Gage v. Jenkins et al
RULING granting in part and denying in part 109 Motions in Limine/ MOTION for Dauber/Kumho Hearing for Admissibility of Expert Witnesses, MOTION to Forbid Mention of criminal Conviction and Prison Disciplinary Record, NOTICE of Intent to Use Evide nce of Other crimes of Bad Acts("OCOBA") for Impeachment or other Purposes Authorized Under FRE404(B)(2), MOTION Requesting Permission for Assistance from Inmate Counsel Substitute During Pre-Trial Hearings, MOTION to Appoint Counsel for Limited Purposes at Trial. Signed by Judge Shelly D. Dick on 3/29/2017. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHRISTOPHER GAGE (#424395)
LEON JENKINS, ET AL.
Before the Court is Plaintiff’s Motion in Limine,1 pursuant to which he seeks various
forms of relief that the Court will address in sequence.
This Motion is opposed.2
Pro se Plaintiff, an inmate confined at the Louisiana State Penitentiary (“LSP”),
Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against Capt. Leon
Jenkins, Lt. Robert Rowe, Major Eric Hinyard, Lt. Col. Linden Franklin, Sgt. Tywanna
Taylor, Sgt. C.B. Johnson, and Cadet Kenneth Jarvis. 3
Plaintiff alleges that his
constitutional rights were violated on November 3, 2012, when he was subjected to
excessive force on that date.
REQUEST FOR DAUBERT/KUMHO HEARING FOR ADMISSIBILITY OF
Initially, Plaintiff challenges the admissibility of Defendants’ expert, Dr. Randy
Lavespere, and requests a hearing relative to the admission of the expert’s testimony at
trial in accordance with Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993)
and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Rec. Doc. 109.
Rec. Doc. 122.
Plaintiff has voluntarily dismissed his claims asserted against Defendant, Tywanna Taylor. See Rec.
Docs. 30 and 61. In addition, Plaintiff’s claim asserted against Defendants in their official capacities has
been dismissed by the Court. See Rec. Doc. 89.
Lavespere’s testimony as being unreliable because Dr. Lavespere was not Plaintiff’s
treating physician on the date of the incident complained of and, accordingly, his
testimony will not be based upon personal knowledge of the pertinent events. Plaintiff
further asserts that Lavespere’s testimony is inherently unreliable and suspect because
Lavespere has previously been convicted of a felony drug offense and has since
undergone continuing medical treatment and monitoring for drug dependency.
Plaintiff suggests that Lavespere will provide biased testimony in favor of Defendants
because the Louisiana Department of Public Safety and Corrections has assisted
Lavespere with his employment and position at the Louisiana State Penitentiary.
Rule 702 of the Federal Rules of Evidence provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert has reliably applied the principles and methods to the facts
of the case.
Pursuant to its express terms, Rule 702 does not render all expert testimony
Further, even if the proposed expert testimony satisfies each of the
elements set forth in the Rule, the testimony may still be excluded pursuant to the
discretionary provisions of Fed R. Evid. 403, which allow a Court to “exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
United States v. Scavo, 593 F.2d 837, 844 (8th Cir. 1979).
When a Daubert challenge is made to the testimony of a proposed expert, a district
court may, but is not required to, hold a hearing at which the proffered opinion may be
When a hearing is not held, “a district court must still perform its
gatekeeping function by performing some type of Daubert inquiry.”6 “At a minimum, a
district court must create a record of its Daubert inquiry and ‘articulate its basis for
admitting [or denying] expert testimony.’”7
The role of the trial court is to serve as the gatekeeper for expert testimony by
making a determination whether the expert opinion is reliable.
As the Fifth Circuit has
[W]hen expert testimony is offered, the trial judge must perform a screening
function to ensure that the expert's opinion is reliable and relevant to the
facts at issue in the case. Daubert went on to make “general observations”
intended to guide a district court's evaluation of scientific evidence. The
nonexclusive list includes “whether [a theory or technique] can be (and has
been) tested,” whether it “has been subjected to peer review and
publication,” the “known or potential rate of error,” and the “existence and
maintenance of standards controlling the technique's operation,” as well as
“general acceptance.” The Court summarized:
The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its
overarching subject is the scientific validity and thus the evidentiary
relevance and reliability—of the principles that underlie a proposed
submission. The focus, of course, must be solely on principles and
methodology, not on the conclusions that they generate.8
The cases following Daubert have expanded upon the listed factors and have explained
that the list is not all-encompassing and that not every factor is required in every case.9
Indeed, courts may look to other factors as well.10 In Fayard v. Tire Kingdom, Inc., 2010
Carlson v. Bioremedi Therapeutic Systems, Inc., 822 F.3d 194, 201 (5th Cir. 2016).
Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) (internal citations omitted).
See, e.g., General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997); Guy v. Crown Equipment Corp., 394
F.3d 320, 325 (5th Cir. 2004).
See General Electric Co. v. Joiner, supra, 522 U.S. at 146.
