Washington v. Jenkins et al

Filing 124

ORDER GRANTING 120 Defendant's Motion to Strike Expert Testimony by Wayne Gradman, MD. Signed by Magistrate Judge Elizabeth A. Stafford. (Williams, Marlena).

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION
JERRY WASHINGTON,
Plaintiff,
MICHIGAN DEPARTMENT OF
COMMUNITY HEALTH,

Civil Action No. 10-12233
Honorable Paul D. Borman
Magistrate Judge Elizabeth A. Stafford

Intervenor,
v.
DR. EDDIE JAMES JENKINS, et al.,
Defendants.
__________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO STRIKE EXPERT
TESTIMONY BY WAYNE GRADMAN, M.D. WHICH CONCLUDES
DEFENDANT ACTED WITH DELIBERATE INDIFFERENCE [120]
I.

INTRODUCTION
Plaintiff Jerry Washington’s First Amended Complaint alleges that

Defendant Eddie Jenkins, M.D. was deliberately indifferent to his serious
medical needs, which resulted in his right leg being amputated below the
knee. [94]. This case was referred to the undersigned to resolve all pretrial
matters pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). [123]. Before the
Court is Jenkins’ motion to strike expert testimony by Wayne Gradman,
M.D., which concludes that he acted with deliberate indifference. [120].

Washington did not respond to Jenkins’ motion, and the time to do so has
long passed. The Court will grant the motion.
II.

ANALYSIS
Jenkins argues that many of Dr. Gradman’s opinions are inadmissible

under Federal Rule of Evidence 704 because they are legal conclusions
that embrace the ultimate issue of whether he was deliberately indifferent
to Washington’s serious medical needs. Specifically, Jenkins challenges
as inadmissible Dr. Gradman’s conclusion that he: (1) “intentionally denied
medical care” to Washington, (Deposition of Dr. Gradman at p. 33); (2)
acted “with callous indifference or cruel and unusual punishment” (id. at p.
17); (3) “needlessly and callously withheld” medical care from Washington
(Dr. Gradman Expert Report at p. 8); (4) had a “callous disregard of
[Washington]” (id. at p. 11); and (5) “displayed callous indifference to Mr.
Washington’s serious medical condition” (id. at p. 14). The Court agrees
with Jenkins.
Although “[a]n opinion is not objectionable just because it embraces
an ultimate issue,” Rule 704(a), the evidence must still be “otherwise
admissible.” Woods v. Lecureux, 110 F.3d 1215, 1219 (6th Cir. 1997)
(citations omitted). In Woods, the Sixth Circuit affirmed the district court’s
decision to prohibit the plaintiff’s expert witness from using the term
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“deliberately indifferent” to describe the defendants’ conduct. Id. In doing
so, the Court held that “testimony offering nothing more than a legal
conclusion – i.e., testimony that does little more than tell the jury what
result to reach – is properly excludable under the Rules.” Id. at 1220. See
also Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994) (“Although
an expert’s opinion may ‘embrace[ ] an ultimate issue to be decided by the
trier of fact[,]” Fed.R.Evid. 704(a), the issue embraced must be a factual
one.’”).
Here, the above-listed opinions by Dr. Gradman similarly constitute
legal conclusions that do “little more than tell the jury which result to reach.”
Wood at 1220. This is not helpful to the jury.
Moreover, whether Jenkins intentionally withheld medical care from
Washington, or whether he was deliberately or callously indifferent to
Washington’s serious medical needs, depends on Jenkins’ state of mind,
which Dr. Gradman could not know. Id. at 1221. The challenged opinions
give the false impression that Dr. Gradman has insight into Jenkins’ mental
state, which is not helpful. “For a witness to stack inference upon inference
and then state an opinion regarding the ultimate issue is even more likely to
be unhelpful to the trier of fact.” Id.
Accordingly, Dr. Gradman’s opinions at issue, and all other similar
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opinions not listed which offer nothing more than a legal conclusion, are
struck from the record. Washington cannot rely on these inadmissible
opinions to oppose summary judgment.
IT IS ORDERED.
s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge
Dated: January 30, 2015

NOTICE TO THE PARTIES REGARDING OBJECTIONS
The parties’ attention is drawn to Fed. R. Civ. P. 72(a), which
provides a period of fourteen (14) days from the date of receipt of a copy of
this order within which to file objections for consideration by the district
judge under 28 U.S. C. §636(b)(1).

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s ECF
System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 30, 2015.
s/Marlena Williams
MARLENA WILLIAMS
Case Manager

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