Boerste v. Ellis, LLC et al

Filing 250

Order: The Court overrules Plaintiff's objections (DN 248 ) and adopts the report and recommendations (DN 246 ) granting in part and denying in part the parties' motions to exclude expert testimony. cc: Counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
BRYAN TYLER BOERSTE

Plaintiff

v.

No. 3:17-cv-298-BJB-CHL

ELLIS, LLC, ET AL.,

Defendants
* * * * *
MEMORANDUM OPINION AND ORDER

Brian Boerste suffered severe injuries after falling off his car while it was being
towed. Seeking to recover for those injuries, Boerste sued several defendants on
several theories of liability. He and many of the defendants disclosed expert
witnesses in support of their claims and defenses, and eventually filed dueling
motions to exclude some of the proposed testimony. See DNs 178, 179, 180, 181, 182,
183, 184. The Court referred these motions to Magistrate Judge Lindsay for a report
and recommendation under Federal Rule of Civil Procedure 72(b). DN 195. His
report recommended granting some of the motions and denying others. Report and
Recommendation (DN 246).
Boerste objected to Judge Lindsay’s recommendations that the Court: (1)
partially exclude Charles Drago’s testimony regarding police standards on relevance
and reliability grounds, despite the defendants moving for his disqualification on
different grounds; (2) exclude Dr. William Smock’s testimony on the appropriateness
of defendants’ conduct; and (3) deny Boerste’s motion to exclude Dr. Thomas Ireland’s
rebuttal testimony on economic losses.
DN 248.
After reviewing the
recommendations, Boerste’s objections, and the parties’ arguments raised during a
hearing on the objections, the Court agrees with Judge Lindsay’s recommendations
and adopts them in full.
BACKGROUND
Because Judge Lindsay ably described the relevant facts, the Court will
recount only the information important to the objected-to rulings. Reviewing the
numerous motions to exclude that the Court referred, Judge Lindsay recommended
that:
(1) The Motion to Exclude Testimony of Charles W. Drago (DN 178) be
granted in part and denied in part by excluding Drago’s testimony about
private security practices and defendant Baker and excluding Drago’s
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testimony about general police practices and their application but
permitting Drago to testify regarding Cotton’s alleged non-compliance
with the Springfield Police Department Policies specified in his opinion;
(2) The Motions to Exclude Testimony of Joseph Stidham (DN 179, 183) be
denied;
(4) The Motion to Exclude Testimony of Dr. William Smock (DN 180) be
granted and Dr. Smock’s opinions regarding the appropriateness of
Cotton and Bewley’s conduct be excluded from trial;
(5) Boerste’s Motion for Leave to File a Surreply (DN 229) be granted and
that the Clerk be directed to detach and separately file Boerste’s
proposed surreply (DN 229-1);
(6) The Motion to Exclude Testimony of David Gibson (DN 181) be denied;
(7) Defendants’ Motion for Leave to file a response out of time (DN 231) be
granted and that the Clerk be directed to detach and separately file
Defendants’ proposed response (DN 231-1);
(8) Boerste’s Motion to Exclude Testimony of Dr. Thomas Ireland (DN 182)
be denied; and
(9) Boerste’s Motion to Exclude Certain Opinions of Dr. Sullivan (DN 184)
be denied.
See R&R (DN 246) at 44.
Boerste timely objected to three of Judge Lindsay’s recommendations:
(1) The Magistrate Judge’s sua sponte exclusion of parts of Charles Drago’s
testimony based on relevance and reliability concerns (DN 248 at 1–18);
(2) The Magistrate Judge’s exclusion of Dr. William Smock’s testimony, id.
at 18–20;
(3) The Magistrate Judge’s denial of Boerste’s motion to exclude the
testimony of Dr. Thomas Ireland, id. at 20–22.
DISCUSSION
The Court reviews de novo the portions of the recommendation that Boerste
objected to. See Fed. R. Civ. P. 72(b)(3). And because Boerste waives objections not
raised, the Court’s review is limited to those specific objections. See Carter v.
Mitchell, 829 F.3d 455, 472 (6th Cir. 2016) (“the failure to file specific objections to a
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magistrate’s report constitutes a waiver of those objections”) (quoting Cowherd v.
Million, 380 F.3d 909, 912 (6th Cir. 2004)).
Federal Rule of Evidence 702 provides that “[a] witness who is qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form
of an opinion” if the testimony satisfies four requirements:
(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.
The Sixth Circuit has interpreted the Daubert line of cases and Rule 702 as
establishing a three-part requirement: (1) the witness must be qualified by
knowledge, skill, experience, training, or education; (2) the testimony must be
relevant, meaning that it will assist the trier of fact to understand the evidence or to
determine a fact in issue; and (3) the testimony must be reliable, or based on sufficient
facts and reliable methods. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528–29
(6th Cir. 2008) (internal quotation marks and citations omitted).
An expert can be qualified based on “knowledge, skill, experience, training, or
education.” Fed. R. Evid. 702. Experts who rely primarily on their experience must
“explain how that experience leads to the conclusion reached … and how that
experience is reliably applied to the facts.” Thomas v. City of Chattanooga, 398 F.3d
426, 432 (6th Cir. 2005) (quoting Fed. R. Evid. 702 advisory committee’s note).
Expert testimony is relevant under Rule 702 if it “will assist the trier of fact to
understand the evidence or to determine a fact in issue.” In re Scrap Metal Antitrust
Litig., 527 F.3d at 529 (quoting Rule 702). “Helpful opinions do not ‘merely tell the
jury what result to reach’ … [or] ‘addres[s] matters that [are] equally within the
competence of the jurors to understand and decide.’” Youngberg v. McKeough, 534
F. App’x 471, 479 (6th Cir. 2013) (quoting McGowan v. Cooper Indus., Inc., 863 F.2d
1266, 1272 (6th Cir.1988)).
In assessing reliability, the Court’s focus “must be solely on principles and
methodology, not on the conclusions that [experts] generate.” Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 595 (1993). The Supreme Court identified a nonexhaustive list of factors that may help the Court in assessing the reliability of a
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proposed expert’s opinion: (1) whether a theory or technique can be or has been tested;
(2) whether the theory has been subjected to peer review and publication; (3) whether
the technique has a known or potential rate of error; and (4) whether the theory or
technique enjoys “general acceptance” within a “relevant scientific community.” Id.
at 592–94.
Applying these
recommendations.