WL 3999011, *1 (M.D. La. Oct. 12, 2010), this Court explained:
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702 and Daubert, which provide that the court serves as a
gatekeeper, ensuring all scientific testimony is relevant and reliable. This
gatekeeping role extends to all expert testimony, whether scientific or not.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Under Rule
702, the court must consider three primary requirements in determining the
admissibility of expert testimony: 1) qualifications of the expert witness; 2)
relevance of the testimony; and 3) reliability of the principles and
methodology upon which the testimony is based.11
This Court has broad discretion in deciding whether to admit expert opinion
“Notwithstanding Daubert, the Court remains cognizant that ‘the rejection of expert
testimony is the exception and not the rule.’” 13
Further, as explained in Scordill v.
Louisville Ladder Group., L.L.C., 2003 WL 22427981 (E.D. La. Oct. 24, 2003):
The Court notes that its role as a gatekeeper does not replace the traditional
adversary system and the place of the jury within the system. As the
Daubert Court noted, “[v]igorous 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
The Fifth Circuit has added that, in determining the
admissibility of expert testimony, a district court must defer to “‘the jury's
role as the proper arbiter of disputes between conflicting opinions. As a
general rule, questions relating to the bases and sources of an expert's
opinion affect the weight to be assigned that opinion rather than its
admissibility and should be left for the jury's consideration.”’14
In applying the foregoing analysis and in evaluating the proposed testimony of Dr.
Id. (internal citation omitted).
See, e.g., General Electric Co. v. Joiner, supra, 522 U.S. at 138-39 (holding that an appellate court’s
review of a trial court’s decision to admit or exclude expert testimony under Daubert is made under the
abuse of discretion standard); Watkins v. Telsmith, Inc. supra, 121 F.3d at 988 (holding that “[d]istrict courts
enjoy wide latitude in determining the admissibility of expert testimony”); Hidden Oaks Ltd. V. City of Austin,
138 F.3d 1036, 1050 (5th Cir. 1998) (“Trial courts have ‘wide discretion’ in deciding whether or not a
particular witness qualifies as an expert under the Federal Rules of Evidence”).
Johnson v. Samsung Electronics America, Inc., 277 F.R.D. 161, 165 (E.D. La. 2011), citing Fed. R. Evid.
702 Advisory Committee Note (2000 amend.).
Id. at *3 (internal citations omitted).
Randy Lavespere, the Court concludes that the testimony of this witness shall be allowed.
Dr. Lavespere is a licensed physician in the State of Louisiana and is the Medical Director
at the Louisiana State Penitentiary where Plaintiff is confined.
As such, Dr. Lavespere
has expertise relative to issues of medical treatment and diagnosis, particularly in the
corrections environment, and can review and explain the notations, test results, and
diagnoses contained in Plaintiff’s medical records.
Whereas the Court expresses a
general preference for testimony provided by physicians who have provided direct
treatment or evaluation in this context, the Court notes that Plaintiff has listed as a witness
at trial the prison physician who did, in fact, provide treatment on the date of the incident
As noted above, Fed. R. Evid. 702 allows for the introduction of expert opinion
evidence when “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.”
view, Dr. Lavespere meets this test.
In the Court’s
To the extent that Plaintiff may wish to attempt to
impeach this witness by addressing issues of credibility and bias as referenced in the
instant motion, the Court will entertain such an attempt at trial, deferring to the “jury's role
as the proper arbiter of disputes between conflicting opinions.”15
REQUEST TO FORBID MENTION OF PLAINTIFF’S CRIMINAL CONVICTION
AND DISCIPLINARY RECORD
Plaintiff next seeks to exclude evidence regarding his prior conviction[s] and
evidence regarding his disciplinary record during the period of his incarceration.
Rule 609 of the Federal Rules of Evidence allows the introduction of evidence of prior
felony convictions for impeachment purposes.
Scordill v. Louisville Ladder Group., L.L.C., supra.
Although the Rule envisions that the
prejudicial effect of this evidence may be weighed against its probative value, the law is
clear that the “prejudice-weighing prerequisite to admissibility of felony convictions
applies only in criminal trials.”16
Accordingly, “Rule 609(a)(1) requires a trial judge to
permit impeachment of a civil witness with evidence of prior felony convictions regardless
of ensuant unfair prejudice to the witness or the party offering the testimony.” 17
Accordingly, Plaintiff’s Motion must be denied in this respect.
Notwithstanding, the Court
believes, in its discretion, that although the fact of Plaintiff’s prior conviction[s] may be
admissible, evidence regarding the offenses committed or the factual details surrounding
or underlying the convictions should be excluded as irrelevant and as calculated only to
inflame the jury.
This determination shall also apply to Plaintiff’s inmate witnesses.
Further, the Court notes that Rule 609(b) generally mandates the exclusion of evidence
of convictions if the convictions are more than ten years old or if the sentences for same
were completed more than ten years prior to trial.
Accordingly, the Court finds that
evidence of any such age-limited convictions should also be excluded.
Notwithstanding the foregoing, it appears that criminal proceedings were instituted
against Plaintiff arising out of the events of November 3, 2012 and, according to
Defendants, Plaintiff pleaded nolo contendere to simple battery as a result thereof.
