 9–14.
i. Qualifications
Ms. Todero seeks to exclude Dr. Kroll's opinion that Taser use was the
"best opportunity to save [Mr. Todero's] life." Dkt. 202 at 11. Greenwood
Defendants argue that Dr. Kroll has published research on numerous deaths
indirectly caused by Tasers, but do not address his qualifications to offer
opinions on police practices and force options. See dkt. 203 at 8–10. Ms.
Todero contends that Dr. Kroll "admits he has no experience in police practices
beyond a general familiarity with the statistics comparing Tasers to other uses
of force." Id. Dr. Kroll therefore may not opine on police officers' alternatives
to using a Taser or whether the Taser use was prudent.
ii. Methodology
For Dr. Kroll's other opinions on the Taser shocks, the parties dispute
whether he applied a reliable methodology to reach the opinion that the shocks
did not cause Mr. Todero's death. Ms. Todero argues that "[Dr. Kroll] offers no
analysis of how he reaches such a broad, generalized conclusion other than to
claim that he rejects electrocution as a cause of death." Dkt. 202 at 12. She
contends that his opinions are pre-formulated conclusions unsupported by
analysis or methodology. Dkt. 209 at 4–5. Defendants argue that Dr. Kroll's
21
conclusions are based on published work and peer-reviewed papers, "including
detailed timelines used to analyze the facts." Dkt. 203 at 9-12.
The focus is on the Dr. Kroll's methodology, not his ultimate conclusions.
Kopplin v. Wisc. Cent. Ltd., 914 F.3d 1099, 1104 (7th Cir. 2019). An expert
may offer conclusions that are subject to doubt if they are based on valid
methodology. Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781 (7th Cir.
2017). The methodology must present a "rational connection between the data
and the opinion." Id. at 781 (quoting Manpower, Inc. v. Ins. Co. of Penn., 732
F.3d 796 (7th Cir. 2013)).
Dr. Kroll explains—and Ms. Todero does not dispute—that Mr. Todero's
creatine kinase ("CK") levels were elevated and "are diagnostic of
rhabdomyolysis." Dkt. 202-1 at 42. He then cites published research
concluding that "[e]lectronic control simply does not cause more than trivial
increases in CK levels—and far less than those seen in safe exercise workouts."
Id. at 43. Ms. Todero appears not to challenge that methodology, so Dr. Kroll
may opine on the Taser's role in causing Mr. Todero to experience
rhabdomyolysis. See Smith v. Ford, 215 F.3d 713, 719 (7th Cir. 2000) (quoting
Daubert, 509 U.S. at 593-94).
However, Defendants do not point to methodology supporting a broader
opinion that Taser shocks were wholly unrelated to Mr. Todero's death. See
dkt. 203 at 11. Dr. Kroll therefore may not opine generally that Taser shocks
played no role in Mr. Todero's death.
2. Opinion about amount and duration of "electronic control"
22
Ms. Todero seeks to exclude Dr. Kroll's opinions about the amount and
duration of electricity the Taser discharged into Mr. Todero's body. Dkt. 202 at
14–19. Greenwood Defendants argue that Dr. Kroll's conclusions should not
be excluded because, while the facts are disputed, his science and methodology
are reliable and he will "explain the facts upon which his testimony and
opinions are based." Dkt. 203 at 12. Ms. Todero argues that Dr. Kroll bases
his opinions on disputed facts "without applying any specialized knowledge
from his field of expertise" and rather "simply conducts the same analysis of
disputed facts that the jury will be asked to conduct." Dkt. 202 at 15.
Under Daubert, Dr. Kroll may opine about Tasers if his "scientific,
technical, or other specialized knowledge will help the trier of fact to
understand the evidence or determine a fact in issue." Robinson, 913 F.3d at
695 (citing Daubert, 509 U.S. at 593-94). That's the case here because, as
discussed above, jurors are likely to be unfamiliar with Tasers, especially the
amount and duration of electronic control coming from a Taser. See Abbott v.
Sangamon County, Illinois, 705 F.3d 706, 726 (7th Cir. 2013); accord Brown,
871 F.3d at 538 (explaining that expert testimony may be helpful when police
used tools such as a gun, mace, or a slapjack). So, as a general matter, Dr.
Kroll's "specialized knowledge" of Tasers would benefit the jury. Brown, 871
F.3d at 537.
More specifically, Dr. Kroll seeks to opine that a single probe landed in
Mr. Todero's body and that the trigger pulls delivered no current to Mr. Todero.
Ex. A at 25-26. Those opinions turn on disputed facts; whether (1) the lower
23
Taser probe made a complete connection with Mr. Todero, (2) the Taser was
functioning properly. Dkt. 202-1 at 25–26. The parties also dispute whether
any of the Taser trigger pulls were inadvertent. See id. at 18.