standards,

the

Court

agrees

with

Judge

Lindsay’s

I. Charles Drago
Charles Drago served in law enforcement at various levels for decades,
investigating crimes, creating policies, and training officers. Boerste offers Drago to
testify about general standards of care for police, specific policies in the Springfield
Police department, and how Officer Cotton’s conduct allegedly violated each. See DN
112-1 (Drago’s Expert Report). Defendants moved to exclude Drago on the grounds
that he was unqualified to testify about police standards in Kentucky. DN 178 at 2.
Judge Lindsay disagreed, recommending that Drago was qualified. R&R at 11. But
the report then sua sponte recommended that the Court exclude Drago’s testimony
regarding general police practices because it would be unhelpful to the jury, and thus
irrelevant and unreliable. Id. According to Judge Lindsay, a lay person could assess
the reasonableness of the defendants’ conduct without the aid of an expert’s opinion
on general standards of police practice. Id. at 12. He recommended, however, that
Drago could testify about specific Springfield Police Department Policies discussed in
Drago’s report and how Officer Cotton’s conduct did or did not conform to them. Id.
at 13.
Boerste objects on procedural grounds to Judge Lindsay’s decision to raise
these issues sua sponte, which allegedly deprived him of a chance to respond. DN 248
at 1–17. He also objects substantively to the exclusion of Drago’s testimony regarding
general police practices. Id. The Court held a hearing to address Boerste’s procedural
concerns and allow counsel to explain their positions. DN 249. Having heard both
sides on this issue, the Court agrees with Judge Lindsay’s recommendation, grants
the motion to exclude Drago’s testimony regarding general police standards, and
denies the motion with respect to Drago’s testimony about specific Springfield Police
Department policies and their application to this case. See DN 178.*

The ruling above applies to Drago’s proposed testimony regarding Officer Cotton. Judge
Lindsay also recommended excluding Drago’s testimony about private-security standards
and their application to Defendant Baker’s conduct. R&R at 14–15. Boerste did not object
to this recommendation and Judge Lindsay’s analysis is sound. So the Court adopts the
recommendation in full.
*

