Sevy v. Barach et al

Filing 46

ORDER granting in part and denying in part Defendants' 36 Motion to Strike--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY SEVY,
Case No. 2:17-cv-13789
District Judge Laurie J. Michelson
Magistrate Judge Anthony P. Patti

Plaintiff,
v.
PHILIP BARACH and
HAROLD MARSHALL,
Defendant.
__________________________/

ORDER GRANTING IN PART and DENYING IN PART DEFENDANTS’
MOTION TO STRIKE PLAINTIFF’S EXPERT GERALD SHIENER (DE
36)
This lawsuit concerns the events of February 13, 2017, on which date
Plaintiff alleges he was assaulted and battered. (DE 1 ¶ 12.) Plaintiff’s 42 U.S.C.
§ 1983 causes of action are based on the First, Fourth and Fourteenth Amendments
to the United States Constitution, as well as unlawful arrest without probable
cause. (DE 16 ¶¶ 17-40.)
Currently before the Court is Defendants’ December 31, 2018 motion to
strike Plaintiff’s expert Gerald Shiener, attached to which are the report and
deposition testimony of Gerald A. Shiener, M.D. (DEs 36, 36-11, 36-12.) Plaintiff
has filed a response (DE 39), and Defendants have filed a reply (DE 41). Judge
Michelson referred this motion to me for hearing and determination, and a hearing

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was held on February 8, 2019, at which attorneys Ali W. Charara and T. Joseph
Seward appeared. Following oral argument, the Court issued its ruling from the
bench.
For the reasons stated on the record, all of which are incorporated herein by
reference, Defendants’ motion to strike Plaintiff’s expert Gerald Shiener (DE 36) is
GRANTED IN PART and DENIED IN PART. While the Court is cognizant of
the case law discussed during the hearing, it is important to note that Dr. Shiener’s
opinion relates to mental, not physical, injury. Therefore, reliance upon some
amount of subjective reporting by the patient is expected. Moreover, Dr. Shiener
supports his diagnosis with objective observations, as described in his mental
status examination. Thus, it is not unduly speculative. (See DE 36-11 at 5.)
Accordingly, while some inconsistencies exist between the actual facts of the case
and some of the report’s statements, the essential facts are consistent and
materially corroborated, and the June 11, 2018 report of Gerald A. Shiener, M.D.
(DE 36-11) is, as to the diagnosis of post-traumatic stress disorder (PTSD), “based
on sufficient facts or data[.]” Fed. R. Evid. 702(b).
However, while most of the inconsistencies are immaterial and do not
deprive the opinion of “sufficient facts or data” (and may be attacked through
cross-examination to undermine their weight or credibility), the same cannot be
said about the timing discrepancy. Specifically, Dr. Shiener’s report describes the
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event in question as having occurred on February 13, 2016, when the complaint
alleges that it took place on February 13, 2017. (Compare DE 36-11 at 2, 6; DE 1
¶ 12.) Thus, Dr. Shiener’s statement that Plaintiff’s “symptoms have been
persistent for a period of more than 18 months portends a poor prognosis for
further recovery[,]” (DE 36-11 at 6), is foundationally inaccurate and material to
Dr. Shiener’s conclusion regarding Plaintiff’s prognosis. Although the report is
dated June 11, 2018, the psychiatric evaluation took place on November 21, 2017.
Stated otherwise, at the time of the evaluation, it had only been 281 days (or
approximately 9 months) since the incident in question. As such, the materially
inaccurate prognosis must be excluded, as it is not “based on sufficient facts or
data[.]” Fed. R. Evid. 702(b).
That being said, Plaintiff’s counsel: (a) may, no later than Friday, March 1,
2019, provide defense counsel with an affidavit or declaration from Dr. Shiener,
which indicates his understanding of the erroneous date (February 13, 2016) and
states whether his conclusion as to prognosis is affected or changed by the accurate
information (February 13, 2017); (b) must, no later than Friday, February 22,
2019, provide copies of Form 1099s his firm has provided to Dr. Shiener over the
past 5 years; and, (c) must, no later than Friday, March 1, 2019, provide a list of
cases in which Dr. Shiener, for the past 4 years, has participated in a lawsuit either
by providing a report or by testifying at a deposition or trial, consistent with Fed.
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R. Civ. P. 26(a)(2)(B)(v). Finally, Defendants will be permitted to re-depose Dr.
Shiener on these three discrete areas (although Defendants may not re-depose him
on his understanding of the erroneous date unless he opts to provide the abovedescribed affidavit or declaration), with Plaintiff’s counsel bearing the related
expense for Dr. Shiener’s time.
IT IS SO ORDERED.
Dated: January 18, 2019

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record on
February 11, 2019, electronically, and/or by U.S. Mail.

s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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