Spikes v. McVea et al
Filing
106
ORDER AND REASONS - IT IS ORDERED that Defendants' 70 motion in limine is GRANTED IN PART. Signed by Judge Susie Morgan. (bwn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LARCE SPIKES,
Plaintiff
CIVIL ACTION
VERSUS
NO. 17-8164
DR. CASEY MCVEA, ET AL.,
Defendants
SECTION: “E” (2)
ORDER AND REASONS
Before the court is a motion in limine filed by Defendants Dr. Casey McVea, Paula
Stringer, Robin Bowman, Lesley Wheat, and Wendy Seal (“Defendants”) to exclude the
testimony of Plaintiff’s expert, Dr. Charles Ochello. 1 Plaintiff opposes the motion. 2 For the
reasons that follow, Defendants’ motion is GRANTED IN PART.
BACKGROUND
Plaintiff Larce Spikes is a former inmate at the Rayburn Correctional Center in
Angie, Louisiana. He alleges his broken hip went misdiagnosed as a pulled muscle for
forty-three days, and that after undergoing an operation to mend his hip, the medical staff
at Rayburn failed to provide him proper medical treatment, thereby exacerbating and
prolonging his pain. 3 In total, Spikes alleges he was “subjected to nearly nine months of
continuous deliberately indifferent medical care.” 4
Plaintiff’s expert, Dr. Charles Ochello, provided his expert report on September 13,
2018. 5 In his report, Dr. Ochello outlines “that the named defendants responsible for
providing care to Mr. Spikes failed to provide him with timely constitutionally adequate
R. Doc. 70.
R. Doc. 81.
3 R. Doc. 21.
4 R. Doc. 21 at 3.
5 R. Doc. 70-4.
1
2
1
medical care and instead subjected him to continuous and deliberately indifferent
medical care during his time at Rayburn Correctional Center.” 6
Defendants do not dispute that Dr. Ochello “may be an expert in emergency
medicine and that standard of care in certain circumstances” 7 but move to exclude the
testimony of Dr. Ochello on the grounds that his opinion that the Defendants were
deliberately indifferent is an inadmissible legal conclusion. 8 In his opposition, Plaintiff
does not dispute that Dr. Ochello cannot testify on an ultimate issue of law but proffers
Dr. Ochello as a “general medical expert familiar with physician practice in diagnoses and
post-operative care” who will “opine generally on adequacy of medical care.” 9
LAW AND ANALYSIS
Federal Rule of Evidence 702 permits an expert witness with “scientific, technical
or other specialized knowledge” to testify if such testimony “will help the trier of fact to
understand the evidence or to determine a fact in issue,” so long as (1) “the testimony is
based upon sufficient facts or data,” (2) “the testimony is the product of reliable principles
and methods,” and (3) “the expert has reliably applied the principles and methods to the
facts of the case.” 10 Under Daubert v. Merrell Dow Pharmaceuticals, Inc., courts, as
“gatekeepers,” are tasked with making a preliminary assessment of whether expert
testimony is both relevant and reliable. 11
While an expert witness is permitted to give his opinions on an “ultimate issue” of
fact, assuming he is qualified to do so, he is not permitted to make credibility
R. Doc. 70-4 at 1.
R. Doc. 70 at 1.
8 R. Doc. 70.
9 R. Doc. 81 at 2-3.
10 FED. R. EVID. 702.
11 See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002) (citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 597, 592–93 (1993)).
6
7
2
determinations or offer conclusions of law. 12 Federal Rule of Evidence 704 clarifies that
an opinion is not objectionable merely because it embraces an ultimate issue to be decided
by the trier of fact. 13 However, the Fifth Circuit has repeatedly held that Rule 704 does
not authorize experts to render legal opinions or reach legal conclusions. 14 Moreover,
testimony that tells the jury what conclusion to reach or merely states a legal conclusion
is not helpful to the jury. 15
The Fifth Circuit recognizes that deliberate indifference is a legal conclusion. 16 As
a result, Dr. Ochella’s opinion that certain conduct constituted deliberate indifference is
an inadmissible legal conclusion. Dr. Ochella will not be permitted to testify that any of
the defendants acted with deliberate indifference.
Because Plaintiff proffers Dr. Ochella as “a general medical expert familiar with
physician practice in diagnoses and post-operative care” 17 who will “opine generally on
[the] adequacy of medical care” 18 and Defendants do not dispute that Dr. Ochella “may
be an expert in emergency medicine and that standard of care in certain circumstances,” 19
FED. R. EVID. 704.
FED. R. EVID. 704.
14 See, e.g., Goodman v. Harris Cnty., 571 F.3d 388, 399 (5th Cir. 2009); United States v. $9,041,598.68,
163 F.3d 238, 255 (5th Cir. 1998); Snap-Drape, Inc. v. C.I.R., 98 F.3d 194, 198 (5th Cir. 1996); Owen v.
Kerr-McGee, 698 F.2d 236, 239 (5th Cir. 1983); see also Lackey v. SDT Waste and Debris Servs., LLC, No.
11-1087, 2014 WL 3866465, at *7–8 (E.D. La. Aug. 6, 2014) (“It is the job of the Court—not the expert—to
instruct the jury on the applicable law). See Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997) (“[O]ur
legal system reserves to the trial judge the role of deciding the law for the benefit of the jury.”).
15 See, e.g., Snap-Drape, 98 F.3d at 197–98 (noting that certain expert reports improperly contained legal
conclusions, which “would be of no assistance in making findings of fact”); Metrejean v. REC Marine
Logistics, L.L.C., No. 08-5049, 2009 WL 3062622, at *2 (E.D. La. Sept. 21, 2009) (citing Burkhart v.
Washington Metro. Area Transit Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997) (“‘Expert testimony that
consists of legal conclusions cannot properly assist the trier of fact’ in understanding evidence or
determining facts in issue.”)).
16 Doe v. Robertson, 751 F.3d 383, 388 (5th Cir. 2014) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994));
see also Fortune v. McGee, No. 2:12CV88-MTP, 2013 WL 4787351, at *9 (S.D. Miss. Sept. 6, 2013), aff'd,
606 F. App’x 741 (5th Cir. 2015) (“The issue of whether a defendant acted with deliberate indifference is a
legal conclusion.”) (citing Davis v. Burks, 98 F.3d 1338, 1996 WL 556791, *2 (5th Cir. 1996)).
17 R. Doc. 81 at 2.
18 R. Doc. 81 at 3.
19 R. Doc. 70 at 1.
12
13
3
Dr. Ochella will be permitted to testify regarding the applicable standard of care and his
opinion on whether any of the Defendants breached that standard of care.
CONCLUSION
IT IS ORDERED that Defendants’ motion in limine20 is GRANTED IN PART.
New Orleans, Louisiana, this 10th day of December, 2018.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
20
R. Doc. 70.
4
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?