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A. Procedural concerns
The main thrust of Boerste’s objection is that Judge Lindsay sua sponte raised
issues with Drago’s testimony, did not do this for other experts, and did not give
Boerste a chance to respond during the year these Daubert motions were pending.
But Judge Lindsay did nothing wrong. Multiple courts of appeal have held
that district courts may raise Daubert issues sua sponte without a hearing, so long
as an adequate record supported the courts’ review. “A district court's Daubert
inquiry need not take any specific form, and its sua sponte consideration of the
admissibility of expert testimony is permissible so long as the court has an adequate
record on which to base its ruling.” Miller v. Baker Implement Co., 439 F.3d 407, 413
(8th Cir. 2006); see also Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998).
Boerste cites nothing indicating a magistrate judge could not do the same. If
anything, a magistrate judge’s sua sponte consideration of an admissibility concern
carries more protection for the parties, who may submit written objections (as Boerste
did here) and expect review and consideration by the district judge (as also happened
here). Drago’s report certainly gave both reviewing judges an adequate record to
work with.
The caselaw Boerste cites to the contrary say only that a judge is not required
to raise issues sua sponte—not that they are prohibited from doing so. See McKnight
By and Through Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1407 (8th Cir. 1994)
(“To the extent that JCI is arguing that the district court was required to exercise its
gatekeeping authority over expert testimony without an objection, we disagree.”);
Macsenti v. Becker, 237 F.3d 1223, 1233 (10th Cir. 2001) (Daubert does not “overrid[e]
the general requirement of a timely objection to the evidence,” such that sua sponte
analysis is required). All this underscores the trial court’s discretion, including the
discretion to address admissibility concerns in the court’s gatekeeping role at an
appropriate time in a complex case. It does not imply a strict rule that a judge must
address the same issues at the same time for all experts.
In any event, any hypothetical procedural error would be harmless. The
district court undoubtedly could have sua sponte raised the same issues the
Magistrate Judge did. Or the district court could afford the objecting party a full
opportunity to raise any and all concerns with the procedural and substantive aspects
of the Magistrate Judge’s ruling, which it did.
Boerste offers no authority indicating the opportunity to object and have a
hearing with de novo review would not cure his procedural concerns. DNs 248, 249.
The Court referred the motions under Rule 72(b), which governs dispositive motions
and requires de novo review for objections. See DN 195. Yet Boerste contends—
against his apparent interest in overturning the recommendation—that these are
non-dispositive motions that must be reviewed only for clear error under Rule 72(a).
Boerste also worries, counterfactually, that he might not even be allowed to object to
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an issue that was not raised before the magistrate. See Paterson-Leitch Co., Inc. v.
Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) (issues not
raised before the magistrate are forfeited).
But regardless of whether Rule 72(a) or (b) applies, and regardless of whether
Boerste could or did object, a district court retains inherent authority to review any
aspect of the magistrate judge’s recommendation de novo. See Butterworth v. Lab’y
Corp. of Am. Holdings, 2016 WL 3901379, at *1 (M.D. Fla. July 19, 2016) (reviewing
a recommendation under Rule 72(a) de novo); Stephens v. Tolbert, 471 F.3d 1173,
1176 (11th Cir. 2006) (lack of objection does not prevent de novo review in district
court’s discretion). “[W]hile the [Federal Magistrates Act] does not require the judge
to review an issue de novo if no objections are filed, it does not preclude further review
by the district judge, sua sponte or at the request of a party, under a de novo or any
other standard.” Thomas v. Arn, 474 U.S. 140, 154 (1985) (district judge made de
novo determination despite absence of objection by petitioner to magistrate judge’s
findings) (emphases added). Indeed, Rule 72(a) says the Court “must” set aside
objected-to issues that are “clearly erroneous or … contrary to law.” It doesn’t say
the Court may not otherwise reject a magistrate judge’s rulings. This leaves trial
judges ample discretion to review a magistrate judge’s order on other bases, including
de novo review of an issue not fully briefed before an R&R. Cf. Leelanau Wine Cellars,
Ltd. v. Black & Red, Inc., 118 F. App’x. 942, 946 (6th Cir. 2004) (District courts have
inherent authority under common law (or Rule 54(b)) to “reconsider, rescind, or
modify an interlocutory order for cause seen by it to be sufficient,” such as evidentiary
rulings). Put another way, Boerste identifies no rule of law that would bar a district
judge from addressing a question of admissibility that a magistrate judge has not first
addressed. Likewise, nothing bars the Court from revisiting or raising afresh—after
briefing and argument—a conclusion a magistrate judge raised sua sponte.
Since the Court asked the Magistrate Judge here to provide a report and
recommendation, the Court will review it as such and address objections de novo—
the more favorable standard from Boerste’s perspective. Because he had a chance to
object to the reasons recommended for exclusion, participated in a hearing on the
issue, and received de novo review of his objections, no procedural basis exists to
reject Judge Lindsay’s report.
B. Relevance and reliability
A district court exercises “broad discretion as a ‘gatekeeper’” when determining
whether expert testimony is helpful to the jury. Pride v. BIC Corp., 218 F.3d 566,
578 (6th Cir. 2000). Such testimony is unhelpful when the subject matter is “not
beyond the ken of the average juror.” United States v. Rios, 830 F.3d 403, 413 (6th
Cir. 2016) (quoting United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir. 1994)). “In
cases involving law-enforcement experts,” the Sixth Circuit has required district
courts to determine whether “‘without expert testimony, the average juror is unlikely