Defendants do not argue that Dr. Kroll is qualified to testify whether
those facts are true, so he may not opine that disputed underlying facts are
true. Dkt. 203 at 12 ("Kroll does not intend to use his expertise to tell the jury
how they should resolve certain factual disputes."). However, that these facts
are disputed does not change the admissibility of Dr. Kroll's opinions—he may
"give an opinion to the jury concerning the facts," even if those facts are
disputed. Lapsley v. Xtek, Inc., 689 F.3d 802, 809 (7th Cir. 2012); see Stecyk
v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3rd Cir. 2002). The jury will
decide whether the underlying facts are true, and "the burden of exploring the
facts and assumptions underlying the testimony of an expert witness is on
opposing counsel during cross-examination." Stecyk, 295 F.3d at 414; see also
Daubert, 509 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.").
Therefore, as with Dr. Clark—see above at pages 7 and 8—Dr. Kroll may
identify and explain the facts and evidence underlying his opinions, but may
not attempt to resolve factual disputes for the jury. See Lapsley, 689 F.3d at
809 (expert testimony must "have a factual basis"). Dr. Kroll may opine about
the amount and duration of electricity Mr. Todero was subjected to as long as
24
that testimony has a factual basis. Id. However, Dr. Kroll admits that his
opinions on the premature trigger pulls and broken wires are not supported by
record evidence. Dkt. 202-5 at 181–82, 191 (Kroll Dep. at 179–180, 189).
They therefore do not "have a factual basis," Lapsley, 689 F.3d at 809, so Dr.
Kroll may not opine that they affected the amount of duration of electricity Mr.
Todero was subjected to.
3. Opinions about general safety of Tasers
Ms. Todero argues that Dr. Kroll's opinions about the general safety of
Tasers are irrelevant. Dkt. 202 at 26. Greenwood Defendants argue that his
opinions on Tasers, including how they work, the science and technology
behind Tasers, their safety, and their effects on the human body are relevant.
Dkt. 203 at 24–25. Because these arguments focus on relevance instead of
Daubert, the Court defers ruling on this issue for a potential motion in limine.
4. Opinions on Plaintiff's experts
Ms. Todero seeks to exclude Dr. Kroll's opinions about Mr. Clark's and
Dr. Rashtian's opinions. Dkt. 202 at 27–31. The parties also dispute whether
Dr. Kroll's opinions are relevant.
a. Opinions on Mr. Clark's testimony
Greenwood Defendants argue that Dr. Kroll is qualified to explain the
science and to state the opinion that the science does not support the claimed
police policy. Dkt. 203 at 27. Ms. Todero argues that because Dr. Kroll has no
training or expertise in police practices, he is unqualified to opine about Mr.
25
Clark's opinions about nationally accepted standards on Tasers and Mr.
Todero's ability to comply with Officer Blackwell's commands. Dkt. 202 at 27.
Dr. Kroll's report states that "[e]very day, law-enforcement officers use
pain compliance techniques," and Mr. Clark's "opinion that pain would
interfere with compliance goes against all police training and experience." Dkt.
202-1 at 38. These opinions about police training and experience and lawenforcement techniques go beyond his expertise as a biomedical scientist. See
dkt. 202-5 at 154-155. Dr. Kroll therefore may not opine on Mr. Clark's
opinions about police training and experience.
b. Opinions on Dr. Rashtian's opinions
Greenwood Defendants argue that "[t]he fact that [Dr. Kroll] is a scientist
and not a medical doctor does not render him unqualified" to comment on Dr.
Rashtian's opinions. Dkt. 203 at 28. Ms. Todero argues that Dr. Kroll is not a
medical doctor and therefore "expands into areas in which he is not qualified to
opine" by commenting on medical causal connections between electricity and
rhabdomyolysis. Dkt. 202 at 29. To opine on what caused Mr. Todero to
experience rhabdomyolysis, Dr. Kroll must be qualified by "knowledge, skill,
experience, training, or education." Hall, 840 F.3d at 926 (quoting Fed. R.
Evid. 702).
A lack of a medical degree or any medical training can render an expert
witness unqualified to give expert testimony on medical questions. See e.g.,
Goodwin v. MTD Prods., Inc., 232 F.3d 600, 609 (7th Cir. 2000) (an expert with
a degree in mechanical engineering was not qualified to give expert testimony
26
on medical questions, including the cause of an eye injury); Jones v. Lincoln
Elec. Co., 188 F.3d 709, 723–24 (7th Cir. 1999) (a witness who had a
mechanical engineering degree but lacked a medical degree or medical training
was not qualified to give expert testimony on medical questions about the
effects of manganese and manganese fumes on the human body). But whether
a person who is not a doctor is qualified to offer expert testimony on a medical
question is an individual, fact-specific inquiry and the facts here support the
admissibility of Dr. Kroll's opinion. See Hall, 840 F.3d at 926.
