Rhinehart v. Scutt et al

Filing 322

ORDER Granting in Part and Denying in Part Defendants' 310 Daubert Motion. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID L. RHINEHART and LEWIS
RHINEHART, Joint Personal
Representatives of the Estate of
KENNETH A. RHINEHART,
Deceased,

Case No. 2:11-cv-11254
HONORABLE STEPHEN J. MURPHY, III

Plaintiffs,
v.
DEBRA SCUTT, et al.,
Defendants.
/
OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' DAUBERT MOTION [310]
Before the Court is Defendants' renewed motion to exclude the testimony of Plaintiffs'
retained expert, Dr. Stuart Finkel. Defendants previously filed an omnibus motion seeking,
among other things, to preclude the expert testimony of Finkel for failing to satisfy Rule
702. The Court held a hearing, denied the motion without prejudice, and permitted
Defendants to file a renewed motion further setting forth their argument that Finkel's expert
opinion is not scientifically supported. The issues presented are straightforward, so no
hearing is necessary. The Court will grant the motion in part, and deny it in part.
LEGAL STANDARD
Federal Rule of Evidence 702 governs expert testimony. The rule permits an expert
to testify in the form of an opinion if:
(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 Supreme Court's decision in Daubert provided additional context for employing
the rule. When faced with a proffer of expert testimony, a trial court must first determine
under Rule 104(a), "whether the expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993). The trial court is required to make "a
preliminary assessment of whether the reasoning or methodology underlying the testimony
is scientifically valid and of whether that reasoning or methodology properly can be applied
to the facts in issue." Id. at 592–93.
The burden of establishing the admissibility of expert testimony rests on the party
offering the testimony. Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000). And though
"the rejection of expert testimony is the exception rather than the rule," the offering party
must establish its admissibility by a preponderance of proof. Fed. R. Evid. 702 Advisory
Committee Note (2000); Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir.
2001).
DISCUSSION
Stuart Finkel is a medical doctor who is board-certified in gastroenterology and
internal medicine. Finkel Report, ECF 263-10, PgID 5373. Finkel authored a report and
made various conclusions regarding Rhinehart's treatment and the actions of the doctors
who cared for him. At the hearing on Defendants' previous motion, the Court stated that the
Report itself will not be admitted into evidence because it contains Finkel's various legal
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conclusions and statements about others' knowledge or states of mind. But Finkel's report
also offered medical opinions and Plaintiffs intend to call Finkel as an expert witness at trial
to testify to those opinions. Defendants now move the Court to limit his in-court testimony
pursuant to Daubert and Rule 702.
Although Defendants' requested relief is general—it describes only "irrelevant and
scientifically unsupported opinions"—their brief more specifically objects to Finkel testifying
to Rhinehart's fear of cancer and Rhinehart's alleged pain and suffering from not being
evaluated for a TIPS procedure. ECF 310, PgID 7668–69, 7672. The Court will therefore
limit its consideration to those grounds for preclusion.
The first issue is relevance. According to Defendants, because Rhinehart did not
ultimately have cancer, any testimony about his fear of having cancer is irrelevant. The
Court disagrees. One of the questions in the case is whether the Defendants were
deliberately indifferent to Rhinehart's need for a firm diagnosis. If the jury determines that
they failed to act out of deliberate indifference—thereby violating Rhinehart's Eighth
Amendment rights—then any emotional or physical harm he suffered as a result of their
indifference is relevant to the damages Plaintiffs seek. Finkel's testimony is limited to the
opinions consistent with his expertise, but the Court will not preclude him from testifying to
Rhinehart's fears on the grounds of irrelevance.
The second issue is that of pain and suffering associated with the lack of a TIPS
procedure. Defendants claim that there is "no scientific basis to support Dr. Finkel's opinion
that Mr. Rhinehart would have had less pain and/or suffering if he had been transferred to
a tertiary care center to possibly undergo[] a TIPS procedure while incarcerated." ECF 310,

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PgID 7671. Defendants also note that "[n]owhere in his report does Dr. Finkel opine that
portal hypertension actually causes any noticeable amount of pain or suffering." Id. at 7669.
On that narrow issue, Defendants have a better argument. An expert "who presents
testimony must employ in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field." Pluck v. BP Oil Pipeline Co.,
640 F.3d 671, 677 (6th Cir. 2011) (alterations and quotation marks omitted). None of the
materials before the Court—Finkel's report, his deposition testimony, and Plaintiffs'
response brief—assures the Court that Finkel's opinion that Rhinehart suffered physical
pain due merely to hypertension is based upon sufficient facts and reliable methods.
Testimony on that topic will therefore be precluded.
In sum, Finkel's report is replete with impermissible conclusions and speculation. His
expertise, limited to his work as a gastroenterologist, may assist the jury in understanding
medical procedures at issue in the case. To ensure that Finkel's testimony remains within
the bounds of Rule 702, the Court will require Plaintiffs to give the Court one day's notice
before calling Finkel as a witness. The Court will then hold a short hearing to ascertain
precisely what Finkel intends to offer and to and make any necessary rulings that will curb
impermissible testimony.
ORDER
WHEREFORE, it is hereby ORDERED that Defendants' motion to preclude the
testimony of Stuart Finkel [310] is GRANTED IN PART and DENIED IN PART.
SO ORDERED.

Dated: April 26, 2017

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Court Judge
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on April 26, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

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