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to understand’ the material about which the expert proposes to testify.” Id. (citation
omitted).
Applying this standard, Judge Lindsay recommended excluding Drago’s
testimony about general police standards and their application to Cotton’s conduct.
Regardless of Drago’s general statements about his own views on proper police
practices, Judge Lindsay concluded, the average lay juror “without experience in
policing” could still largely “listen to the testimony from the other fact witnesses and
make his or her own conclusions as to the reasonableness and appropriateness of
Cotton’s actions.” R&R at 12. Judge Lindsay correctly observed that “Drago often
fail[s] to cite … any … recognized police policies and procedures,” but instead offers
opinions “largely couched in terms of general statements” that rest on “little authority
or specific practices.” Id.
Among these “conclusory” statements are Drago’s opinions that Cotton did not
“follow accepted police practices” for “controlling the situation” and “protecting …
individuals associated with the event” (DN 112-1 at 5); that he “had a duty to protect
the public” (id. at 6); that “police training dictates” he take “some action” to protect
the Plaintiff from driving Plaintiff’s car (id.); that he had “clear responsibility to take
control” over the “tow truck driver” and “towing process” (id. at 7); and that he had a
duty to “prevent anyone from placing anyone else in harm’s way” (id.). See R&R at
13 (internal quotations omitted).
Judge Lindsay was quite right that the details of “accepted police practices”
and “police training” would help the jury—but not these conclusory opinions. Id.
Importantly, Judge Lindsay did not recommend excluding all of Drago’s testimony;
he concluded that expert testimony regarding specific Springfield Police policies could
help provide a baseline for lay jurors. Id. These aspects of Drago’s disclosed opinions
and testimony more directly and reliably connect relevant aspects of the Defendants’
training and duties to the events at issue here. Boerste nevertheless objects that the
entirety of his proposed testimony on police procedures, resting on his own ample
experience, is reliable and would help the jury. DN 248 at 10–17. The limitation on
Drago’s testimony, therefore, hardly leaves Drago without anything to say at trial;
the recommended limitations will helpfully streamline the evidence before the jury
without unduly prejudicing Boerste’s ability to present his proof.
Judge Lindsay correctly distinguished an expert’s general experiences and
more specific policies—not just as a matter of trial management and evidentiary
gatekeeping, but also as matter of governing caselaw. This division is reflected in
similar precedent dealing with law-enforcement experts. The Sixth Circuit, for
example, has ruled that there is “no such ‘field’ as ‘police policies and practices,’” given
that the term is “so broad as to be devoid of meaning.” Berry v. City of Detroit, 25
F.3d 1342, 1352 (6th Cir. 1994). Although that case primarily concerned the witness’s
qualifications, the Court also discussed the relevance and reliability of testimony
regarding general police practices. It noted—in terms echoed in the decision Boerste
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challenges here—that the witness’s conclusory and generalized testimony could not
help the jury, but would instead amount to telling the jury that witness’s view on
what the law was and what conclusions to reach. Id. at 1352–54. In contrast with
such generalized knowledge and conclusions, the Sixth Circuit has—again like the
R&R at issue—affirmed a district judge’s decision to admit more focused testimony
about a “discrete aspect of police practices, namely use of excessive force, based upon
his particularized knowledge about the area.” Champion v. Outlook Nashville, Inc.,
380 F.3d 893, 908 (6th Cir. 2004).
Subsequent decisions navigating this divide have agreed that “basic principles
that officers learn about armed suspects” “arguably fall within the realm of common
knowledge and common sense” and are therefore not helpful to the jury. Goodwin v.
Richland Cty., 832 F. App'x 354, 359 (6th Cir. 2020) (quoting 4 Jack B. Weinstein &
Margaret A. Berger, Weinstein's Federal Evidence § 702.03[2][b]). The Seventh
Circuit similarly has held that experts may describe specific professional standards
and departures from them in a manner that sets a useful baseline for a jury charged
with making a negligence determination. See Jimenez v. City of Chicago, 732 F.3d
710, 721–22 (7th Cir. 2013). But the same decision recognized that expert testimony
regarding general standards and opinions runs the risk of bleeding into legal
conclusions that the jury should not hear. Id.
The same logic applies to Drago’s testimony. His broad statements, untethered
to specific Springfield standards, raise at least two concerns. First, the portions of
the witness’s disclosed opinions pontificate on broad principles of reasonableness