Dr. Kroll is a biomedical scientist with a primary specialty in
bioelectricity. His primary focus is on the effect of electrical shocks on the
human body. Ex. A at 5. He holds a Ph.D. and M.S. in Electrical Engineering.
Ex. D at 2. Dr. Kroll also researches and develops electrical devices to
diagnose and treat disease. He has authored over 200 abstracts, papers, and
book chapters, and has served as co-editor of four books including the only two
scientific treatises on Tasers. Ex. A at 5.
Although Dr. Kroll is not a medical doctor, he is qualified to comment
science behind the effects of exposure of electricity on the human body,
including the causes of rhabdomyolysis. Dr. Kroll therefore may opine about
Dr. Rashtian's opinions on that topic, subject to any future rulings in limine on
issues such as relevance.
D. Greenwood Defendants' motion to substitute Dr. Vilke for Dr.
Wetli
Greenwood Defendants have filed a motion to substitute Dr. Vilke as an
expert for Dr. Wetli, who is incapacitated and will not be able to testify at trial.
27
Dkt. 217. Ms. Todero "agrees that it would not be 'just' to permit Dr. Wetli's
unfortunate and unforeseen health problems to be the cause of Defendants'
inability to present expert medical testimony at the upcoming trial." Dkt. 221
at 4; see Stringer v. Cambria Fabshop—Indianapolis, LLC, No. 1:13-cv-659SEB-TAB, 2015 WL 13632234 at *2 (S.D. Ind. Oct. 2, 2015). She objects only
that the substitution should not place Defendants in a better position than
they would have been with Dr. Wetli's testimony, asking the Court to rule on
her motion to exclude Dr. Wetli's testimony before ruling on the motion to
substitute. Dkt. 221 at 1, 4, 10–12.
Ms. Todero argues that it would be "highly inefficient" to require Daubert
briefing on Dr. Vilke's opinions based on alleged flaws in Dr. Wetli's opinions.
Dkt. 221 at 7. But Ms. Todero agrees that approach "would obviate the
windfall to Defendants," id. at 7, and other Courts have taken that route.
Moreover, it would be at least as inefficient to issue an advisory opinion on Dr.
Wetli's expert testimony, only some of which may affect Dr. Vilke's testimony.
If Ms. Todero believes that any of Dr. Vilke's testimony should be excluded
because it goes beyond the subject matter of Dr. Wetli's testimony, she can
incorporate her previous arguments and any new ones into a future Daubert
motion.
Greenwood Defendants' motion to substitute expert witness is therefore
GRANTED, dkt. [217], and Ms. Todero's motion to bar Dr. Wetli's expert
testimony is DENIED as moot, dkt. [199].
28
Dr. Vilke shall have through September 30, 2020 to complete his expert
report. Ms. Todero shall have through October 30, 2020 to depose Dr. Vilke.
Objections to Dr. Vilke's expert testimony shall be filed by November 30,
2020.
IV.
Conclusion
Greenwood Defendants' motion to substitute expert witness is
GRANTED, dkt. [217], and Ms. Todero's motion to bar Dr. Wetli's expert
testimony is DENIED as moot, dkt. [199]. Dr. Vilke shall have through
September 30, 2020 to complete his expert report. Ms. Todero shall have
through October 30, 2020 to depose Dr. Vilke. Objections to Dr. Vilke's
expert testimony shall be filed by November 30, 2020.
The remaining motions to exclude expert testimony are GRANTED in
part and DENIED in part. Dkt. [191]; dkt. [193]; dkt. [195]; dkt. [197]; dkt.
[201].
This order is subject to future rulings, such as orders in limine. Each
party SHALL ENSURE that its experts understand and follow this order and all
future orders relevant to their testimony. The Court expects all counsel—who
are experienced, sophisticated lawyers—to prepare the expert witnesses
accordingly.
SO ORDERED.
29
Date: 9/16/2020
Distribution:
Steven E. Art
LOEVY & LOEVY
steve@loevy.com
Scott R. Drury
LOEVY & LOEVY
drury@loevy.com
D. Samuel Heppell
LOEVY & LOEVY
sam@loevy.com
Mark A. Holloway
STEPHENSON MOROW & SEMLER
mholloway@stephlaw.com
Theresa Kleinhaus
LOEVY & LOEVY
tess@loevy.com
Arthur Loevy
LOEVY & LOEVY
arthur@loevy.com
Jonathan I. Loevy
LOEVY & LOEVY
jon@loevy.com
Caren L. Pollack
POLLACK LAW FIRM, P.C.
cpollack@pollacklawpc.com
Pamela G. Schneeman
STEPHENSON MOROW & SEMLER
pschneeman@stephlaw.com
James S. Stephenson
30
STEPHENSON MOROW & SEMLER
jstephenson@stephlaw.com
Zachary J. Stock
POLLACK LAW FIRM PC
zstock@pollacklawpc.com
Lana R. Swingler
POLLACK LAW FIRM PC
lswingler@pollacklawpc.com
31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?