Whereas evidence of this conviction might be independently relevant to the issues in this
proceeding, the Court notes that the Parties have signified a willingness to enter into a
stipulation relative to these facts.18 Accordingly, pending the entry of such stipulation, it
is appropriate that the Court defer ruling as to the referenced criminal proceedings.
See Miller v. Credit, 2015 WL 1246557 (M.D. La. March 18, 2015), citing Coursey v. Broadhurst, 888
F.2d 338 (5th Cir. 1989).
See Rec. Doc. 124 at p. 5.
Plaintiff also seeks to exclude evidence regarding his disciplinary record during the
period of his incarceration.
In this regard, Plaintiff is correct that evidence regarding
unrelated instances of misconduct is not generally admissible to show that a person has
a bad character or acted improperly on another occasion, see Fed. R. Evid. 404(a)(1) and
Whereas such evidence may be allowed under certain circumstances, see Fed.
R. Evid. 404(a)(3) and (b)(2), those circumstances do not appear to be applicable in the
Accordingly, it is appropriate that Defendants be barred from making
reference to the details of Plaintiff’s disciplinary record at trial (as well as to the disciplinary
records of Plaintiff’s inmate witnesses), with the single exception that Plaintiff has signified
his willingness to stipulate “that he violated prison rules [on November 3, 2012] (1) by
being in possession of a cellphone and charger and (2) by engaging in a physical
altercation with a security officer” on that date.19
NOTICE OF INTENT TO USE EVIDENCE OF OTHER CRIMES OR BAD ACTS
FOR IMPEACHMENT OR OTHER PURPOSES AUTHORIZED UNDER FED. R.
Plaintiff next seeks to provide notice that he will seek to introduce at trial, for
purposes of impeachment, evidence regarding other crimes or bad acts committed by
Defendants or Defendants’ witnesses.
formal notice is required in a civil case.
As Plaintiff acknowledges, however, no such
Further, with one exception, Plaintiff fails to
identify any crimes or bad acts that he may seek to address and fails to identify the
Defendants or witnesses against whom the evidence will be introduced. Accordingly, it
is appropriate that a determination as to the proposed evidence be generally deferred to
Notwithstanding, the Court notes that evidence of the prior conviction of Dr. Randy
See Rec. Doc. 124 at p. 5.
Lavespere may be admissible pursuant to the provisions of Fed. R. Evid. 609 as
REQUEST FOR ASSISTANCE FROM AN ATTORNEY OR INMATE COUNSEL
SUBSTITUTE DURING PRE-TRIAL HEARINGS AND AT TRIAL
Finally, Plaintiff requests that counsel be appointed for the limited purpose of
assisting with Plaintiff’s direct examination at trial and that a participant in LSP’s Inmate
Counsel Substitute program be allowed to be present at trial and assist Plaintiff with the
presentation of his evidence and the examination and cross-examination of witnesses.
First, the Court has previously determined that appointment of counsel in this case is
neither necessary nor warranted.20
Plaintiff is advised that, to the extent he is concerned
about the manner in which his own testimony will be presented during his case in chief,
he will be allowed to testify by providing a narrative statement after being sworn as a
witness and that a question-and-answer format will not be required. Second, with regard
to Plaintiff’s request for assistance from an Inmate Counsel Substitute, the Court has
allowed such assistance in the past, with Plaintiff’s express understanding that the
designated Inmate Counsel Substitute shall not be allowed to act as an attorney and shall
not be allowed to address the Court or the jury.
Subject to that limitation, Plaintiff’s
request in this regard shall be granted.
Accordingly, based on the foregoing,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Daubert/Kumho Hearing to
Determine Admissibility of Expert Witness 21 is hereby GRANTED IN PART AND
DENIED IN PART, such that (1) expert testimony by Dr. Randy Lavespere shall be
See Rec. Doc. 100.
Rec. Doc. 109.
allowed; (2) evidence regarding the fact of Plaintiff’s (and inmate witnesses’) prior felony
conviction[s] is allowed for the limited purpose stated in this Ruling, except that evidence
regarding criminal proceedings arising from the events of November 3, 2012 is deferred
pending the Parties’ agreement to an appropriate stipulation; (3) evidence regarding
Plaintiff’s (and inmate witnesses’) disciplinary records while incarcerated is generally
disallowed except as stated in this Ruling and subject to the Parties’ agreement to an
appropriate stipulation; (4) a determination regarding the admissibility of evidence of other
crimes or bad acts is deferred to trial; (5) Plaintiff’s request for appointment of counsel to
assist at trial is DENIED; and (6) Plaintiff’s request for assistance from an LSP Inmate
Counsel Substitute at trial is GRANTED, such that Michael Zihlavsky (or designated
alternative participant in the LSP Inmate Counsel Program if Zihlavsky does not qualify)
shall be allowed to sit at counsel table with Plaintiff and provide advice and assistance to
Plaintiff during trial but shall not to be allowed to act as an attorney, speak on the record,
or address the jury or the Court.
Signed in Baton Rouge, Louisiana on March 29, 2017.
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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