without grounding the standards or analysis in any sources or authority aside from
his own views. Drago does this when he discusses—without citing any support—the
many “duties” of officers generally and the specific alternatives Cotton could have
taken. DN 112-1 at 6–7. Drago asserts that “any reasonable police officer would have
recognized that Boerste was in danger when he sat on top of his vehicle while the
vehicle was on a moving tow truck.” Id. at 9. This applies no reliable method or
authority, and neither judge nor jury has any way to assess the reliability of this
opinion. A jury could determine for itself the alternatives that may have been
reasonable, and the dangers that a reasonable person should have perceived. These
conclusory statements do not rest on any expertise that could help the jurors in this
case. See Dhillon v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001) (“[S]uch
an idea is based on common sense. This means, however, that the district court was
well within bounds to conclude that expert testimony on [this subject] … was
inadmissible.”).
Second, these generalized statements come close to expressing legal opinions
or answering the ultimate question of liability. See Berry, 25 F.3d at 1353 (general
opinions that come close to legal opinions or the question of liability are
impermissible); Albert v. City of Petal, 819 F. App’x 200, 202–03 (5th Cir. 2020)
(expert witnesses should not express conclusions of law). This helps answer Boerste’s
question why specific policies and their potential violation comprise appropriate
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expert testimony, while ultimate opinions about whether an officer’s conduct was
excessive or unreasonable under the Fourth Amendment is not. See Stamps v. Town
of Framingham, 813 F.3d 27, 32 (1st Cir. 2016). Even if Drago’s testimony was not
disclosed in those particular terms, his opinion that Cotton had a general “duty” and
probable cause to arrest Boerste certainly approaches the line. DN 112-1 at 6.
In contrast, Drago identifies specific statutes and Springfield Police policies
that he applies to Cotton’s conduct. DN 112-1 at 8–9. Nothing suggests a jury would
be familiar with these specific policies. And their purported violation may help set a
baseline of reasonable behavior that is more particularized to the incident in this
case. See Jimenez, 732 F.3d at 721–22. In the Court’s view, Judge Lindsay correctly
concluded that testimony explaining and applying these specific policies would be far
more helpful to the jury while avoiding the risks of conclusory opinions untethered to
sources beyond Drago’s own views.
II. Dr. William Smock
Dr. Smock is a surgeon who serves as the lead physician for several police and
fire departments. He has taught at a police academy and participated in internal
investigations regarding excessive force. Part of Dr. Smock’s proffered testimony
appropriately concerned “the nature and extent of injuries suffered by Boerste.” R&R
at 21 (citing Defts’ Reply at 7113). But part included opinions related to the
appropriateness of Cotton’s and Bewley’s conduct. See DN 224 at 50–53, 59, 72.
Judge Lindsay recommended excluding this testimony because Dr. Smock is not
qualified to opine on appropriate police practices—only Boerste’s injuries. R&R at
24. This is too narrow a view of a police surgeon’s qualifications, according to Boerste,
because Dr. Smock regularly works with law enforcement and surely understands it
better than a lay person. DN 248 at 18–20. But Dr. Smock’s expertise undoubtedly
rests on his training and experience in medicine—his primary field—not on his
secondary experience in law enforcement. Judge Lindsay correctly concluded that
Dr. Smock is not qualified to discuss police procedures or the conduct of the
defendants.
Much like Drago, Dr. Smock cannot testify about general police practices and
whether and how the defendants’ conduct may have conformed with such standards.
At best, Dr. Smock is qualified to discuss excessive force, which appears not to be at
issue in this case. Nor is there a question about how Boerste was injured that might
implicate Dr. Smock’s overlapping medical and police experience. The questions,
rather, are distinct: the appropriateness of the defendants’ conduct, on the one hand,
and the extent of Boerste’s injuries, on the other. Nothing indicates Dr. Smock has
specific training on or experience with police practices related to incidents like this,
much less the practices of tow truck drivers like Bewley. Dr. Smock even admitted
that his role in this case “was to document the injuries, what happened, how they
happened,” not to opine on fault. DN 224 at 89:14–90:6. He may testify about
Boerste’s injuries, but not the conduct or fault of any actor. In line with Judge
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Lindsay’s recommendation, the Court rejects Boerste’s objection and grants the
motion to exclude Dr. Smock’s testimony on this matter (DN 180).
III.

Dr. Thomas Ireland

Dr. Ireland is a forensic economist proffered by the defendants to testify on
Boerste’s earning capacity and critique the methodology and conclusion of Boerste’s
expert, Gibson, on the same subject. Boerste moved to exclude Dr. Ireland’s
testimony on the grounds he is not qualified in vocational rehabilitation, offers no
alternative calculation of earnings loss, and admits he has no opinion on whether
Boerste has a loss. R&R at 36–37; DN 248 at 20–22. The Court agrees with Judge
Lindsay, however, that Dr. Ireland is qualified to offer an opinion on Boerste’s
earnings loss and a critique of Boerste’s expert testimony that would likely help the
jury.
Dr. Ireland is qualified as a forensic economist and can opine on how earnings
change and diverge across time. Indeed, looking at real-world earnings, Dr. Ireland
concludes that “Boerste is earning far more than the average for [his] sex, age and
education and far more than he was earning at the time of his injury on April 26,
2016. Thus, there is no evidence of earnings loss.” DN 134-1 at 2. Evidence that
Boerste is making more today than others similarly situated and more than at the
time of his injury bears directly on Boerste’s claim for lost earnings. Dr. Ireland does
not need to offer a final calculation of potential losses for this testimony to be relevant.
The point is to critique and undermine Gibson’s methodology and conclusions, which
will help a jury evaluate lost earning capacity.
Boerste argues that even Dr. Ireland admits he cannot conclude that Boerste
suffered no loss. DN 182-2 at 91:1–22. In context, however, Dr. Ireland is saying
that from his perspective as an economist, Boerste does not appear to have suffered
any particular earnings loss based on the evidence supplied to him and relied on by
Gibson. Id. But this does not mean Boerste did not suffer some other type of
quantifiable loss; Ireland’s opinion is limited to lost earnings and the information he
had reviewed. Id. Indeed, Dr. Ireland made this concession right after explaining
that he could not put a “specific dollar value” on seizures and early dementia allegedly
suffered by Boerste. Id. That is far afield, of course, from his ability to opine on lost
earnings.
Ironically, Boerste criticizes him on this basis as well, complaining that Dr.
Ireland did not evaluate the neuropsychology expert that Gibson relied on. But Dr.
Ireland lacks expertise in neuropathology. So why would either party or the Court
want him to opine on such matters? That earnings loss may have multiple causes
does not necessarily undermine Dr. Ireland’s conclusion about Boerste’s current
earnings relative to others with similar demographic characteristics. Such testimony
would help a lay juror evaluate Gibson’s conclusions and assess Boerste’s requested

10

losses. The Court agrees with Judge Lindsay’s sound recommendation and denies
Boerste’s motion to exclude Dr. Ireland.
CONCLUSION
The Court overrules Boerste’s objections (DN 248) and adopts the report and
recommendations (DN 246) granting in part and denying in part the motion to
exclude Drago (DN 178), granting the motion to exclude Dr. Smock (DN 180), denying
several motions to exclude (DN 179, 181, 182, 183, 184), and granting a motion to file
a surreply (DN 229) and to file a response out of time (DN 231).

November 22, 2021

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